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381 | Personal space in multi-occupancy cell and prison overcrowding | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1987 and lives in Kuršanec. A. Background to the case 10. In a judgment of the Čakovec County Court ( Županijski sud u Čakovcu ) of 19 June 2008, upheld by the Supreme Court ( Vrhovni sud Republike Hrvatske ) on 3 February 2009, the applicant was sentenced to two years’ imprisonment for armed robbery. 11. On 2 July 2010 the Čakovec Municipal Court ( Općinski sud u Čakovcu ) sentenced him to one year’s imprisonment for theft, which was confirmed by the Čakovec County Court on 3 November 2010. 12. Following a request by the applicant, on 26 August 2011 a three-judge panel of the Čakovec County Court took into account those two convictions and sentenced him to a single term of two years and eleven months’ imprisonment. B. Conditions of the applicant’s detention in Bjelovar Prison 13. On 16 October 2009 the applicant was transferred from a semi-open regime in Turopolje State Prison ( Kaznionica u Turopolju ) to Bjelovar County Prison ( Zatvor u Bjelovaru ) to serve the prison sentence originally imposed by the Čakovec County Court on 19 June 2008 (see paragraph 10 above). The reason for the transfer, as indicated in a report of Turopolje State Prison, was the applicant’s inappropriate behaviour and threats of escape. 14. The applicant remained in Bjelovar Prison until 16 March 2011, when he was transferred to Varaždin County Prison ( Zatvor u Varaždinu ) following a decision by the Ministry of Justice Prison Administration ( Ministarstvo pravosuđa, Uprava za zatvorski sustav ) of 11 March 2011. 15. According to the applicant, during his stay in Bjelovar Prison he was placed in overcrowded cells. He alleged in particular that for a period of fifty days in total he disposed of less than 3 square metres (sq. m) of personal space, including for a period of twenty-seven consecutive days. There were also several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells (see paragraph 17 below). 16. The applicant further submitted that the cells in which he had been held were badly maintained, humid, dirty and insufficiently equipped with lockers and chairs for all inmates. The sanitary facilities were in the same room as the living area, from which they were not fully separated. Those facilities were about half a metre away from the dining table and there was a constant smell in the cell. Moreover, he had not been given any opportunity to engage in prison work and in general was not provided with sufficient access to recreational and educational activities. The prisoners were allowed to move freely outside the locked part of the prison between 4 and 7 p.m., and the out-of-cell facilities were inadequate and insufficient, particularly given that there was only an open recreation yard. The nutrition was poor and the hygiene conditions were inadequate, especially since the toilet was not separated from the living area. The inmates did not have sufficient access to hot water and were allowed to shower only once or sometimes three times per week. 17. According to the Government, while in Bjelovar Prison the applicant had at his disposal an average of 3.59 sq. m of personal space. He was held in four different cells, the conditions of which are detailed in the table below. The measurements of the cells indicate their overall size (as provided by the Government) and with the in-cell sanitary facility deducted (based on the methodology enunciated in paragraph 114 below). That calculation is based on an approximate measurement of the sanitary facility (1.9 sq. m) according to the floor plans of Bjelovar Prison, which the Government provided to the Court and which are not disputed by the applicant. Cell no. Period of detention Total number of inmates Overall surface area in sq. m Personal space in sq. m Surface minus sanitary facility in sq. m Personal space in sq. m 1/O 16.10-15.11.2009 6 19.7 3.28 17.8 2.96 1/O 16.11-19.11.2009 5 19.7 3.94 17.8 3.56 1/O 20.11.2009-05.02.2010 6 19.7 3.28 17.8 2.96 1/O 06.02-08.02.2010 5 19.7 3.94 17.8 3.56 1/O 09.02-10.04.2010 6 19.7 3.28 17.8 2.96 1/O 11.04.-20.04.2010 5 19.7 3.94 17.8 3.56 8/O 21.04.2010 8 22.88 2.86 20.98 2.62 8/O 22.04-29.04.2010 7 22.88 3.27 20.98 2.99 8/O 30.04-02.05.2010 6 22.88 3.81 20.98 3.49 8/O 03.05-05.05.2010 5 22.88 4.58 20.98 4.19 8/O 06.05-07.05.2010 6 22.88 3.81 20.98 3.49 8/O 08.05-09.05.2010 5 22.88 4.58 20.98 4.19 8/O 10.05.-25.05.2010 6 22.88 3.81 20.98 3.49 8/O 26.05.2010 5 22.88 4.58 20.98 4.19 8/O 27.05-02.06.2010 6 22.88 3.81 20.98 3.49 8/O 03.06-04.06.2010 5 22.88 4.58 20.98 4.19 8/O 05.06-16.06.2010 6 22.88 3.81 20.98 3.49 8/O 17.06-19.06.2010 5 22.88 4.58 20.98 4.19 8/O 20.06-30.06.2010 6 22.88 3.81 20.98 3.49 8/O 01.07-02.07.2010 7 22.88 3.27 20.98 2.99 8/O 03.07-05.07.2010 8 22.88 2.86 20.98 2.62 8/O 06.07-17.07.2010 7 22.88 3.27 20.98 2.99 8/O 18.07-13.08.2010 8 22.88 2.86 20.98 2.62 14.08-17.08.2010 Period spent in the prison hospital 8/O 18.08-26.08.2010 7 22.88 3.27 20.98 2.99 8/O 27.08-30.08.2010 5 22.88 4.58 20.98 4.19 4/O 31.08-02.09.2010 8 22.36 2.80 20.46 2.55 4/O 03.09.2010 7 22.36 3.19 20.46 2.92 8/O 04.09-06.09.2010 6 22.88 3.81 20.98 3.49 8/O 07.09.2010 4 22.88 5.72 20.98 5.24 8/O 08.09-16.09.2010 5 22.88 4.58 20.98 4.19 8/O 17.09.2010 6 22.88 3.81 20.98 3.49 8/O 18.09.2010 5 22.88 4.58 20.98 4.19 8/O 19.09-01.10.2010 6 22.88 3.81 20.98 3.49 8/O 02.10-05.10.2010 5 22.88 4.58 20.98 4.19 8/I 06.10-07.10.2010 5 22.18 4.44 20.28 4.05 8/I 08.10-19.10.2010 4 22.18 5.55 20.28 5.07 8/I 20.10-21.10.2010 3 22.18 7.39 20.28 6.76 8/I 22.10-23.10.2010 4 22.18 5.55 20.28 5.07 8/I 24.10-25.10.2010 5 22.18 4.44 20.28 4.05 8/I 26.10-28.10.2010 6 22.18 3.70 20.28 3.38 8/I 29.10-30.10.2010 5 22.18 4.44 20.28 4.05 8/I 31.10-04.11.2010 6 22.18 3.70 20.28 3.38 4/O 05.11.2010 6 22.36 3.73 20.46 3.41 4/O 06.11-09.11.2010 5 22.36 4.47 20.46 4.09 4/O 10.11-13.11.2010 6 22.36 3.73 20.46 3.41 4/O 14.11-18.11.2010 7 22.36 3.19 20.46 2.92 4/O 19.11-26.11.2010 8 22.36 2.80 20.46 2.55 4/O 27.11-30.11.2010 7 22.36 3.19 20.46 2.92 8/O 01.12-03.12.2010 6 22.88 3.81 20.98 3.49 8/O 04.12-09.12.2010 7 22.88 3.27 20.98 2.99 8/O 10.12-12.12.2010 8 22.88 2.86 20.98 2.62 8/O 13.12-21.12.2010 7 22.88 3.27 20.98 2.99 8/O 22.12-24.12.2010 8 22.88 2.86 20.98 2.62 8/O 25.12-31.12.2010 7 22.88 3.27 20.98 2.99 8/O 01.01-16.01.2011 6 22.88 3.81 20.98 3.49 8/O 17.01-25.01.2011 7 22.88 3.27 20.98 2.99 8/O 26.01-27.01.2011 6 22.88 3.81 20.98 3.49 8/O 28.01-23.02.2011 7 22.88 3.27 20.98 2.99 8/O 24.02-25.02.2011 8 22.88 2.86 20.98 2.62 8/O 26.02-28.02.2011 7 22.88 3.27 20.98 2.99 8/O 01.03-15.03.2011 5 22.88 4.58 20.98 4.19 8/O 16.03.2011 6 22.88 3.81 20.98 3.49 18. The Government further explained that each cell in which the applicant had been accommodated had had windows allowing in natural light and fresh air. Artificial light was also secured and all cells were heated by a central heating system and equipped with a communication system enabling the inmates to contact prison staff immediately in case of need. All cells had a toilet fully separated from the living area and equipped with its own ventilation system. All cells had direct access to drinking water. The cells were constantly maintained and some necessary reconstruction work and improvements to the facilities had been carried out in 2007, July 2009 and May-July 2010, as well as in 2011, 2012 and 2013. Furthermore, the inmates were provided with all necessary hygiene and sanitary facilities. This included a shower three times per week and after sports activities. Every inmate was also regularly provided with the necessary toiletries and cleaning supplies for keeping the cells clean. The inmates were provided with clean bedding and bedspreads every fifteen days, or more often if necessary. In addition, the inmates were provided with the necessary clothing although they were allowed to use their own clothes. Nutrition was based on an assessment by experts and the quality of the food was constantly monitored by the competent State authorities. The inmates were provided with three meals per day meeting the necessary nutrition requirements, as supervised by the prison doctor. Meals could be taken to cells or eaten in a common room. 19. The Government also explained that the inmates were allowed to move freely outside their cells in the morning and afternoon, and to use the indoor and outdoor facilities of Bjelovar Prison. This in particular included two hours of outdoor exercise and in addition free out-of-cell movement inside the prison between 4 and 7 p.m. Specifically, in the ordinary daily regime, the inmates would wake up at 7 a.m. on working days and at 7.30 a.m. on weekends and public holidays. They would then wash, tidy their beds, and have breakfast, followed by the morning cleaning of the cell. Leisure time was scheduled afterwards, until 1 p.m., when they had an opportunity to take part in a number of activities. Leisure time was followed by lunch served between 1 and 2 p.m. The period after lunch was usually set aside for various group activities and meetings with lawyers and prison staff. Between 4 and 7 p.m. all cell doors were opened again, enabling the inmates to move about within the prison and to use its facilities as they saw fit. Dinner was served from 7 p.m., followed by the evening tidying and cleaning of the cells and other rooms in the prison. 20. The Government submitted that Bjelovar Prison was equipped with a recreation area located in the courtyard, which, in addition to the asphalted parts, included a lawn. The surface area of the courtyard was 305 sq. m. There was also direct access to drinking water and artificial light as well as protection from inclement weather available in the recreation area. The gym was open between 8 a.m. and 12.30 p.m. and between 2 and 6 p.m., and the basketball court was open on working days between 3 and 4 p.m. and at the weekends in both the morning and the afternoon. The recreation area was also equipped with a badminton court and ping-pong tables. The inmates were able to borrow books and use other services of the Bjelovar library, which were regularly available in the prison. The prison administration also organised religious ceremonies and contacts with cultural and religious associations. Each cell was equipped with cable television, which could be watched between 7 a.m. and 11 p.m. during working days, and between 7.30 a.m. and midnight at weekends and on public holidays. There were also radio receivers in the cells and the possibility of borrowing and watching films from a collection available in Bjelovar Prison. In addition, the inmates were allowed to socialise by playing board games. There was also a room for spousal visits and the inmates were allowed to obtain various goods from outside the prison. Bjelovar Prison also offered a possibility of education in prison but the applicant had decided not to avail himself of that opportunity. Remunerated work in prison was available in accordance with the economic possibilities, which were at the time limited due to the general economic crisis. A possibility of work outside the prison existed but the applicant’s previous threats to escape and his inadequate behaviour in detention had not made him eligible for this possibility. During his stay in Bjelovar Prison, the applicant had regularly received medical treatment. He had seen his family four times while standing trial for another offence in Čakovec and had been allowed to speak to them by telephone twenty minutes per week, with an additional ten minutes on public holidays. 21. The Government substantiated their arguments with photographs taken in 2007, 2010 and 2011 in the context of the renovation of the prison and visits by various officials to the prison, floor plans and other relevant documentation related to the available facilities in Bjelovar Prison and the applicant’s health care and nutrition. C. The applicant’s complaints about the prison conditions 22. On 24 March 2010 the applicant lodged a request with the Bjelovar Prison administration through a lawyer, asking to be transferred to Varaždin Prison for personal and family reasons. 23. On 26 April 2010 he complained to the Ministry of Justice Prison Administration in general terms about the conduct of the Bjelovar Prison administration, alleging that they had never offered him the opportunity to have a meeting with the relevant officials, that his request for a transfer had been ignored and that the prison food had been inadequate. 24. The applicant again reiterated his request for a transfer to Varaždin Prison on 6 May 2010, citing personal and family reasons, particularly his family’s lack of financial means, which made it difficult for them to visit him. 25. On 14 July 2010 the Ministry of Justice Prison Administration replied to the applicant’s complaints, finding them ill-founded in all respects. It pointed out that he had been given sufficient opportunity to have contact with his family by telephone and while attending the court hearings in March, April and July 2010 in the criminal proceedings against him, that he had not been engaged in any work because there had been an insufficient number of work posts in Bjelovar Prison, that he had had seven meetings with the prison governor and twenty-five meetings with various other Bjelovar Prison officials, and that food had been prepared in consultation with experts, the prison diet having been continuously supervised by the prison doctor. 26. On 24 August 2010 the applicant complained about the conditions of his detention to a sentence-execution judge of the Bjelovar County Court ( Županijski sud u Bjelovaru ). He pointed out that central to his complaints was his wish to be transferred to another prison closer to his family. He also complained, in particular, that his request to engage in prison work had not been answered. He was being detained with seven other inmates in cell no. 8, which measured 18 sq. m in total and was inadequately equipped and maintained. Hygiene conditions were poor, given that he had been allowed to take a shower only three times per week. 27. Following the applicant’s complaint, the sentence-execution judge requested a detailed report from Bjelovar Prison concerning the conditions of his detention. 28. After obtaining the relevant report and hearing the applicant in person, on 7 October 2010 the sentence-execution judge dismissed his complaints as ill-founded. She found, in particular, that the applicant had sufficient personal space at his disposal, given that four other persons were at the time placed with him in the same cell. The sentence-execution judge also found that the applicant was provided with sufficient hygiene and sanitary facilities, and that he was not engaged in prison work since such opportunities did not exist for all prisoners in Bjelovar Prison. 29. On 15 October 2010 the applicant lodged an appeal against the sentence-execution judge’s decision with a three-judge panel of the Bjelovar County Court, alleging that she had erred in her factual findings, as cell no. 8 had been occupied by up to eight inmates. 30. On 21 October 2010 a three-judge panel of the Bjelovar County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the sentence-execution judge. It also explained that the required standard for personal space under the Enforcement of Prison Sentence Act, namely 4 sq. m, was the recommended minimum standard that should in principle be respected, but that there could be no automatic violation of a prisoner’s rights if such a standard was temporarily not complied with. In view of the fact that a reduction in the applicant’s personal space in cell no. 8 had only been temporary, the three-judge panel considered that there had been no violation of his rights. 31. On 5 November 2010 the applicant complained to the Bjelovar County Court about the decision of its three-judge panel. He argued that for the first six months following his arrival at Bjelovar Prison, he had been detained in cell no. 1, measuring 17.13 sq. m, where six inmates in total had been detained. He had then spent one month in cell no. 8 on the first floor with six inmates, which had measured 17.13 sq. m. He had then been placed in another cell, also marked “cell no. 8”, which again measured 17.13 sq. m, where he had spent six months with eight inmates. At the time of his complaint he was being held in cell no. 4 with six inmates. 32. On 20 November 2010 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), relying on Article 14 § 2 (equality before the law), Article 26 (equality before the State authorities) and Article 29 (right to a fair trial) of the Constitution, complaining in general terms of a lack of personal space and work opportunities in Bjelovar Prison. He also relied on section 74(3) of the Enforcement of Prison Sentences Act, guaranteeing adequate personal space to detainees, and alleged that this provision had not been complied with in his case. 33. On 26 November 2010 the applicant complained to the Ombudsperson ( Pučki pravobranitelj ) that he had not been granted a transfer to a prison closer to his family, and alleged in general terms that the conditions of his detention had been inadequate. 34. Meanwhile, in November 2010 the applicant joined a group of inmates who complained to the sentence-execution judge about inadequate general conditions in Bjelovar Prison. 35. By a letter of 7 December 2010 the Ombudsperson invited the applicant to further substantiate his complaints. 36. The applicant replied to that request on 21 December 2010, indicating that the sentence-execution judge and the three-judge panel of the Bjelovar County Court had never examined his complaints properly, and that he had not been granted 4 sq. m of personal space in detention as required under the Enforcement of Prison Sentences Act. 37. In March 2011 the applicant saw a psychiatrist, who found that the applicant was frustrated with his internment and the impossibility of seeing his family. 38. On 12 April 2011 the Ombudsperson replied to the applicant’s letter that, according to the information available, his accommodation in Bjelovar Prison had fallen short of the requirements of adequate personal space under the Enforcement of Prison Sentences Act. The Ombudsperson also pointed out that the cell where the applicant was being detained had been renovated in 2010, and complied with all hygiene and health standards. The Ombudsman also noted that, just like ninety-two other inmates, the applicant had not been engaged in prison work, as there had been an insufficient number of work posts for all prisoners. 39. On 5 June 2012 the Constitutional Court declared the applicant’s constitutional complaint (see paragraph 32 above) inadmissible as manifestly ill-founded. The relevant part of the decision reads: “In his constitutional complaint, the complainant was unable to show that the Bjelovar County Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide upon ... ” 40. The Constitutional Court’s decision was served on the applicant’s representative on 18 June 2012. | The applicant complained that he had been held in poor conditions at Bjelovar Prison. He alleged that he had disposed of less than 3 sq. m of personal space in his cell for a number of non-consecutive periods of a total duration of 50 days and personal space of between 3 and 4 sq. m in other periods. He also complained that the sanitary facilities, conditions of hygiene, food, the possibility of engaging in prison work and access to recreational or educational activities in the prison had been insufficient. |
452 | Treatment of disabled prisoners | I. THE CIRCUMSTANCES OF THE CASE A. Facts submitted at the time of the application 5. The applicant, who was born in 1972, is serving a thirty-year prison sentence imposed on 31 May 2007 by the Meurthe - et - Moselle Assize Court for murder, attempted murder and assault involving the use or threatened use of a weapon. He has been imprisoned since 17 May 2002 and will become eligible for release on 18 July 2027. 6. On 18 March 2006, while he was in prison in Nancy, the applicant fell several metres during an attempted escape and suffered a fractured spine. He spent several months at the Fresnes rehabilitation clinic before being transferred to Mulhouse Prison, where he encountered substantial difficulties ( particularly on account of the staircases, which made it impossible for him to move about unaided ), and Metz Prison, where his cell was not equipped for wheelchair use. He was subsequently transferred back to Fresnes from 5 November 2008 until 28 May 2009. From that date until 17 September 2014 he was held in Uzerche Prison, before being transferred to Poitiers-Vivonne Prison, where he is currently detained. 7. On 12 August 2010 the applicant applied to the Tulle judge responsible for the execution of sentences to have his sentence suspended on medical grounds, under Article 720-1-1 of the Code of Criminal Procedure ( see paragraph 27 below ). He explained that as a wheelchair user with paraplegia, he was not being detained in appropriate conditions since the premises were not designed for wheelchair use, and he was unable to receive the care he required. He noted that access to the toilet in his cell was undignified, that he could not reach all parts of the prison premises unaided, and that the provision of medical and paramedical care was inadequate, particularly as regards physiotherapy. He pointed out that he was unable to go to the showers autonomously and that the prison had assigned a prisoner to assist him for a payment of fifty euros per month. This prison orderly was responsible for cleaning the applicant ’ s cell and accompanying him to the showers and washroom. 8. In an order of 27 September 2010 the judge appointed two doctors as experts. They submitted their reports on 2 and 14 November 2010. 9. The report by Dr G., drawn up on 21 October 2010, concluded : “... Mr Mohammed Helhal has incomplete paraplegia with total effective urinary incontinence requiring self-catheterisation and round-the-clock use of a nappy. He also has major haemorrhoidal irregularities, for which he has refused any treatment. Mr Mohammed Helhal currently has active muscle relaxation in the two lower limbs, for which physiotherapy is required several times a week on a regular, long-term basis. That being so, Mr Mohammed Helhal ’ s state of health is not incompatible with imprisonment, subject to the express condition of being detained in a facility catering for his disability, where he can undergo regular physiotherapy and have appropriate access to a gym. ” 10. The report by Dr R. was drawn up on 28 October 2010 and read as follows: “... On 17 November 2009 ... Dr Dubois stated : ... ‘ his condition requires treatment by a physiotherapist in a specialist environment and daily pressure - sore relief ’. ... The most recent assessment at Bordeaux University Hospital, where the patient stayed from 5 to 12 March 2010, confirms that there has been a good sensorimotor recovery in the lower limbs and that mobility is possible with two walking sticks and a frame, whereas at present the patient mainly moves about in a wheelchair. Appropriate physiotherapy focusing on both the joints and the muscles would clearly enable the prisoner to perform his own transfers with technical support, which would also have the benefit of easing the complications at the pressure points. At the same time, alongside the favourable progress in this post-traumatic condition, the patient has an anal disorder as a result of haemorrhoid surgery, and this essentially causes discomfort on a functional level. Conclusion ... - The prisoner displays sensorimotor damage resulting from a thoracolumbar spine fracture; - The damage is stable with clear evidence of motor recovery in the lower limbs; - Daily physiotherapy would be justified to improve motor skills in the lower limbs and the quality of transfers, but this is not possible at Uzerche Prison as there is no on-site physiotherapist; - There is permanent sensory damage in the L5-S1 region requiring self-catheterisation, which is being adequately managed on a day-to-day basis by the prisoner; - All of these spinal conditions are currently stable and unlikely to worsen, but could improve with proper treatment; - The various disorders observed, in terms of both traumatic spinal cord injuries and anal damage, are not life-endangering for the prisoner; - The prisoner ’ s state of health is in my opinion not incompatible in the long term with continued detention; - The disorders currently observed are stable and will continue to develop on a chronic basis, justifying palliative care. ” 11. In a judgment of 3 February 2011 the Limoges Post-Sentencing Court dismissed the application for suspension of the applicant ’ s sentence. It took into account the two concurring medical opinions in finding that the applicant ’ s state of health was compatible in the long term with his imprisonment. However, the court observed that “ Uzerche Prison manifestly fails to satisfy the criteria for ensuring a suitable detention regime for the applicant, in terms of both the premises and the availability of paramedical care, despite the undisputed efforts by the prison ’ s management and staff to ease the prisoner ’ s living conditions as far as possible”. It then noted that there were custodial facilities that were equipped to cater for the applicant ’ s condition, such as Fresnes Prison or Roanne Prison, “ which is designed and organised in a manner compatible with accommodating disabled prisoners, and where [he] will be able to have the regular physiotherapy sessions that he rightly demands, since a masseur /physiotherapist comes to the prison almost every day”. The court concluded as follows: “ It therefore appears from all of the above considerations, both from a medical perspective and in terms of the prospect of arranging suitable conditions of detention, that the prisoner does not satisfy the requirements for having his sentence suspended on medical grounds.” 12. The applicant appealed against the judgment of 3 February 2011. He reiterated that besides the structural inadequacy of Uzerche Prison, he had not been offered any special arrangements in terms of medical and paramedical care ( physiotherapy and access to the gym). He also submitted that Roanne Prison was no more suitable than Uzerche Prison as it did not have a rehabilitation facility. 13. In a judgment of 3 May 2011 the Post-Sentencing Division of the Limoges Court of Appeal upheld the judgment of 3 February, holding: “ The two experts concurred in concluding that [the applicant ’ s] condition was not incompatible in the long term with detention provided that he was given physiotherapy and access to a gym. While it is indeed not possible for these requirements to be fulfilled at Uzerche Prison, where [ the applicant ] has been transferred at his own request to be closer to his family, it has not been shown that he cannot be accommodated in conditions catering for his disorders at Roanne Prison, and therefore the criteria for suspending the execution of his sentence have not been satisfied, particularly since [ the applicant ] continues to deny – as stated in his letter of 23 March 2011 – the serious criminal acts that led to his conviction .” 14. The applicant appealed on points of law. In a judgment of 31 August 2011 the Court of Cassation declared the appeal inadmissible. 15. In a letter of 28 February 2012 to the Registry of the Court, the applicant contended that he was not undergoing any physical rehabilitation, there being no physiotherapist at Uzerche Prison, and that he had no access to the gym. He wrote that his health was deteriorating on a daily basis and that he was being mistreated through the lack of provision of care. B. Facts brought to the Court ’ s attention in the parties ’ observations of 10 April and 14 June 2013 and the Government ’ s additional observations of 24 July 2013 1. Provision of care 16. According to the Government, the applicant has received the following medical assistance : ( a) twelve occasions of escorted leave between 3 May 2011 and 26 June 2012 for specialist consultations and medical imaging tests at Tulle Hospital and Limoges University Hospital; ( b) thirty-three medical appointments with a doctor from the prison medical unit, consisting of a medical examination on 28 May 2009 followed by consultations spread across his time at the prison ( ten in 2009, three in 2010, ten in 2011, six in 2012, one in 2013); ( c) three stays in hospital for several days in 2010, 2011 and 2012; ( d) technical assistance from nurses on fifty-five occasions between 2009 and 2013, plus weekly meetings with the prison nurse; ( e) eight psychiatric consultations and sixteen meetings with a psychiatric nurse; ( f) provision of medical equipment to alleviate or offset disabilities, including a walking frame ( June 2009), an anti- pressure-sore cushion ( August 2009), spectacles ( January 2010), a new wheelchair (September 2012), and an electrostimulation device ( February 2013). 17. In addition to the treatment described above, the Government informed the Court that from September 2012 the applicant had attended physiotherapy sessions at Uzerche Prison. The physiotherapist ’ s services had been engaged following three letters dated 18 November 2011, 28 December 2011 and 19 March 2012 in which the interregional director of the Prison Service had alerted the Director General of the Limousin Regional Health Agency to the detrimental effects of the lack of physiotherapy on the care provided to prisoners. 18. The Government added that the applicant had been offered the opportunity to attend yoga classes but had been removed from the list of those enrolled for the classes because of his non- attendance. 19. The applicant confirmed the occasions of escorted leave mentioned by the Government but pointed out that on each occasion he had been transferred by ambulance – with his wrists and ankles handcuffed – and had had to undergo a full body search beforehand and a rub-down search afterwards. He added that the full body searches carried out whenever he received visits and when he was escorted outside the prison were deeply humiliating; he was obliged to have his nappy inspected, and in order to proceed more quickly, several warders carried out this task together. During one inspection, a senior warder had said in front of everyone that “the boss had given instructions to inspect his nappy”. The applicant maintained that as a result of these practices, he had asked his sister to visit him less frequently. 20. With regard to the applicant ’ s complaints about the instances of escorted leave and the body searches, the Government pointed out that the physical damage he had suffered could not be regarded as having eradicated any security risk, since his health had no bearing on his potential connections on the outside and the risk of his escaping. To that end, they produced copies of two decisions dated 2011 (month illegible) and June 2012 ordering individual ( full body ) searches in connection with escorted leave for medical reasons. They noted that in May 2013 the applicant had been sent to a punishment cell for ten days following an assault on a fellow prisoner and the discovery of a mobile telephone in his cell. They stated that searches in the prison were not carried out systematically but on the basis of incidents noted during visits or in the cells. They produced three decisions ordering individual searches, dated 14 May and 26 December 2011 and 10 May 2013 ( involving searches of the applicant ’ s cell), and seven decisions ordering a one-off search of a specific sector of the prison after the visits received on 10 June 2011, 10 November 2011, 26 June 2012, 1 October 2012, 14 December 2012, 22 March 2013 and 31 May 2013. 21. With regard to physiotherapy, the applicant pointed out that he had only started receiving it in September 2012 and that it was limited to a weekly fifteen-minute session. He produced a medical certificate issued on 10 May 2013 by a doctor from the Outpatient Consultation and Treatment Unit ( unité de consultation et de soins ambulatoires – “the UCSA”) stating that his “ condition requires daily rehabilitation, which Uzerche Prison is unable to provide, both on account of the lack of qualified staff and because the premises are not suitably equipped. As a result, the patient cannot remain in this facility without his health suffering. He must be given the possibility of admission to a specialised facility.” The applicant submitted that the doctor was repeating what his colleagues had already noted on 17 November 2009 ( see paragraph 10 above ) and 11 March 2011; he produced a medical certificate signed on the latter date by a doctor from the UCSA who stated that the applicant could not remain in the facility without his health suffering and added that “his paraplegia must be treated in a rehabilitation centre ”. 22. With regard to the electrostimulation device, the applicant submitted that his doctor had obtained the funds needed to purchase it but that the prison authorities had not allowed him to do so. As to the possibility of attending yoga classes, the applicant pointed out that he had been urged to go no more than once a week in order to avoid “monopolising” the lift leading to where the classes were held. 23. The applicant again stressed that he was dependent on the prison orderly responsible for assisting him in his everyday activities. The prisoner currently “ assigned ” to that duty was the third since his admission to the prison, and the applicant was dependent on him for supplying incontinence products, accompanying him to the showers ( there was a step preventing unassisted wheelchair access ) and cleaning his cell. This level of dependency and the problems associated with his incontinence complicated his relationship with the orderly. Going to the shower was a stressful time because the structure did not shield him from the view of others and his incontinence exposed him to extremely humiliating situations, causing irritation or even hostility on the part of his fellow inmates, who were unwilling to put up with such inconvenience in the course of their personal hygiene activities. 24. Lastly, the applicant informed the Court that he had been temporarily transferred to a cell in the secure unit, further to a decision by the classification board, after a mobile phone had been found in his cell. Under the resulting regime, he had access to one hour ’ s exercise in the morning and one hour in the afternoon, despite the fact that a doctor had issued a certificate on 7 June 2013 stating that his condition required access to at least five hours ’ exercise a day. The Government stated that the applicant had been transferred back to his cell on 26 June 2013. 2. Prospect of a transfer to Roanne Prison 25. The applicant submitted that although the prison management had indeed encouraged him to request a transfer to Roanne Prison, their approach had been guided by purely administrative considerations unconnected to his care -related needs. The management had refused to give the slightest undertaking about the conditions in which he would be accommodated in Roanne and the care he could be given there. They had been unable to provide any guarantees as to care arrangements as there were six cells for disabled prisoners at that facility and they were all occupied, and a single physiotherapist came to the prison for four half-days a week to provide services for five hundred prisoners. The applicant contended that he had not applied for a transfer on the grounds that the prison in question did not offer appropriate care facilities and would simply have represented a further upheaval and ordeal for him following his repeated moves from one prison to another ( twelve transfers between 2002 and 2009). He referred to information obtained from International Prison Watch ( Observatoire international des prisons – OIP) by his sister and his lawyer and produced a copy of an email sent by OIP to his lawyer on 3 January 2011, reading as follows: “ I do not think that Meaux and Roanne are particularly well equipped although, like all recent establishments, they do have disabled cells. I attach a decision in which the Douai Court of Appeal found, in relation to another wheelchair user, that ‘ no custodial facility is equipped to cater for the applicant ’ s condition ’ and accordingly suspended the execution of his sentence. ... Nevertheless, I consider it important to stress the consequences of a change of prison, not only in terms of family ties but also as regards the procedure for requesting a suspension of the sentence, since that procedure would then have to be started over again. ...” The applicant emphasised in any event that the medical unit at Uzerche Prison had not recommended his transfer to Roanne but rather the provision of treatment in a specialist facility. 26. The Government submitted that the applicant ’ s transfer to Roanne Prison had been envisaged by the health-care professionals at Uzerche Prison but observed that he had never actually requested such a transfer; after mentioning a transfer request, he had indicated the following day ( 9 August 2011 ) that he did not intend to pursue it, for reasons that were unclear. The Government also produced a note drawn up on 12 June 2012, which in their submission suggested that “ the applicant ’ s main motivation related to the previous decisions of the judicial authorities on requests for suspension of sentences, rather than to the treatment he might receive ”. They rejected the applicant ’ s arguments about the inability of Roanne Prison to accommodate him and submitted, in their additional observations, that only three of the six cells reserved for people with reduced mobility were occupied. They produced a copy of an email sent by the Prison Service in July 2013 indicating the availability of such cells. They also pointed out that an agreement had been signed in June 2013 between Roanne Prison, the UCSA and a non-governmental organisation with a view to providing appropriate care for dependent prisoners with specialist professional assistance. | Suffering from paraplegia of the lower limbs and urinary and faecal incontinence, the applicant complained that, in view of his severe disability, his continuing detention amounted to inhuman and degrading treatment. |
394 | Medical care / treatment during hunger strike | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1972 and lives in Vienna. At the time of the events he was a national of the former Socialist Federal Republic of Yugoslavia. By the time of lodging the application he had obtained Austrian citizenship. A. The events at issue 7. On 28 April 1994 the Vienna Federal Police Authority ( Bundespolizeidirektion ) ordered the applicant's detention with a view to expulsion on account of his illegal stay in Austria. At that time a request by the applicant for asylum had been refused by the second-instance authority. 8. On the same day the applicant was taken to the Vienna East Police Prison ( Polizeigefangenenhaus Wien Ost ). On 30 April 1994 he went on hunger strike. 9. In accordance with the relevant regulations (see paragraph 45 below ), a report was drawn up to document the applicant's hunger strike. According to the entries in that report, the applicant, whose height is 1.77 metres, weighed 64. 8 kilograms when he started his hunger strike. Subsequently, his weight was recorded every four or five days, namely on 5, 9, 14, 19, 24, 27 and 28 May 1994. Apparently his blood-sugar level was also checked but the findings were not recorded in the report. 10. The events at issue took place when the applicant had been on hunger strike for three weeks. The exact date is in dispute between the parties. 11. According to the applicant, the events happened in the evening of 21 May 1994. He submits that he has consistently referred to that date throughout the domestic proceedings and the Convention proceedings, and that the Independent Administrative Panel in its decision of 3 September 1999 also established 21 May 1994 as the date of the events at issue. 12. According to the Government, the events at issue took place on 22 May 1994. They referred to the entry in the disciplinary file of the Vienna Police Prison, according to which the applicant had created unrest in the course of 22 May 1994 ( banging against the cell door and repeatedly ringing the bell to call prison officers and finally pretending to be unconscious ) and had been transferred to an individual cell on that date as a disciplinary measure. 13. While the parties disagreed as to the date of the events, it is not in dispute that, on the evening at issue, the applicant's cellmates called the police officers on duty and informed them that the applicant had slipped while going to the toilet and had sustained a bleeding injury to his head. Subsequently, the applicant was taken to an individual cell. The injury to his head was bandaged by a paramedical officer. 14. On 24 May 1994 the applicant was taken to a prison doctor, who noticed and mentioned in his written diagnosis several skin abrasions in the lumbar region of the applicant's backbone, one of which is described as being substantial. He treated these injuries with a spray and bandages. Moreover, he recorded the applicant's weight and measured his blood pressure and blood-sugar level. 15. On the same day Mr Staub, a member of an NGO looking after the applicant, Mrs Pichler, a journalist, and Mr Horvath, a friend, visited the applicant in prison. Mrs Pichler subsequently published an article in the magazine News reporting that the applicant had told her that after his accident four officers had dragged him by the feet out of his cell and kicked him. They had also stabbed him behind the ears with ballpoint pens and hit him repeatedly in the face. He had shown the journalist abrasion marks on his back and hip and small round bruises behind his ears. 16. On 26 May 1994 a prison doctor changed the bandages and also examined the applicant's head. In his written diagnosis of that date he mentioned, in addition to a small healed scratch on the middle of the applicant's head, two small scabs such as would form after a superficial skin abrasion behind both ears. He further noted that the applicant had been able to walk on his own to the second floor, down to the ground floor and then back to his cell on the first floor. He did not raise any other specific health complaints. Again the doctor recorded the applicant's weight, which was down to 53.5 kilograms, and his blood pressure and blood-sugar level. He noted that on account of his loss of weight, the applicant was in a weakened condition and his release would have to be considered within the next few days. 17. On 28 May 1994 the prison doctor found the applicant unfit for detention. By then his weight had decreased to 53. 2 kg. He was released from prison on the same day. 18. Later on, the applicant's asylum request was granted. B. Proceedings brought by the applicant 1. First set of proceedings before the Independent Administrative Panel 19. On 17 June 1994 the applicant filed a complaint with the Vienna Independent Administrative Panel ( Unabhängiger Verwaltungssenat ). He submitted that on 21 May 1994 the four prison officers called by his cellmates had dragged him by his feet out of the cell. They had then beaten him, kicked him in his belly and kidneys and pressed a ballpoint pen behind his ear lobes. At that time he had lost consciousness. He had subsequently been dragged from the third floor along the steps down to the cellar, in the process suffering injuries and haematomas along his backbone and skin abrasions on his heels. Having been given a bandage that was insufficient, he had been locked in an individual cell in the cellar without daylight. Only upon a request by Mr Staub, who had visited him in prison on 24 May 1994, had a paramedic seen him and eventually, upon his insistence, taken him to the prison's doctor. The treatment he had suffered at the hands of the police officers on 21 May 1994 and the fact that he had subsequently been kept until 24 May 1994 in solitary confinement without daylight and without medical care were, in the applicant's submission, in violation of his rights under Articles 3 and 5 of the Convention. 20. In its submissions in reply the Vienna Federal Police Authority contested these allegations. It stated that during his hunger strike the applicant had regularly been weighed and his blood-sugar level had been checked. Because of conflicts with former inmates the applicant had already been transferred from another cell. The applicant had several times pretended to faint and had requested an inmate, Mr Stojanovic, to call the prison officers. On the day in question the applicant had banged continuously against the cell door, had rung the bell and had disregarded the ensuing admonitions of the prison officers. In the evening he had gone to the lavatory situated in the cell, had fallen down and had suffered a slightly bleeding injury on his head. The applicant's inmates had subsequently dragged the applicant away from the toilet. The prison's paramedical officer, Mr Zechmeister, established that the applicant was only pretending to be unconscious and such behaviour continued once the applicant was taken outside the cell. An officer, Mr Freithofer, then ordered that the applicant be placed in solitary confinement. Two other officers, Mr Mayerhuber and Mr Reichel, were present. None of them had mistreated the applicant. While Mr Zechmeister fetched bandage material, Mr Freithofer and Mr Mayerhuber carefully dragged the applicant down to the ground floor. The applicant was holding his head up while being carried, and was therefore only pretending to be unconscious. As he could not be made to walk on his own, inevitably his feet, and partly also his backside, dragged along the floor. After the applicant's head injury had been cleaned and bandaged, he walked on his own to the individual cell situated on the first floor. This cell had a window. At that time the applicant did not allege that he had sustained any further injuries. As with every prisoner on hunger strike, the applicant's state of health was examined daily by the prison's paramedical officer. On 24 May 1994 the applicant showed the paramedic for the first time the abrasions on his back, which were subsequently treated by the prison doctor. 21. On 26 July 1994 and on 16 January 1995 the Independent Administrative Panel held two oral hearings at which it heard evidence from the applicant, two prison inmates, Mr Fadil and Mr Stojanovic, and two of the officers concerned, Mr Zechmeister and Mr Mayerhuber. 22. In addition to the allegations he had made in his complaint, the applicant submitted that after the incident he had noticed traces of blood behind his ears. The individual cell had had a window but no daylight had come through. There were only dirty bedclothes. There had also been a toilet which did not flush. He had suffered from severe pain in his back and on his head and had requested to see a doctor but his requests had been met only with insulting remarks. Only after three days had the paramedical officer come to his cell again. He had shown him the injuries on his back and subsequently, after Mr Staub had visited him, had been taken to a doctor. As well as the injuries on his back because of the way in which he had been carried, he had suffered injuries to his ribs as a result of being kicked by the police officers. Afterwards the doctor had visited the cell and the applicant had obtained a cushion and clean bedclothes. 23. The representative of the police authority submitted that according to the applicant's submissions in criminal proceedings which he had brought against the four police officers concerned and which were later discontinued, he had seen the prison's doctor on 24 May 1994 before Mr Staub's visit. 24. Mr Fadil alleged that he remembered being in the same cell as the applicant in May 1994. The applicant, however, did not remember Mr Fadil. Mr Fadil submitted that the applicant had already lost consciousness several times. After his accident, the prison officers had grasped the applicant under his arms and neck and had pulled him out of the cell so that his back dragged along the floor. The cell door had then been closed but he had heard the applicant being beaten and crying. He had also learnt from other prisoners that the applicant had been injured while being dragged down the steps. Another prisoner who had meanwhile been deported had allegedly witnessed this incident and had also noticed traces of blood on the floor. 25. Mr Stojanovic, who was undisputedly a cellmate of the applicant at the time of the events, confirmed that the applicant had already lost consciousness several times before the incident in question. They had then called a doctor, who had come and measured the applicant's blood pressure. On the evening in question the officers had pulled the applicant by his feet out of the bed and then, grasping the applicant's neck, out of the cell while his back dragged along the floor. During this time the officers had punched the applicant two or three times on his chest. Then the door had been closed, and he had heard cries and something which sounded like beating. He had never noticed any injuries on the applicant's back. Some three or four days after the incident and again one week later he had met the applicant, who had shown him blue marks on his back and on his leg. The applicant also told him that he had been beaten. Mr Stojanovic had also been interviewed by police officers in the course of the criminal proceedings concerning the case. According to the transcripts of the interview, he had stated on that occasion that the applicant had several times falsely claimed to be feeling weak and had requested him to call the prison officers. After his accident the applicant had been moved by his cellmates from the toilet to his bed and his back had been dragged along the floor. The prison officers who had subsequently carried the applicant out of the cell had not mistreated him. When confronted with these statements at the hearing before the Independent Administrative Panel, Mr Stojanovic submitted that they were not true and had apparently been wrongly recorded because of his poor knowledge of the German language and misunderstandings with the interviewing police officers. 26. Mr Zechmeister submitted that he had been on duty as a paramedical officer on the day at issue and had been called several times to the applicant's cell as the applicant had pretended to faint. When called again to the applicant's cell in the evening, his impression that the applicant was again pretending was confirmed by an examination of the applicant's reactions. He had then left in order to fetch dressing material for the applicant's head injury and requested the police officer in charge to place the applicant in solitary confinement as a disciplinary measure and in order to keep the peace with the other inmates. He had seen the applicant again in the solitary confinement wing, where he had cleaned and bandaged the injury to his head. He had not noticed any further injuries and the applicant had not mentioned any. The applicant was subsequently taken to an individual cell on the first floor. At that time, he was able to walk on his own. The applicant had never told him that he had been beaten. 27. Replying to questions by the applicant's counsel, Mr Zechmeister stated that in addition to hourly checks by police officers, the paramedic checked the cells between 6 and 9 p.m. He looked through the small window in the door without opening the door. Cells were equipped with an interphone allowing inmates to contact staff at any time. In reply to the question whether there was specific surveillance for inmates who risked losing consciousness while in solitary confinement, Mr Zechmeister replied that in his view the applicant did not present such a risk at the material time. Nor did he consider that the applicant required permanent surveillance. Inmates requiring permanent surveillance were placed in the other Vienna Police Prison at Roßauer Lände. If they were unfit for detention, they were released. Mr Zechmeister could not remember when the applicant had first been examined by the prison doctor after the incident at issue. Hunger-strikers were examined by the prison doctor either daily or every second or third day, depending on their state of health (for example, where weight loss or blood pressure gave rise to concern). 28. Mr Mayerhuber submitted that when he had arrived on the evening in question, the applicant was already lying in front of his cell. At that time two other police officers and Mr Zechmeister, examining the applicant, had been present. Mr Stojanovic had told him that the applicant had cut himself on purpose with a razor blade in order to feign a collapse. Mr Mayerhuber and another police officer had taken the applicant to the solitary confinement wing by linking their arms with the applicant's. The applicant's face had been facing away from the direction in which he was being moved. While the upper part of the applicant's body had been straight, his backside had partly dragged along the floor and his feet had constantly done so. The applicant had not been carried as there had been a risk that he might fall down if he bristled or reacted in a clumsy way. He did not know whether the applicant had been wearing shoes at that time. The applicant had been motionless but he had not been able to tell whether the applicant was unconscious or not. 29. On 31 March 1995 the Independent Administrative Panel dismissed the applicant's complaint, noting that his transfer to an individual cell on 22 May 1994 had constituted a disciplinary measure. The applicant should therefore have brought proceedings under the Police Prison Internal Rules ( Polizeigefangenenhaus- Hausordnung ) and there was no scope for a complaint to the Independent Administrative Panel. 30. On 12 March 1997 the Constitutional Court ( Verfassungs - gerichtshof ) quashed that decision, on the ground that the Independent Administrative Panel had wrongly refused to rule on the merits of the applicant's complaint, and remitted the case to it. 2. Second set of proceedings before the Independent Administrative Panel 31. On 3 February and 18 June 1999 the Independent Administrative Panel held further hearings. 32. The representative of the police authority submitted that the injuries found on the applicant's back had been caused by his fellow inmates, who had dragged him away from the toilet. The applicant submitted that he had been dragged out of his cell by the prison officers and had thereby suffered injuries to his back. The Independent Administrative Panel also heard evidence from Mr Staub, Mrs Pichler and Mr Horvath. 33. Mr Staub submitted that when he had visited the applicant, he had noticed two skin abrasions the size of the palm of a hand to the right and left along the applicant's backbone. While these injuries had apparently been treated in a professional manner, he had considered the bandage on the applicant's head to be an “impertinence”. He had thereupon called the paramedical officer, who had apparently changed the bandages afterwards. He had further noticed skin abrasions on the applicant's heels and injuries behind his ears. The applicant had conveyed the impression to him that the conditions in the individual cell were very questionable and even catastrophic and that, despite his request, he had not been allowed to see a doctor. 34. Mrs Pichler submitted that she had noticed skin abrasions and blue marks on the applicant's back and injuries behind his ears. The applicant had told her that the latter injuries had been caused by stabbing with ballpoint pens. 35. Mr Horvath submitted that he had noticed skin abrasions on the applicant's back, on which scabs had formed. He had also noticed injuries behind the applicant's ears and had remarked that that area was swollen. The applicant had told him that he had been stabbed with a pencil. 36. Following a request by the applicant, the Independent Administrative Panel ordered an expert medical opinion. The opinion referred to the applicant's allegation that he was suffering from earaches and decreased auditory function and noted it was unlikely that the applicant's eardrum had been injured during his detention as this would have caused bleeding. However, such bleeding had neither been documented nor established, nor had the applicant himself alleged that it had occurred. Until February 1998 the applicant had not undergone any otolaryngology treatment and now, four years later, it was impossible to establish whether the applicant's ear problems and decreased auditory function in February and March 1998 were a consequence of his detention in 1994. As regards the applicant's allegation that he had suffered from purulent effluence from the right ear after his release, the expert opinion noted that this could have been the consequence of an inflammation of the middle ear. 37. The Independent Administrative Panel eventually carried out an inspection of Vienna East Police Prison and took photos, which it submitted to the applicant for comment. 38. On 16 June 1999 the applicant requested that the Independent Administrative Panel carry out another inspection in his presence. 39. In written submissions dated 21 July 1999 the applicant disputed that the cells shown on the photos corresponded to the individual cell to which he had been taken. In the solitary cell in which he had been detained there had only been a wooden pallet without a mattress and bedclothes. A spout had served as a toilet. The only window had been nearly on the same level as the ground of the courtyard which it faced and only a little daylight had come through. There were no radiators. He had repeatedly unsuccessfully tried to contact police officers through the interphone. He repeated his request for another inspection to be carried out in his presence. The request was not granted. 40. On 3 September 1999 the Independent Administrative Panel dismissed the applicant's complaint. It established the facts as follows: “As a result of his hunger strike, the applicant lost eleven kilograms within a very short time and was further behaving in an uncooperative, refractory manner and did not miss an opportunity to attract attention, which – from the applicant's point of view – is probably legitimate and comprehensible but also resulted in his not being treated in the most attentive and gentle way. The applicant had repeatedly shouted and disturbed the peace in his cell, which he shared with several other inmates. On 21 May 1994 the applicant's cellmates informed the police officers on guard in the prison that he had fallen from the toilet and had suffered an injury to his head. Since the police officers wanted to restore order in the cell shared by several inmates, the applicant was carried out from the cell and transferred to the individual cell situated in a separate part of the building – one floor below. Since he was carried – in particular because he made no voluntary effort to walk on his own – it happened that while being taken down the steps, his back dragged along the edges of the steps and in the process he suffered superficial skin irritations. After being moved to individual cell no. E 184 and examined by a paramedic of the Police Prison, his slightly bleeding wound was cleaned and bandaged. After the applicant had informed the paramedic on 24 May 1994 that he also had an abrasion on his back, the latter notified the prison doctor, who treated the wound with a spray and bandage. The applicant subsequently remained in detention awaiting his expulsion until 28 May 1994, 12 noon, staying in cell E 184, and at the above time he was released because he was unfit for further detention. Evidence was taken through an inspection of the file of the Vienna Federal Police Authority, the file of the Vienna Regional Criminal Court, the Josefstadt District Court and the file of the proceedings conducted by the Vienna Independent Administrative Panel. In addition, the established facts were based on the transcripts of the oral hearing in the first round of proceedings, Zl. 02/31/57/94, which contain the statements of the police officers examined at that time. Moreover, the Independent Administrative Panel conducted a supplementary oral hearing during which the transcripts of the first round of proceedings were read out and the witnesses Horvath, Mag. Staub and Pichler were examined. Finally, the Panel taking this decision obtained a medical opinion from an ear, nose and throat specialist and indirectly carried out an inspection of the site to determine the local situation at the relevant time. The witnesses examined both in the first round of proceedings and in the continued proceedings were highly credible. The witnesses in the continued proceedings were, however, unable to comment on the factual situation, in particular the cause of the injuries, firstly because they had only noticed the applicant's injuries some time after they had been inflicted on him and were thus unable to comment first hand on the cause of these injuries. Secondly, the injuries were not such as to clearly indicate their origin, and on account of their lack of expert knowledge, the witnesses were not able to comment on the cause of these injuries. Lastly, it is doubtful to what extent statements by witnesses which are intended to reflect a direct perception can – after a period of almost four years – still be so unhampered and uninfluenced as to meet the requirements of fair proceedings. The same must naturally hold true for the police officers, and it was not least for that reason that these officers were not examined afresh and the present decision is based on their examination in the course of the oral hearing in the first round of proceedings. The statements by the police officers were conclusive and in accord with one another; moreover, the statements made during the oral hearing in the first round of proceedings and the statements made during their questioning in the course of the preliminary investigations were consistent, without any serious contradictions relevant to the decision being discernible. Moreover, the statements of the police officers were in line with the contents of the first-instance administrative file, and on that account it could also be assumed that during his detention pending expulsion the applicant behaved in an extremely refractory manner, and the conduct of the police officers was thus the only suitable way to bring about a solution to these problems. The applicant appeared extremely calm – not to say serene – to the Vienna Independent Administrative Panel, which is why from the present perspective, the idea that the applicant behaved as described in the facts seemed realistic only with a great deal of imagination. The Vienna Independent Administrative Panel must, however, also take into account the fact that at that time – unlike today – the applicant was in an exceptional state of mind, and such conduct must therefore be regarded as absolutely possible. Finally, the authority determining the case also proceeds from the assumption that the applicant had been in a kind of emergency situation at the time, and his'civil disobedience'was the only possible way for him to successfully avoid expulsion. The expert medical opinion and the inspection of the site could not support the applicant's submission that he had to await his expulsion in a cell without light in inhuman conditions. The cell referred to by the applicant is situated at least as high as half a floor above the elevated cell level so that there is no access to the cells through the open windows from outside. The statements made by the applicant about the route on which he had been carried from the cell shared with other inmates to the individual cell differed from the maps depicting the relevant section of the Police Prison that are included in the file. It is thus also to be assumed that the applicant's emotional state in his surroundings in the Police Prison was so tense at the relevant time that it may well be that the circumstances as the applicant perceived them should be evaluated differently from his statements in his written submissions. There is no indication that the statements by the head of Vienna Police Prison are untrue. Although he was not yet in his present position in the prison at the time, the head of Vienna Police Prison stated that as far as he knew and according to information from his colleagues, the prison had not been redesigned or renovated during the past few years. Finally, basing itself on the expert medical opinion obtained, the Vienna Independent Administrative Panel found that the applicant had not been injured with a ballpoint pen at that time as he maintained. An injury would almost invariably have resulted in blood coming out from the wound, and the official expert in his opinion also arrived at the conclusion that such an injury did not occur.” 41. The Independent Administrative Panel's legal assessment reads as follows: “Since the applicant – as can be deduced from the established facts set out above – is himself responsible for his injuries, and either inflicted those injuries on himself through his own conduct or sustained them as a result of his conduct – such as, for example, circulatory insufficiency while he was on the toilet, resulting from his hunger strike – no conduct contrary to Article 3 of the Convention could be observed. On account of both his refractory behaviour in his shared cell, causing unrest among the other inmates, and his passive resistance while being taken to the individual cell, the police officers carried the applicant down the staircase because of his circulatory insufficiency, and the intervening officers had no other possible way of taking him to the individual cell. The applicant also described the situation and circumstances in the individual cell in such a manner that one cannot follow his submissions from the present perspective. The cell at issue has always been situated some five metres above the ground level of the courtyard, and in any event sufficient light comes into the cell. Moreover, the cell has a sufficiently large window, which thus also guarantees the inflow of natural light. Nor is it understandable why the applicant believes that he was taken to a cell in the cellar and was detained in virtual darkness. At no time was there any indication to that effect in the investigation proceedings. If the applicant also submits that he was denied medical treatment, it must be said on the contrary that he regularly received medical treatment both during his hunger strike and during his detention in the individual cell, which means that he was repeatedly taken to a doctor and his state of health was under constant supervision by a qualified paramedic, who would at any time have been in a position to arrange for the intervention of a doctor. Finally, in his submissions as a whole, the applicant gave an explanation of the entire sequence of events which was not very consistent or easy for the authority deciding his case to understand; it cannot be assumed that the applicant intentionally made untrue statements to the panel deciding his case, thus intending to obtain an unjustified advantage. It must rather be assumed that – as already outlined above – the applicant was in a state of mind lacking full mental orientation and thus actually perceived the situation faced by him in such a manner. Since no further violations of the law emanated from the proceedings conducted by the authority, the complaint had to be rejected as being unfounded on all counts ...” 42. On 27 February 2001 the Constitutional Court declined to deal with the applicant's complaint. Subsequently, on 28 May 2001 the applicant supplemented his complaint with the Administrative Court ( Verwaltungsgerichtshof ). 43. On 19 December 2003 the Administrative Court declined to deal with the applicant's complaint. That decision was served on the applicant's counsel on 19 January 2004. III. REPORT OF THE EUROPEAN COMMITTEE FOR THE PREVENTION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT (CPT) 46. The relevant extracts of the CPT's report on a visit to Austria from 26 September to 7 October 1994 read as follows (unofficial translation from French): “5. Police prisons a. follow-up visit to the Vienna Police Prison 56. As already indicated (see paragraph 3), the CPT's delegation carried out a follow-up visit to the Vienna Police Prison at Roßauer Lände. Since the end of 1990, there have been two police prisons in Vienna, with a total capacity of 450 places. At the time of the CPT's second visit, the Police Prison at Roßauer Lände had a capacity of 220 and, on the day of the visit, 211 prisoners were being held there. The majority of them – 154 – were persons detained under the aliens legislation pending deportation ( Schubhäftlinge ). The rest were either being held at the disposal of the Security Bureau, serving an administrative sanction or awaiting transfer. During the talks held at the end of the visit, the CPT delegation expressed its concern to the Austrian authorities about its findings in the police prison. Indeed, four years after the first visit, it found very few improvements in the conditions of detention. 57. The single and multi-occupancy cells in the prison were still in a dilapidated state and the conditions of hygiene were deplorable. In particular, most of the cells'equipment (beds, mattresses, sheets and blankets) was dirty and shabby; further, in the multi-occupancy cells, the state of the toilets and their partitioning remained very poor. ... c. medical care in the police prisons visited 80. The number of general practitioners assigned to the police prisons visited can be considered adequate, given the respective capacity of those establishments. Moreover, appointments with outside specialists could be arranged where necessary. 81. The situation regarding nursing staff levels in some of the prisons visited was less satisfactory. At the Vienna Police Prison, health care was provided by a team of ten paramedical officers ( Sanitäter ), who were in charge of both this establishment and of the other police prison in Vienna (see paragraph 56). They had received six weeks'basic training in the Army, followed by a period of practical training in a hospital. This training programme had begun a year earlier and it was envisaged that, in future, health care staff would follow a recognised training programme for nurses ( Krankenpfleger ). There was always a paramedic on duty on the establishment's premises. ... 85. The delegation was also concerned by the absence of any psychological support for inmates in the Vienna Police Prison. In one of the establishment's single cells, the delegation saw an Asian woman who was patently in a state of extreme psychological distress, exacerbated by the language barrier, and for whom the necessary psychological support was not forthcoming. According to staff, the inmate in question had resisted while being escorted for deportation and had displayed violent behaviour when placed in a multi-occupancy cell. Another inmate, on hunger strike, was observed to be in a similar state, but was not receiving the necessary psychological support either. Moreover, this inmate had started a thirst strike; he had evidently not been informed of the potential consequences of such conduct for his health. 86. It is plain from the CPT delegation's observations that the medical care provided in the police prisons visited amounted to nothing more than a somewhat developed form of first aid. This finding is all the more serious given that periods of custody in these police establishments may last for up to six months. The CPT considers that these establishments – particularly the larger ones, such as the Vienna Police Prison – should offer a level of medical care comparable to that which can be expected in a remand prison. In this connection, the CPT has noted with interest the proposal to create a health care unit at the Vienna Police Prison. 87. Consequently, the CPT recommends that the Austrian authorities review the provision of medical care in the light of the foregoing remarks. More particularly, it recommends that immediate steps be taken to ensure that: ... The CPT would also like to receive detailed information from the Austrian authorities on the approach adopted in police prisons as regards the treatment of persons on hunger or thirst strike, and further information on the planned creation of a health - care unit at the Vienna Police Prison. d. other issues i. persons detained under the aliens legislation 90. As already mentioned (see in particular paragraphs 56, 65, 71 and 74), persons deprived of their liberty under the aliens legislation (FrG) represent the largest group of persons held in the police prisons visited. It should be stressed that the detention of such persons gives rise to specific problems. Firstly, there will inevitably be communication difficulties caused by language barriers. Secondly, many foreign nationals will find it hard to accept being in custody when they are not suspected of any criminal offence. Thirdly, tensions may arise between detainees of different nationalities or ethnic groups. Staff assigned to supervise such persons must therefore be very carefully selected and receive appropriate training. Supervisory staff should possess heightened interpersonal communication skills; they should also be familiar with the detainees'different cultures and at least some of them should have appropriate language skills. Further, staff should be taught to recognise possible symptoms of stress displayed by detainees (whether post-traumatic or induced by sociocultural changes) and to take appropriate action. 91. It is clear from the delegation's observations during the second visit that – despite commendable efforts by certain officers in the establishments visited – the staff of police prisons had not been trained to perform this particularly onerous task. The CPT therefore recommends that the Austrian authorities review the training of police officers responsible for the custody of foreign nationals in the light of the above remarks. The CPT would also like to receive the comments of the Austrian authorities on the possibility of creating special centres for this category of persons, in which they could enjoy material conditions and a detention regime appropriate to their legal status. ” | The applicant, a national of the former Socialist Federal Republic of Yugoslavia at the time of the events, alleged that, when held in custody in Vienna Police Prison with a view to his expulsion for illegal residence, prison officers had ill-treated him. Placed in solitary confinement immediately afterwards, he further complained about being refused access to a doctor. |
900 | Persons arrested or under criminal prosecution | I. THE CIRCUMSTANCES OF THE CASE 4. The applicants are brothers. Mr Amir and Damir Khuzhin were twins born in 1975 and Mr Marat Khuzhin was born in 1970. They all live in the town of Glazov in the Udmurtiya Republic of the Russian Federation. On 19 June 2006 Mr Damir Khuzhin died in an accident. A. Arrest of the applicants 5. On 14 April 1999 the first and second applicants were arrested on suspicion of kidnapping committed in concert. The case was assigned to Mr Kurbatov, a senior investigator in the prosecutor ’ s office of the Udmurtiya Republic. 6. On 12 May 1999 the investigator Mr Kurbatov questioned the third applicant as a witness. On the same day he was placed in custody. On 14 May 1999 the investigator issued a formal decision to arrest the third applicant on suspicion on aiding and abetting kidnapping. 7. On 17 and 26 May 1999 the first applicant was allowed to see his fiancée, Ms Maksimova. It would appear that on the latter date they contracted a marriage because from 9 June 1999 she began visiting him as his wife and changed her name to Mrs Khuzhina. In the subsequent period she visited the first applicant on a regular basis once or twice a month. 8. On 2 June 1999 the three applicants were charged with kidnapping and torture, offences under Articles 117 and 126 of the Criminal Code. They were accused of having abducted a certain Mr V., a homeless tramp, and forced him to perform physical labour in a fruit warehouse owned by them in exchange for extremely low pay. On several occasions V. had run away but the brothers had caught him, beaten him and tortured him by applying electric wires to various parts of his body. 9. On 7 June 1999 the first applicant and his counsel requested the investigator to arrange for a confrontation with V. and a certain witness U. On the following day the investigator refused their request, noting that the confrontation was “undesirable as both V. and U. had previously been financially dependent on the Khuzhin brothers and during a confrontation Amir Khuzhin could exert a negative influence on them”. 10. The third applicant and his counsel requested the investigator to interview witnesses G., L., and A., who could allegedly testify that V. had been able to move around freely and that the Khuzhin brothers had treated him well. On 18 June 1999 the investigator dismissed the request as unsubstantiated. He noted that V. ’ s liberty of movement had indeed been unrestricted in the beginning and the Khuzhin brothers had restrained him “only at a later stage” and that there were “a sufficient number of depositions by witnesses and the victim to the effect that the Khuzhin brothers had treated V. very badly and humiliated him”. 11. It appears that on an unspecified date the police entered and inspected a warehouse belonging to the applicants. B. Press coverage of the case 1. Television broadcast 12. On 20 July 1999 the State television channel Udmurtiya broadcast the Versiya ( “ Version ” ) programme. The second part of the programme concerned the applicants ’ case. The participants included the presenter Ms Temeyeva, the Glazov town prosecutor Mr Zinterekov, the investigator Mr Kurbatov, and Mr Nikitin, who was head of the division for particularly important cases in the office of the prosecutor of the Udmurtiya Republic, as well as the victim V., whose face was not shown. 13. Mr Zinterekov opened the programme with the following statement: “The Khuzhin brothers are, by their nature, cruel, insolent and greedy; they wished to get cheap or, more precisely, free labour. On the other hand, the victim V., a person with no fixed abode, mild and gentle...” 14. The presenter started telling the story of V. ’ s enslavement. As she was speaking, black-and-white passport-size photos of the applicants were shown full screen. 15. The presenter ’ s story alternated with that of the victim V., who related how he had been ill-treated by the Khuzhins and had unsuccessfully attempted to escape. The presenter asked the participants whether the Khuzhin brothers could be described as sadistic. 16. Mr Zinterekov replied as follows : “We, that is, prosecutors and the police, have known these brothers from the time when they were still minors... We investigated the acts committed by the brothers but they could not be held criminally liable by virtue of their young age. After they reached the age [of majority], they found themselves in the dock. All three brothers were convicted of disorderly acts. In my opinion, that offence is very much characteristic of all the Khuzhin brothers in its cruelty and meaningless brutality. I think that the personal qualities of the Khuzhin brothers and [their] desire to have free labour have led to this crime.” 17. The participants subsequently discussed why the victim had not come to the police immediately after the beatings had begun, and commented on legal aspects of the pending proceedings: “ [Mr Kurbatov : ] You know when [V.] came to the law-enforcement authorities in April 1999, our investigative group in the Glazov town prosecutor ’ s office was shocked at the cruelty of this crime. When a person comes for protection to the law-enforcement authorities, you should examine him closely, listen carefully to his story. [V.] had more than 187 injuries on him. The Convention [for the Prevention] of Torture naturally comes to mind. [Presenter:] The Khuzhin brothers are now charged under two provisions of the Criminal Code: Article 126 – kidnapping committed for lucrative motives, and Article 117 – torture.” As she was speaking, the first page of the criminal case file was shown on screen. 18. The other participants offered the following comments: [Mr Zinterekov:] The prosecutor ’ s office will insist on imprisonment as a measure of punishment in respect of all three brothers... For instance, Article 126 § 2 provides for five to ten years ’ imprisonment, Article 117 provides for three to seven years ’ imprisonment. The court will have to choose... [Mr Nikitin:] A brazen crime. If anyone knows about similar facts, report them to the police and the criminals will be punished... [Presenter:] ... In September the Glazov Town Court begins its examination of the criminal case. Three businessman brothers who got a false idea of being slave-owners will get a well-deserved punishment.” 19. The programme was broadcast again in August 1999 and on 15 May and 25 October 2001. 2. Newspaper publication 20. On 7 August 1999 the journalist Ms M. published an article under the headline “The Land of Slaves” ( «Страна рабов» ) in the local newspaper Kalina Krasnaya. It began as follows : “I am firmly convinced that the following story is just one fact that emerged from the dim waters of market relations. And ethnic relations as well. Though I wish I were impartial as regards these ethnic relations – each people has its enlightened scholars and cruel murderers.” 21. The journalist related the story of V., who had been exploited and beaten by the Khuzhin brothers. The article mentioned that the elder brother ’ s first name was Marat, that the two other brothers were twins aged 24 and that they traded in fruit at a local market. The applicants ’ last names were not listed. A former classmate of V. who had given him refuge was quoted as citing a statement by V. himself, to the effect that “these Tatars have everything fixed up”. The final paragraph read as follows: “Many, many questions crossed my mind as I was reading the criminal case file. Why is the life of a dirty piglet more valuable than a human life? Why are masses of Russians, Udmurts and others among the unemployed, while ‘ they ’ not only find work for themselves but also use hired labour! And why does everyone in the town know about the doings of that best friend of all tramps and put up with it? . .. ” 3. Complaints about press coverage 22. The applicants lodged several complaints about the press coverage of proceedings against them. 23. In a letter of 23 March 2000 Mr Nikitin replied that the programme had been produced on the basis of information supplied by the division for particularly important cases in the office of the prosecutor of the Udmurtiya Republic. Pursuant to Article 139 of the RSFSR Code of Criminal Procedure, the prosecutor ’ s office had had the right to disclose materials in the case file and make them available to the journalist. 24. In a letter of 3 May 2000 a deputy prosecutor of the Udmurtiya Republic replied that there were no grounds to hold officials of the Glazov prosecutor ’ s office criminally liable for disclosure of materials from the investigation. 25. On 25 August 2000 Mr Zinterekov wrote that there were no grounds for liability to be incurred either by officials of the prosecutor ’ s office or by journalists who had provided coverage of the proceedings. 26. On 18 December 2000 a deputy prosecutor of the Udmurtiya Republic replied to the third applicant that Mr Zinterekov could not be held criminally liable for his statements. 27. In a letter of 12 March 2001 a deputy prosecutor of the Udmurtiya Republic confirmed that the disclosure of the case file to the mass media had been in compliance with Article 139 of the Code of Criminal Procedure. He further noted that the Glazov town prosecutor (Mr Zinterekov) had been told to use “a more balanced approach in determining the scope of information that could be made public in criminal cases before the conviction has become final”. 28. In similarly worded letters of 25 July and 15 August 2001, deputy prosecutors of the Udmurtiya Republic informed the first and third applicants that there were no grounds to initiate a criminal case against the maker of the television programme and that no further replies concerning that matter would be given. The Glazov town prosecutor was, however, instructed to check whether a criminal investigation should be opened in connection with the article in the Kalina Krasnaya newspaper. 29. On 27 September 2001 an investigator from the Glazov prosecutor ’ s office issued a formal decision not to initiate a criminal case for libel against the journalist M., who had authored the article “The Land of Slaves”. It appears from the decision that, in M. ’ s own words, she had received formal permission from the investigator Mr Kurbatov to consult the case file and that Mr Kurbatov had approved a draft of the article. Mr Kurbatov, however, denied any memory of granting access to the file to M. and claimed he had never read the article in question. He did not deny, though, that he had briefed the presenter of the television programme on details of the criminal case. Referring to the applicants ’ conviction by the judgment of 2 March 2001 (see below), the investigator found that the contents of the article had been essentially true and that M. had not disseminated any false information damaging the third applicant ’ s dignity or honour. C. The applicants ’ trial 30. On 31 July 2000 the Glazov Town Court held a directions hearing and scheduled the opening of the trial for 10 August 2000. 31. The trial continued in late 2000 and early 2001. Witnesses for the prosecution and defence, as well as the victim Mr V., testified in court. 32. On 2 March 2001 the Glazov Town Court found the applicants guilty of kidnapping and torture under Article 126 § 2 and Article 117 § 2 of the Russian Criminal Code. The third applicant was sentenced to five years and one month ’ s imprisonment, whilst the first and second applicants were to serve seven years in a high-security colony. 33. The applicants appealed against the conviction. Their points of appeal concerned, in particular, the alleged prejudice to their presumption of innocence which had resulted from the newspaper publication and television programme described above. The prosecution also lodged an appeal. The case file was sent to the Supreme Court of the Udmurtiya Republic for consideration on appeal. 34. On 29 October 2001 the acting president of the Criminal Division of the Supreme Court of the Udmurtiya Republic returned the case file to the Town Court because the trial judge had failed to consider the applicants ’ comments on the trial record, to locate the allegedly missing documents and to provide the applicants with a copy of the prosecution ’ s points of appeal. 35. In an interim decision of 1 November 2001 the Glazov Town Court partly accepted and partly rejected the applicants ’ corrections of the trial record. 36. On 18 December 2001 the Supreme Court of the Udmurtiya Republic heard the case on appeal and upheld the judgment of 2 March 2001. The court did not address the applicants ’ arguments concerning an alleged impairment of their presumption of innocence. D. Conditions of the applicants ’ transport 37. Following their conviction, the applicants remained in detention facility no. IZ-18/2 for unspecified reasons. 38. On 21 October 2002 the facility administration distributed winter clothing to the prisoners. The applicants refused to take it. On 13 November 2002 the third applicant accepted a padded jacket and the second applicant winter shoes. 39. On 26 December 2002 the applicants were listed for transport from detention facility no. IZ-18/2 to correctional colonies. According to them, the outside temperature on that day was -36 o C; the Government submitted a certificate from the meteorological service showing that the temperature fell to -29.8 o C in the night. 40. At about 5 p.m., when the applicants were taken to the assembly cell of the detention facility together with ten to twelve other detainees, they were wearing T-shirts and tracksuit bottoms. The wardens offered them winter jackets and hats which, according to the Government, hailed from the humanitarian-aid supplies but had been washed and were neat. The applicants claimed that the items were “torn and old” and refused to take them. 41. At 10 p.m. the applicants, together with other prisoners, were put into a prison van and taken to Glazov railway station to board the Kirov-Kazan train that arrived at 10.10 p.m. The distance between the facility and the station was 800 metres and the journey time was less than five minutes. At 10.05 p.m. the van arrived at the station and the applicants emerged from it without winter clothing. A prison inspector dashed into the van, collected the winter clothing which the applicants had left behind, and gave it to the escorting officer. The officer again offered the clothing to the applicants to put on but they refused to do so, claiming that it was unfit to wear. According to the statements by the inspector and the officer, the clothing was in an “appropriate condition”. 42. It appears that the argument went on for about 10 to 15 minutes. The head of the train escort refused to take the applicants in without appropriate clothing and the facility personnel decided to take them back into the cells. 43. In support of their claim that the clothing had been “ inappropriate ”, the applicants produced to the Court a written statement signed by five other detainees who had been held in facility no. IZ-18/2 at that time. 44. On 27 and 29 December 2002, 7 January and 11 April 2003 and other dates the applicants complained that they had been subjected to inhuman and degrading treatment on 26 December 2002. 45. On 28 February 2003 Mr Zinterekov responded to them in the following terms: “It has been established that winter clothing was given to you and that you remained outside in clothing inappropriate for that season only because you refused to put it on. Your arguments that the clothing offered did not meet sanitary and hygiene standards could not have been objectively confirmed; there are no grounds for disciplining any officials.” E. Impounding of the third applicant ’ s van 46. On 12 May 1999 the third applicant arrived in his van at the Glazov police station for questioning. On that day he was taken into custody (see above). 47. On 13 May 1999 the investigator Mr Kurbatov impounded the van and ordered that it should be kept in the car park of a private company. The charging order itself did not indicate the grounds on which it had been issued, but referred back to the investigator ’ s decision of the same date, a copy of which was not made available to the Court. 48. The third applicant repeatedly complained to various authorities that his van had been unlawfully seized. He alleged that the investigator was using it for his private errands. 49. In a letter of 14 April 2000 the acting Glazov prosecutor reported to the third applicant the findings of an internal inquiry into his complaints. He found as follows: “On 12 May 1999 Mr Kurbatov arrested you ... However, the Gazel car, in which you had arrived, remained in the street outside the premises of the Glazov police station, and measures for its safe keeping were not taken. The car remained there until 13 May 1999, when Mr Kurbatov impounded it ... However, he did not examine the state of the car, nor did he show it to you or any attesting witnesses ... The impounded car was taken by a road police employee from Glazov police station, acting on Mr Kurbatov ’ s orders, into the premises of the [private company]. The car was not properly sealed ... It must be noted at the same time that there existed no legal grounds for impounding the vehicle, as required by Article 175 § 1 of the RSFSR Code of Criminal Procedure. According to that provision, a charging order could be issued with a view to securing a civil claim or a possible confiscation order. However, in this case no civil claim was brought throughout the proceedings and the criminal-law provisions under which [ the third applicant ] was charged do not provide for confiscation measures as a penal sanction. Thus, Mr Kurbatov breached Articles 141, 142, 175 and 176 of the RSFSR Code of Criminal Procedure – which set out the requirements for the record of impounding and the procedure for issuing charging orders – and also the Instruction on the procedure for seizing, accounting, storing and transferring physical evidence in criminal cases, values and other assets by law-enforcement authorities and courts. Further to the internal inquiry, the prosecutor of the Udmurtiya Republic was advised to determine whether Mr Kurbatov should be disciplined.” 50. On 13 June 2000 the investigator Mr Kurbatov handed the keys and registration documents of the van to the Glazov Town Court. 51. In letters of 19 July and 18 December 2000 the Udmurtiya Republic prosecutor ’ s office informed the third applicant that Mr Kurbatov had been disciplined for breaches of the Instruction on the procedure for storing physical evidence and fined in the amount of his bonus salary for the first quarter of 2000. 52. It appears that on 4 June 2002 the Glazov Town Court lifted the charging order and the third applicant ’ s van was returned to Mrs Khuzhina (his brother ’ s wife). F. Civil proceedings against the investigator and journalists 1. Civil action against the investigator and the journalist Ms M. 53. On an unspecified date the third applicant sued the investigator Mr Kurbatov for damages on account of his failure to ensure the safe keeping of his van; all three applicants also brought a defamation action against the journalist Ms M., seeking compensation in respect of non-pecuniary damage. The Glazov Town Court ordered the joinder of both actions and listed a hearing for 3 March 2003. 54. In February 2003 the applicants asked the court for leave to appear. Mrs Khuzhina, as a representative of the first applicant, asked the court to ensure the attendance of the applicants at the hearing. 55. On 3 March 2003 the Town Court issued several procedural decisions. In the first decision, it rejected Mrs Khuzhina ’ s request for the applicants ’ attendance, holding that the Penitentiary Code did not provide for the possibility of bringing convicted persons from a correctional colony to the local investigative unit for the purpose of taking part in a hearing in a civil case. The second decision took stock of the absence of both parties – the journalist Ms M. and a representative of the newspaper had not shown up despite having been notified of the hearing – and indicated that the case would be heard in their absence. It appears that Mrs Khuzhina then walked out of the courtroom in protest against the court ’ s decision to hear the case in the absence of the first applicant. In a third decision, the court decided to proceed with the case in her absence. It additionally rejected the applicants ’ request for leave to appear on the same grounds as above, adding: “ ... parties to the case do not just have rights but also have duties, such as [a duty] to make written submissions and substantiate their claims. Taking into account the fact that the rights of Mr A. Khuzhin, Mr D. Khuzhin and Mr M. Khuzhin are not restricted and can be exercised by them in full measure, there are no legal grounds to ensure the attendance of individuals who have committed particularly serious, insolent [ дерзкие ] crimes.” Lastly, the Town Court rejected the applicants ’ requests to summon witnesses and study the hearing records, reasoning as follows: “The substantiation of the Khuzhins ’ claim seeks to obtain a new assessment of the circumstances and findings set out in the criminal judgment of 2 March 2001. The statements by the Khuzhin brothers are not reasoned or argued; they are not procedural requests as such [ sic ]; they have repeatedly studied the materials in the case file and can study them again by receiving copies of them; since they are serving a sentence imposed by a court judgment in a penitentiary institution, the case must be examined in their absence.” 56. On 4 March 2003 the Town Court refused for the same reasons the third applicant ’ s request to obtain attendance of witnesses and an expert. It also decided to proceed with the hearing in the absence of both parties ’ representatives. 57. On the same day the Town Court dismissed all of the applicants ’ claims. On the defamation issue it found that the article “The Land of Slaves” had been based on the true facts which had subsequently been established in the criminal judgment of 2 March 2001. As regards the claim relating to the damage caused to the third applicant ’ s van, it established that the vehicle had been returned to him after he had paid compensation to the victim for non-pecuniary damage and that the investigator had acted within his powers and had not caused any damage through his actions. 58. The applicants and Mrs Khuzhina appealed. They complained, in particular, of a breach of the principle of equality of arms. Mrs Khuzhina additionally pointed out that she had not been the representative of either Damir or Marat Khuzhin. 59. On 7 October 2003 the Civil Division of the Supreme Court of the Udmurtiya Republic held an appeal hearing. It appears that neither the applicants nor Mrs Khuzhina were in attendance. The court held that there had been no breach of equality of arms because the applicants had been duly notified of the hearing and informed of their right to appoint representatives. The second and third applicants had not made use of that right, whereas the first applicant ’ s representative, Mrs Khuzhina, had declined to take part in the hearing. In the court ’ s view, the joinder of the cases was also lawful and justified because the second applicant had been a party to both claims. 60. According to a letter of 30 April 2003 from the prosecutor of the Udmurtiya Republic to the second applicant, it was incumbent on the court hearing a civil claim to decide whether the detainee ’ s presence was necessary. The second applicant could have been escorted to the hearing if there had been a decision of the Glazov Town Court to that effect. 2. The third applicant ’ s action against the prosecutor 61. On an unspecified date the third applicant brought a defamation action against the prosecutor Mr Zinterekov. He challenged as defamatory the statements made by Mr Zinterekov in the Versiya television programme about the applicants ’ adolescent delinquency, insolence and greediness. 62. On 14 November 2003 the Glazov Town Court delivered its judgment. Mr Zinterekov made oral submissions to the court; the third applicant was neither present nor represented. In dismissing the defamation action, the court noted as relevant the materials relating to the criminal case against the applicants and, more specifically, a reference letter for the second applicant from his secondary school that concerned his unauthorised absences from classes and disorderly behaviour. The court held that the facts as established in the judgment of 2 March 2001 had justified Mr Zinterekov ’ s reference to the applicants as insolent and greedy. 63. On 19 December 2003 and 22 January 2004 the third applicant lodged his points of appeal, alleging, in particular, a violation of the principle of equality of arms. 64. The Court has not been provided with any information about the appeal proceedings. | The applicants were arrested in April 1999 and subsequently charged with kidnapping and torture. A few days before their trial in July 1999, a national television channel broadcast a talk show during which three prosecution officials discussed the case in detail. The first applicant complained in particular that the police had taken his passport photograph from the criminal case-file and, without his consent, given it to a journalist who had used it in a television show. |
295 | Victims of terrorist acts | THE CIRCUMSTANCES OF THE CASEThe background to the case The background to the case The background to the case 5. The applicants are the children of Lieutenant Colonel Ramón Romeo, who died following an attack carried out on 19 March 1981 in Bilbao (Spain) by a commando unit claiming to belong to the terrorist organisation ETA [1]. An alleged member of the commando unit, N.J.E., a Spanish national of Basque origin, was suspected of shooting the applicants’ father at point ‑ blank range. 6. One of Ramón Romeo’s children joined proceedings in Spain as a civil party. In May 2007 all the members of the commando unit were convicted by the Spanish courts, with the exception of N.J.E., who had reportedly fled to Mexico following the events of 1981 and later moved to Belgium. Legal challengesFirst set of surrender proceedings First set of surrender proceedings First set of surrender proceedings 7. A Spanish investigating judge of the Audiencia Nacional issued two European arrest warrants in respect of N.J.E. on 9 July 2004 and 1 December 2005 for the purpose of bringing criminal proceedings, respectively, on charges of attempted murder and terrorism committed in Bilbao on 14 June 1981, and participation in a criminal organisation, terrorism, intentional killing, infliction of serious bodily harm, and murder, committed in Bilbao on 19 March 1981. 8. By an order of the investigating judge of the Ghent Court of First Instance of 9 October 2013, N.J.E. was placed in detention. 9. In an order of 16 October 2013 the Committals Division ( chambre du conseil ) of the same court declared the European arrest warrants enforceable. 10. N.J.E. appealed against that order. She argued at the outset that execution of the arrest warrants should be refused, since prosecution of the offences was time-barred under Belgian law and the facts came within the extraterritorial jurisdiction of the Belgian courts (section 4(4) of the European Arrest Warrant Act of 19 December 2003, see paragraph 25 below). She also submitted that there were substantial reasons for believing that execution of the European arrest warrants would infringe her fundamental rights under Article 6 of the Treaty on European Union (section 4(5) of the above-mentioned Act). 11. On 31 October 2013, referring to Articles 6 and 7 of the preliminary part of the Code of Criminal Procedure (see paragraph 26 below), the Indictments Division of the Ghent Court of Appeal held that N.J.E. did not come within the jurisdiction of the Belgian criminal courts, taking the view that N.J.E. did not have her main residence in Belgium. The Indictments Division further noted that N.J.E. was not being prosecuted in Belgium for any of the offences provided for in Article 6 of the preliminary part of the Code of Criminal Procedure. Lastly, it observed that there had been no “complaint from the aggrieved foreign national or his or her family”, or any “official notice given to the Belgian authority by the authority of the country in which the offence [had been] committed” within the meaning of Article 7 § 2 of the preliminary part of the Code of Criminal Procedure. 12. Nevertheless, the Indictments Division refused execution of the European arrest warrants on the basis of section 4(5) of the European Arrest Warrant Act. It held that the punishable acts needed to be viewed in the broader context of Spain’s contemporary political history and the personal background of N.J.E., who, having been active in the “Basque armed resistance movement” in her twenties, was now a 55-year-old professional woman living a normal life in Ghent. Furthermore, basing its finding in particular on a report by the European Committee for the Prevention of Torture (CPT) concerning the latter’s periodic visit to Spain from 31 May to 13 June 2011, the Indictments Division held that there were substantial reasons for believing that execution of the European arrest warrant would infringe N.J.E.’s fundamental rights under Article 6 of the Treaty on European Union. It found in particular as follows: “... persons charged with punishable offences with an alleged terrorist motive are held in Spain under a different custodial regime, in degrading conditions possibly accompanied by torture, and with very limited contact with the outside world (family, lawyer and assistance), as borne out by evidence ... The investigating judge and the public prosecutor’s office were wrong to assert that there exists a presumption of observance of fundamental rights in Spain including with regard to former members of the Basque resistance movements, as [N.J.E.] probably was. Firstly, there can never be a presumption of observance of human rights. Secondly, the law itself runs counter to the existence [of such a presumption], given that the person concerned by the [European arrest warrant] has the right to demonstrate and explain convincingly that there are substantial reasons to fear a human rights violation. This additional safeguard is afforded within a strictly European legal context. Reports from international organisations support these genuine fears. Thirdly, the law nowhere requires it to be demonstrated that fundamental rights would be breached as a matter of absolute certainty.” 13. Lastly, the Indictments Division ordered N.J.E.’s release. 14. The Belgian Federal Prosecutor’s Office lodged an appeal on points of law against this judgment. It argued that, regard being had to the principle of mutual trust between the member States of the European Union (“the EU”), any decision to refuse extradition on the grounds of a breach of the fundamental rights of the person concerned had to be supported by detailed evidence demonstrating the existence of a clear threat to his or her rights and capable of rebutting the presumption of observance of fundamental rights. The judgment of the Indictments Division had provided no specific evidence of a risk of a breach of N.J.E.’s fundamental rights, and had been drafted in such general terms that the presumption of observance of human rights in favour of the State issuing the European arrest warrant could not be rebutted. 15. In a judgment of 19 November 2013 the Court of Cassation dismissed the appeal by the Federal Prosecutor’s Office. With regard to the principles applicable in the case before it, it observed the following: “Under section 4(5) of the Act of 19 December 2003, execution of a European arrest warrant must be refused if there are substantial reasons for believing that execution would infringe the fundamental rights of the person concerned as enshrined in Article 6 of the Treaty on European Union, namely the rights guaranteed by the [Convention], which stem from the constitutional traditions common to the European Union Member States, as general principles of Community law. Recital 10 of the preamble to Council Framework Decision 2002/584/JAI of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States makes clear that the mechanism of the European arrest warrant is based on a high level of confidence between Member States. This high level of confidence entails a presumption of observance by the issuing State of the fundamental rights referred to in section 4(5) of the European Arrest Warrant Act of 19 December 2003. In view of this principle of mutual trust between the Member States, any refusal to surrender the person concerned must be supported by detailed evidence of a clear threat to his or her fundamental rights capable of rebutting the presumption in favour of the issuing State of observance of those rights. The judge has unfettered discretion to assess whether the detailed evidence relied on, pointing to a clear threat to the fundamental rights of the person concerned, is sufficient to rebut the aforementioned presumption. The Court [of Cassation] merely verifies that the judge has not drawn inferences from his or her findings that are unconnected to the latter or cannot be justified by them.” Turning to the circumstances of the case before it, the Court of Cassation found as follows: “The judgment finds that there are substantial reasons for believing that the execution of the European arrest warrants would infringe the defendant’s fundamental rights because ‘persons charged with punishable offences with an alleged terrorist motive are held in Spain under a different custodial regime, in degrading conditions possibly accompanied by torture, and with very limited contact with the outside world (family, lawyer and assistance)’. In so finding, it refers to the 2011 reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of the Council of Europe. Hence, the judgment provides legal justification for refusing extradition, as there are substantial reasons for believing that execution of the European arrest warrants would infringe the fundamental rights of the person concerned under Article 6 of the Treaty on European Union. This ground of appeal cannot be upheld.” 16. In a letter of 27 November 2014 in reply to one of the applicants, concerning the refusal to execute the European arrest warrant in respect of N.J.E., the President of the Court of Cassation specified that the refusal to execute a European arrest warrant did not necessarily mean that the person concerned would escape punishment. He added as follows: « [O]ther procedures exist which should be implemented by the competent authority, as appropriate, so that persons suspected of serious crimes who are no longer in the State where the crimes were allegedly committed can be put on trial. You may assess in that regard whether or not to make an application to the Federal Prosecutor’s Office.” Second set of surrender proceedings 17. On 8 May 2015 a fresh European arrest warrant was issued against N.J.E. by an investigating judge of the Audiencia Nacional, concerning the acts committed in Bilbao on 19 March 1981 and classified, in particular, as “terrorist murder” in Spanish law. As to the risk of torture in Spain alleged by the Indictments Division, the investigating judge specified that the CPT’s information had been disputed by the Spanish Government in March 2012 and that, during its subsequent periodic visits in 2012 and 2014, the CPT had made no further mention of it. With regard to incommunicado detention, the judge stated that it was tightly regulated. It could be imposed only in exceptional cases concerning the investigation of armed gangs or terrorists; all persons subjected to such detention were guaranteed a forensic medical examination, and the national torture prevention mechanism included the possibility of unannounced visits by the Ombudsman; the person concerned was entitled to the assistance of a lawyer during the police and judicial proceedings; detention was always subject to judicial supervision, and the person concerned had the right to apply for a writ of habeas corpus; the communal areas were monitored by CCTV and interviews could be recorded; and the restrictions on communications with family and friends were limited to five days and had to be reviewed by a judge. Furthermore, the crime of torture under the Spanish Criminal Code encompassed any physical or psychological ill-treatment, and allegations of torture were examined by an independent judge. Lastly, the investigating judge observed that Spain had transposed the European directives strengthening existing safeguards in criminal matters. 18. Following the issuing of this arrest warrant, N.J.E. was re-arrested by the Belgian authorities on 20 June 2016 but was released on the same day. 19. In an order of 29 June 2016 the Committals Division of the Ghent Court of First Instance refused execution of the new arrest warrant. 20. On 14 July 2016, following an appeal by the Federal Prosecutor’s Office, the Indictments Division of the Ghent Court of Appeal upheld the order, ruling that the new arrest warrant did not contain any information that would lead to a different conclusion than that reached in its judgment of 31 October 2013. It based its finding on, among other things, the documents submitted by N.J.E. and, in particular, the United Nations Human Rights Committee’s concluding observations on the sixth periodic report of Spain (adopted at its session from 29 June to 24 July 2015), which recommended “once again” that the Spanish authorities put an end to incommunicado detention and guarantee the rights of all suspects to freely choose a lawyer whom they could consult in complete confidentiality and who could be present at interrogations. 21. On 15 July 2016 the Federal Prosecutor’s Office lodged an appeal on points of law, arguing in particular that there had been a breach of section 4(5) of the European Arrest Warrant Act on the grounds that the reference to the Human Rights Committee’s observations was insufficient to rebut the presumption of observance of human rights. 22. In a judgment of 27 July 2016 the Court of Cassation dismissed the appeal, finding that the ground of appeal relied on had been based on an incomplete reading of the impugned judgment. RELEVANT DOMESTIC LAW AND PRACTICEFramework Decision 2002/584/JAI Framework Decision 2002/584/JAI Framework Decision 2002/584/JAI 23. For the purposes of the present case the Court refers to its judgment in Pirozzi v. Belgium (no. 21055/11, §§ 24-29, 17 April 2018), which sets out the relevant provisions of Council Framework Decision 2002/584/JAI of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, together with a summary of the case-law of the Court of Justice of the European Union (“the CJEU”) in that regard. 24. Mention should also be made of the CJEU judgment in the case of Generalstaatsanwaltschaft (Conditions of detention in Hungary) (Case C ‑ 220/18 PPU, judgment of 25 July 2018). This judgment expanded on the methodology set out in the judgment in Aranyosi and Căldăraru (Joined Cases C‑404/15 and C‑659/15, judgment of 5 April 2016) and determined the extent of the assessment which the executing member State had to undertake where it had evidence pointing to systemic or generalised deficiencies with regard to the conditions of detention in prisons in the issuing State. The CJEU held, in substance, firstly, that the executing judicial authorities were required only to assess the actual and precise conditions of detention of the person concerned that were relevant in determining whether he or she was at real risk of being subjected to inhuman or degrading treatment. Secondly, where the issuing authority had given assurances that the person concerned would not be subjected to such treatment, the executing authority, in view of the mutual trust between the judicial authorities of the member States, had to rely on those assurances, in the absence of any specific indications that the conditions of detention were in breach of Article 4 of the Charter of Fundamental Rights of the European Union. The European Arrest Warrant Act of 19 December 2003 25. In Belgium, the above-mentioned framework decision was transposed by means of the European Arrest Warrant Act of 19 December 2003, the relevant provisions of which read as follows: Section 2 “1. The arrest and surrender of persons sought for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order between Belgium and the other Member States of the European Union shall be governed by this Act. 2. The arrest and surrender shall be carried out on the basis of a European arrest warrant. 3. The European arrest warrant is a judicial decision issued by the competent judicial authority of a European Union Member State, referred to as the issuing judicial authority, with a view to the arrest and surrender by the competent judicial authority of another Member State, referred to as the executing authority, of a person sought for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. ...” Section 3 “A European arrest warrant may be issued for acts punishable under the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.” Section 4 “Execution of the European arrest warrant shall be refused in the following cases: 1. If the offence on which the arrest warrant is based is covered by amnesty in Belgium, where Belgium had jurisdiction to prosecute the offence under its own law. 2. If it transpires from the information available to the judge that the requested person has been the subject of a final judgment in Belgium or in another Member State in respect of the same acts, provided that, where sentence has been passed, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State, or where a final judgment has been given in respect of the requested person in Belgium or in another Member State in relation to the same acts, which prevents further proceedings. 3. If the person who is the subject of the European arrest warrant may not, owing to his or her age, be held criminally responsible for the acts on which the arrest warrant is based under Belgian law. 4. Where the criminal prosecution or punishment of the requested person is statute-barred according to Belgian law and the acts fall within the jurisdiction of the Belgian courts. 5. If there are substantial grounds for believing that execution of the European arrest warrant would infringe the fundamental rights of the person concerned under Article 6 of the Treaty on European Union. ...” Section 11 “1. Within twenty-four hours following the actual deprivation of liberty, the person concerned shall be brought before an investigating judge, who shall inform him or her (1) of the existence and content of the European arrest warrant; (2) of the possibility of consenting to his or her surrender to the issuing judicial authority; and (3) of the right to choose a lawyer and an interpreter. This information shall be mentioned in the record of the hearing. ...” Section 15 “If the investigating judge deems the information provided by the issuing Member State in the European arrest warrant to be insufficient to enable a decision to be taken on the person’s surrender, he or she shall make an urgent request for the additional information required and may stipulate a time-limit for receiving it, taking account of the need to comply with the time-limit laid down in section 16(1). ...” Extraterritorial jurisdiction of the Belgian courts in criminal matters 26. Article 4 of the Belgian Criminal Code provides: “Offences committed outside the territory of the Kingdom of Belgium by Belgians or foreign nationals shall be punishable in Belgium only in those cases stipulated by law.” 27. The relevant provisions concerning the extraterritorial jurisdiction of the Belgian courts in criminal matters are contained in the preliminary part of the Code of Criminal Procedure: Article 6 “Criminal proceedings may be brought in Belgium against any Belgian or any person whose principal residence is in the Kingdom of Belgium who, outside the country’s territory, commits one of the following: 1. a criminal offence against State security; 1 bis. a serious violation of international humanitarian law for the purposes of Title I bis of Book II of the Criminal Code; 1 ter. a terrorist offence under Title I ter of Book II of the Criminal Code. 2. A criminal offence against public confidence as laid down in Chapters I, II and III of Book II, Title III, of the Criminal Code or an offence under Articles 497 and 497 bis, if the offence in question concerns either the euro or other currencies which are legal tender in Belgium or objects intended for use in their manufacture, forgery, alteration or falsification, or the effects, papers, seals, stamps or marks of the Belgian State or public authorities or institutions. 3. A criminal offence against public confidence under the same provisions, if the offence in question concerns currencies which are not legal tender in Belgium or objects intended for use in their manufacture, forgery, alteration or falsification, or the effects, papers, seals, stamps or marks of another country. In the latter case prosecution shall be possible only where the Belgian authority receives official notice from the authority of the country concerned.” Article 7 “1. Criminal proceedings may be brought against any Belgian or any person whose principal residence is in the Kingdom of Belgium who, outside the country’s territory, commits an act classified as a criminal offence under Belgian law, if the act in question is punishable by the legislation of the country where it was committed. 2. If the offence was committed against a foreign national, a prosecution may be brought only on an application by the public prosecutor. It must also be preceded by a complaint from the aggrieved foreign national or his or her family, or by official notice given to the Belgian authority by the authority of the country in which the offence was committed. If the offence was committed in wartime against a national of a country allied with Belgium for the purposes of the second paragraph of Article 117 of the Criminal Code, the official notice may also be given by the authority of the country of which the foreign national is or was a national.” RELEVANT INTERNATIONAL INSTRUMENT 28. In its concluding observations on the sixth periodic report of Spain, adopted at its 3192nd meeting held on 20 July 2015, the United Nations Human Rights Committee addressed the issue of incommunicado detention in the following terms: “17. The Committee reiterates its concern at the practice of court-authorized incommunicado detention. The Committee notes the initiative to reform the Code of Criminal Procedure and the information provided by the State party concerning the reduced use of incommunicado detention, but regrets that the reform does not abolish incommunicado detention or guarantee all the rights set out in article 14 of the Covenant, including the right to legal aid (arts. 7, 9, 10 and 14). The Committee reiterates its previous recommendations (CCPR/C/ESP/CO/5, para. 14) and recommends once again that the State party should take the necessary legislative measures to put an end to incommunicado detention and to guarantee the rights of all detainees to medical services and to freely choose a lawyer whom they can consult in complete confidentiality and who can be present at interrogations.” | In this case the applicants complained that their right to an effective investigation had been breached as a result of the Belgian authorities’ refusal to execute the European arrest warrants issued by Spain in respect of N.J.E., the individual suspected of shooting their father, who was murdered in 1981 by a commando unit claiming to belong to the terrorist organisation ETA. The Belgian courts had held that N.J.E.’s extradition would infringe her fundamental rights under Article 3 (prohibition of inhuman or degrading treatment) of the Convention. |
778 | Medical negligence and liability of health professionals | I. THE CIRCUMSTANCES OF THE CASE 10. The applicants, Franja and Ivan Šilih, were born in 1949 and 1940 respectively and live in Slovenj Gradec. 11. On 3 May 1993, at some point between midday and 1 p.m., the applicants'twenty-year-old son, Gregor Šilih, sought medical assistance in the Slovenj Gradec General Hospital for, inter alia, nausea and itching skin. He was examined by a duty doctor, M.E. On the basis of a diagnosis of urticaria (a type of allergic reaction), M.E. ordered the administration of intravenous injections of a drug containing glucocorticosteroid ( Dexamethason) and an antihistaminic ( Synopen ). Following the injections, the applicants'son's condition significantly deteriorated. This was probably a result of him being allergic to one or both of the drugs. His skin became very pale, he began to tremble and to feel cold; M.E. noticed signs of tachycardia. A diagnosis of anaphylactic shock was made. Subsequently, at 1.30 p.m., the applicant's son was transferred to intensive care. M.E. ordered the administration of, inter alia, adrenaline. By the time the cardiologist arrived, the applicants'son had stopped breathing and had no pulse. Cardiopulmonary resuscitation was given. At around 2.15 p.m. the applicants'son was connected to a respirator and his blood pressure and pulse returned to normal, but he remained in a coma; his brain was severely damaged. 12. On 4 May 1993 he was transferred to the Ljubljana Clinical Centre ( Klinični center v Ljubljani ), where he died on 19 May 1993. 13. The exact timing of the events which led to the death of the applicants'son and the action taken by M.E. in response to his deteriorating condition were disputed in the domestic proceedings. 14. On 13 May 1993 the applicants lodged a criminal complaint ( ovadba ) with the Slovenj Gradec Unit of the Maribor First-Instance Public Prosecutor's Office ( Temeljno javno tožilstvo Maribor, Enota v Slovenj Gradcu ) against M.E. for the criminal offence of “negligent medical treatment” ( nevestno zdravljenje ) which, following the applicants'son's death, was characterised as “a serious criminal offence that [had] caused damage to health” ( hudo kaznivo dejanje zoper človekovo zdravje ). The applicants argued that, through the intravenous injection of the two drugs, M.E. had given their son the wrong treatment and had subsequently failed to take appropriate corrective measures after his condition deteriorated. 15. In the course of the preliminary proceedings ( predkazenski postopek ) medical documents concerning the treatment administered to the applicants'son were seized by the police and, following his death, the duty investigating judge ( preiskovalni sodnik ) directed the Ljubljana Institute for Forensic Medicine ( Inštitut za sodno medicino v Ljubljani ) to conduct an autopsy and prepare a forensic report. 16. On 26 August 1993 the police submitted a report to the public prosecutor from which it appears that the Ministry of Health ( Ministrstvo za zdravstvo ) requested the Medical Association ( Zdravniško Društvo ) to set up a commission to prepare an opinion in the case. The commission was composed of the same experts as those who were preparing the forensic report (see paragraph 17 below). According to the report, the opinion was sent on 11 June 1993 to the Ministry of Health, which published it in two of Slovenia's main newspapers on 19 June 1993. 17. On 1 July 1993 the Ljubljana Institute for Forensic Medicine submitted their report, which stated, inter alia : “The anaphylactic shock which ... followed the administration of Dexamethason and Synopen was most likely due to sensitivity to one of the mentioned drugs. The medical treatment of anaphylactic shock in the Slovenj Gradec Hospital was, on the basis of the medical records, in accordance with established medical practice. The consequent ventricular fibrillation was influenced by the infection of the heart muscle, which Gregor Šilih must have contracted several weeks before 3 May 1993. After the ventricular fibrillation occurred, the hospital staff gave resuscitation. According to the medical records, this was performed in accordance with established medical practice. In the period from Gregor Šilih's admission to the Slovenj Gradec Hospital until his death, we have not found any acts or omissions in his medical treatment which could be characterised as clearly inappropriate or negligent.” 18. On 8 April 1994 the public prosecutor dismissed the applicants'criminal complaint on the ground of insufficient evidence. A. Criminal proceedings 19. On 1 August 1994 the applicants, acting as “subsidiary” prosecutors ( subsidiarni tožilec ), lodged a request for the opening of a criminal investigation ( zahteva za preiskavo ) into M.E.'s conduct. 20. On 8 November 1994, having heard representations from M.E. on 26 October 1994, the investigating judge of the Maribor First-Instance Court ( Temeljno sodišče v Mariboru ) granted their request. On 27 December 1994, on an appeal ( pritožba ) by M.E., the interlocutory-proceedings panel ( zunaj- obravnavni senat ) of the Maribor First-Instance Court overturned the investigating judge's decision after finding that the evidence in the case-file, in particular the forensic report, did not afford reasonable grounds for suspecting M.E. of manifestly acting in breach of professional standards. 21. An appeal by the applicants and a request for the protection of legality ( zahteva za varstvo zakonitosti ) were dismissed, the latter in a decision of 29 June 1995 by the Slovenj Gradec District Court ( Okrožno sodišče v Slovenj Gradcu ), which obtained jurisdiction in the case after the reorganisation of the judiciary in 1995. The applicants contested that decision. On 5 October 1995 the Maribor Higher Court ( Višje sodišče v Mariboru ) dismissed their appeal on essentially the same grounds as those on which the previous appeal and request for the protection of legality had been rejected, namely that the applicants were not entitled to appeal against the interlocutory-proceedings panel's decision not to institute criminal proceedings against the doctor. 22. Subsequently the applicants obtained a medical opinion from Doctor T.V. who stated, inter alia, that myocarditis (inflammation of the heart muscle), which had previously been considered a contributory factor in the death of the applicants'son, could have occurred when he was in anaphylactic shock or even later. As a result, on 30 November 1995 they lodged a request to reopen the criminal investigation (see paragraph 90 below). In addition, they lodged a motion to change the venue of the proceedings to the Maribor District Court ( Okrožno sodišče v Mariboru ). On 31 January 1996 the Maribor Higher Court granted their motion for a change of venue. 23. On 26 April 1996 the interlocutory-proceedings panel of the Maribor District Court granted the applicants'request for the reopening of the investigation. An appeal by M.E. was rejected by the Maribor Higher Court on 4 July 1996. 24. In the course of the investigation, the investigating judge examined witnesses and obtained an opinion from P.G., an expert at the Institute of Forensic Medicine in Graz ( Austria ). P.G. stated in his report that the administration of the antihistaminic had led to the applicants'son's serious allergic reaction. He expressed doubts as to the pre-existence of myocarditis. 25. On 10 February 1997 the investigating judge closed the investigation. 26. Owing to the complexity of the case, the applicants asked the Maribor District Public Prosecutor's Office ( Okrožno državno tožilstvo v Mariboru ) to take over the conduct of the prosecution. Their request was rejected on 21 February 1997. The Head of the Maribor District Public Prosecutor's Office subsequently explained to the Supreme Public Prosecutor ( Vrhovni državni tožilec ) that, while P.G.'s report confirmed the existence of reasonable suspicion that M.E. had caused the death by negligence, it was not a sufficient basis on which to lodge an indictment as that required a degree of certainty. 27. On 28 February 1997 the applicants lodged an indictment accusing M.E. of the criminal offence of “causing death by negligence” ( povzročitev smrti iz malomarnosti ). 28. On 7 May 1997, upon M.E.'s objection to the indictment, the interlocutory-proceedings panel of the Maribor District Court directed the applicants to request, within three days, additional investigative measures (see paragraph 93 below). 29. The investigating judge subsequently examined several witnesses and ordered a forensic report by K.H., an Austrian forensic expert in the field of emergency medicine and anaesthesia. K.H. stated in his report that the ultimate reason for the death of the applicants'son was relatively uncertain, so that the issue of the effectiveness of the measures taken by M.E in response to the son's condition was of no relevance. 30. On 22 June 1998 the investigating judge informed the applicants that it had been decided to close the investigation. He reminded them that they must either lodge an indictment or a further request for additional investigating measures within fifteen days (see paragraphs 91-92 below). 31. On 30 June 1998 the applicants asked the investigating judge to question K.H., P.G. and T.V. 32. On 24 November 1998, after questioning K.H., the investigating judge informed the applicants that the investigation had been closed. They were again reminded that they must either lodge an indictment or a further request for additional investigative measures within fifteen days. 33. On 10 December 1998 the applicants lodged an indictment supplemented by evidence that had been obtained in the extended investigation. On 12 January 1999 an interlocutory-proceedings panel rejected M.E.'s objection to the initial indictment as unfounded. 34. On 22 January 1999 M.E. lodged a request for the protection of legality, claiming that the indictment submitted on 10 December 1998 had not been served on her. On 25 February 1999 the Supreme Court ( Vrhovno sodišče ) quashed the Maribor District Court's decision of 12 January 1999 and remitted the case to the District Court with instructions to serve the indictment of 10 December 1998 on M.E. M.E. subsequently lodged an objection to that indictment and on 3 June 1999 the interlocutory-proceedings panel decided to refer the case back to the applicants, directing them to obtain further evidence – by requesting additional investigative measures – within three days from the service of its decision. 35. The applicants complied with the directions and on 21 June 1999 requested additional investigative measures, in particular the examination of K.H., P.G. and T.V. In their request, they complained of the remittal of the case since they considered that the evidence should have been further assessed at the trial and not at that stage of the proceedings. 36. Further to their request, the investigating judge ordered a supplementary report from K.H. and, on 3 December 1999, informed the applicants that further investigative measures had been taken and that they had 15 days in which to lodge an indictment or request additional measures. 37. Following a request by the applicants on 16 December 1999 for further measures, the investigating judge ordered a reconstruction of the events of 3 May 1993 and the examination of two witnesses. 38. The investigation was closed on 3 May 2000. The applicants were reminded of the requirements under section 186, paragraph 3, of the Criminal Procedure Act (“ the CPA” – see paragraph 92 below). 39. In the meantime, on 28 June 1999 the applicants again made an unsuccessful request to the public prosecutor to take over the conduct of the prosecution. 40. On 19 May 2000 the applicants filed a further indictment and the additional evidence they had been directed to obtain. 41. In August 2000 the applicants complained to the Judicial Council ( Sodni svet ) about the length of the criminal proceedings. They also challenged the three judges sitting on the interlocutory-proceedings panel which had previously heard M.E.'s objection to the indictment. On 10 October 2000 the President of the Maribor District Court rejected the applicants'request for the judges to stand down. 42. Following a further objection to the indictment by M.E., the interlocutory-proceedings panel examined the case on 18 October 2000 and decided to discontinue the criminal proceedings. Relying in particular on the opinions of the Ljubljana Institute of Forensic Medicine and K.H., it found that the applicants'son's reaction to the administration of Dexamethason and/or Synopen was a consequence of his sensitivity to those drugs and of myocarditis, which was undoubtedly a pre-existing condition. As regards the conduct of M.E., the interlocutory-proceedings panel found that there was insufficient evidence to substantiate the applicants'accusation that she had committed the criminal offence alleged. The applicants were ordered to pay the court fees and the expenses incurred in the proceedings since 23 January 1999 (the date the CPA was amended so as to require the aggrieved party to pay costs if the proceedings ended with the dismissal of the indictment). 43. On 7 November 2000 the applicants lodged an appeal which the Maribor Higher Court dismissed on 20 December 2000. They then petitioned the Public Prosecutor-General ( Generalni državni tožilec ), asking him to lodge a request for the protection of legality with the Supreme Court. Their petition was rejected on 18 May 2001. 44. In the meantime, on 13 March 2001 the applicants lodged a constitutional appeal with the Constitutional Court ( Ustavno sodišče ), complaining of procedural unfairness and the length of the proceedings and that they had been denied access to a court since the indictment had been rejected by the interlocutory-proceedings panel. On 9 October 2001 the Constitutional Court dismissed their appeal on the ground that after the final discontinuance of criminal proceedings a “subsidiary” prosecutor could not appeal to the Constitutional Court, as he had no locus standi before that court. 45. On 27 March 2001 the applicants also lodged a criminal complaint alleging improper conduct on the part of seven judges of the Maribor District and Higher Courts who had sat in their case. The complaint was dismissed as unfounded by the Maribor District Public Prosecutor's Office on 13 June 2001. 46. Subsequently, the applicants made several attempts to reopen the case. Among other motions filed by the applicants that were rejected as inadmissible by the authorities were the following. On 3 July 2001 they lodged a “request for the criminal proceedings to be reinstated”, which was considered in substance to be a request for the reopening of the case. On 29 August 2001 the interlocutory-proceedings panel of the Maribor District Court dismissed the request on the grounds that the criminal proceedings had been discontinued in a decision that was final and that it would be detrimental to the accused to reopen the case. On 9 November 2001 the Maribor Higher Court rejected an appeal by the applicants dated 4 September 2001. On 24 June 2002 the applicants lodged with the Maribor Higher Court a “request for immediate annulment of the entire criminal proceedings ... conducted before the Maribor District Court”. This was also considered in substance to be a request for the reopening of the case and was likewise dismissed. On 27 November 2002 the Maribor Higher Court rejected an appeal by the applicants. 47. Ultimately, on 17 July 2002 the applicants lodged a fresh indictment against M.E. On 14 July 2003 the Slovenj Gradec District Court struck the indictment out because the prosecution of the alleged offence had become time-barred on 3 May 2003. B. Civil proceedings 48. On 6 July 1995 the applicants instituted civil proceedings against the Slovenj Gradec General Hospital and M.E. in the Slovenj Gradec District Court for the non-pecuniary damage they had sustained as a result of their son's death in the amount of 24,300,000 Slovenian tolars (SIT). 49. On 10 August 1995 they also instituted proceedings against the head of the internal medical care unit, F.V., and the director of the Slovenj Gradec General Hospital, D.P. Further to a request by the applicants, the court joined the two sets of proceedings. 50. All the defendants in the proceedings had lodged their written pleadings by October 1995. 51. On 30 August 1997, in a supervisory appeal ( nadzorstvena pritožba ) to the President of the Slovenj Gradec District Court, the applicants argued that the civil proceedings should proceed despite the fact that criminal proceedings were pending since the latter had already been considerably delayed. 52. On 21 October 1997, referring to sub-paragraph 1 of section 213 of the Civil Procedure Act (see paragraph 97 below), the court stayed the civil proceedings pending a final decision in the criminal proceedings. It noted that the outcome of the civil proceedings would depend to a large extent on the determination of the preliminary question ( predhodno vprašanje ), namely the verdict in the criminal proceedings. The applicants did not appeal against that decision, which therefore became final on 17 November 1997. 53. On 22 October 1998 Judge S.P. replied to a supervisory appeal by the applicants dated 15 October 1998, inter alia in the following terms: “[The applicants] are'subsidiary'prosecutors in the criminal proceedings and therefore are very well aware that the proceedings before the Maribor District Court, where the preliminary question is being determined, have not been completed. Their supervisory appeal concerning the stay of the [civil] proceedings is therefore pure hypocrisy.” Upon a complaint by the applicants lodged with the Ministry of Justice, Judge S.P. was ordered to explain her reply to the applicants. 54. In February 1999 the applicants again filed a supervisory appeal; the stay, however, remained in force. 55. On 27 August 1999 Judge P.P., to whom the case appears to have been assigned in the meantime, sent the applicants a letter, in which he stated, inter alia : “In the instant case the determination of criminal liability is a preliminary question which is relevant to the determination of the civil claim, since a civil court cannot establish facts which are different from those established by the criminal court.” 56. On 8 September 1999 the applicants filed a motion for a change of venue which the Supreme Court rejected on 13 October 1999. 57. On 6 December 1999 the Slovenj Gradec District Court informed the applicants that the reasons for staying the proceedings still obtained. 58. On 12 March 2001 the applicants filed a supervisory appeal requesting that the stay of the civil proceedings be lifted. On 19 May 2001 Judge P.P. scheduled a hearing for 13 June 2001. However, that hearing was subsequently cancelled at the applicants'request after their representative explained that she had been injured in a road accident and was on sick leave. 59. On 11 June 2001 the applicants filed a further motion for a change of venue. On 27 September 2001 the Supreme Court decided to move the venue to the Maribor District Court on the grounds of “tension that was impeding and delaying the trial”. 60. The case was subsequently assigned to Judge M.T.Z. On 3 April 2002 the Maribor District Court held a hearing which was adjourned as the applicants indicated that they wished to lodge a request for the judges officiating at that court to stand down. 61. After lodging a criminal complaint against some of the judges (see paragraph 45 above), the applicants filed a motion on 8 April 2002 for all the judges at the Maribor District Court and Maribor Higher Court to stand down. Having been asked to comment on the applicants'request, Judge M.T.Z. stated, inter alia, that she had realised at the hearing on 3 April 2002 that one of the defendants, with whom she had shaken hands at the hearing, was a close acquaintance (“ dober znanec ”) of her father. She added that the applicants were constantly lodging objections which had made it impossible to conduct the proceedings properly. It would appear that Judge M.T.Z subsequently herself requested permission to withdraw from the case. On 12 August 2002 the request for the judges to stand down was granted in so far as it concerned Judge M.T.Z. The case was assigned to Judge K.P. 62. On 21 November 2002 and 20 March 2003 the Supreme Court rejected the applicants'motions for a change of venue. 63. A hearing scheduled for 12 June 2003 was adjourned at the applicants'request, after they had alleged that their lawyer was unwilling to represent them since her daughter had been denied medical care in the Ljubljana Clinical Centre. They subsequently informed the court that their lawyer would, in fact, continue to represent them. 64. On 28 October 2003 the Maribor District Court held a hearing at which it examined F.V. and M.E. It would appear from the records of the hearing that the applicants were not allowed to ask a series of twelve questions they wished to put. The judge's decision not to allow the questions was based mostly on objections made by the defendant, although on four occasions the court does appear to have stated reasons for its decision not to allow the question concerned. 65. On 8 December 2003 the applicants filed a motion for Judge K.P. to stand down. That request was rejected on 18 December 2003. 66. A hearing scheduled for 16 January 2004 was adjourned because the applicants had lodged a further motion for a change of venue. On 5 March 2004 the applicants lodged another motion. Both motions were rejected by the Supreme Court (on 22 January 2004 and 13 May 2004 respectively). 67. It appears that hearings scheduled for 23 and 24 March 2005 were adjourned because of the applicants'newly appointed lawyer's commitments in another, unrelated case. 68. On 4 May 2005 the applicants filed written submissions and amended their claim for damages. They also requested that the proceedings be expedited. 69. On 12 October 2005 Judge D.M., to whom the case had apparently meanwhile been assigned, was ordered by the President of the Maribor District Court to treat the case with priority and to report every sixty days on the status of the proceedings. The President explained his decision by referring to the length of the proceedings, the case's high profile and the intervention by the Ombudsman ( Varuh človekovih pravic ). 70. A hearing was held on 23, 25 and 27 January 2006 before Judge D.M. The applicants withdrew their claims in respect of F.V. and D.P. After the hearing, they requested Judge D.M. to stand down on the grounds that she had refused to allow them adequate time to reply to their opponent's extensive submissions which had been filed on the same day. Their request was rejected by the President of the Maribor District Court on 30 January 2006. However, on 31 January 2006 Judge D.M. herself asked to withdraw from the proceedings on the ground that her full name had been mentioned in a newspaper article on 28 January 2006 which had also stated that she had been asked to stand down owing to the alleged unequal treatment of the parties in the proceedings. The president of the court upheld her request as being “certainly well-founded”. 71. The case was subsequently assigned to Judge A.Z. 72. Hearings were held on 16 June and 25 August 2006. 73. On 25 August 2006 the Maribor District Court delivered a judgment rejecting the applicants'claim, which ultimately amounted to SIT 10,508,000 in respect of non-pecuniary damage and SIT 5,467,000 in respect of pecuniary damage. The applicants were ordered to pay legal costs to the defendants. Relying on the expert opinions, the court concluded that M.E. could not have foreseen the applicants'son's reaction to the drugs that were administered to him and that she and the hospital staff had acted in accordance with the required standard of care. In addition, the court rejected as unsubstantiated the applicants'claim that the hospital was not properly equipped. 74. On 25 October 2006 the applicants lodged an appeal with the Maribor Higher Court. They argued that the first-instance court had not correctly established all the relevant facts, had wrongly applied the substantive law and had committed a procedural error by not allowing or taking into account certain evidence and, in particular, by refusing to obtain a further expert opinion. 75. On 15 January 2008 the Maribor Higher Court rejected the appeal as unsubstantiated and upheld the first-instance court's judgment. 76. On 28 February 2008 the applicants lodged an appeal on points of law ( revizija ). 77. On 10 July 2008 the Supreme Court rejected the applicants'appeal on points of law after noting that, apart from the reference to the European Court of Human Rights'judgment finding a violation of Article 2 of the Convention, it raised essentially the same complaint as their appeal to the Higher Court, namely the refusal to obtain or consider certain evidence the applicants considered relevant. It rejected the complaint as unsubstantiated, finding that the lower courts had acted in accordance with the law. It further held that the European Court of Human Rights'judgment, which related to the requirement for the prompt examination of cases concerning death in a hospital setting, could not have influenced its conclusion as to the lawfulness of the refusal to obtain or consider the evidence in question. 78. On 15 September 2008 the applicants lodged a constitutional appeal with the Constitutional Court alleging a violation of the following constitutional guarantees: the right to equality before the law, the inviolability of human life, the right to equal protection, the right to judicial protection and the right to legal remedies. The proceedings are still pending. C. The criminal complaint filed against the first applicant 79. On 29 April 2002 the Maribor District Public Prosecutor lodged a bill of indictment ( obtožni predlog ) against the first applicant alleging that she had engaged in insulting behaviour by saying to an official at the Maribor District Court “I have had enough of this f*** court, the damn State does not do anything, isn't it aware that our son was killed!”. The prosecution was based on a criminal complaint filed by the Maribor District Court. 80. On 5 October 2004 the Maribor District Court withdrew the criminal complaint as a result of the Ombudsman's intervention (see paragraph 85 below). The Maribor Local Court subsequently dismissed the bill of indictment. D. Findings of the Ombudsman 81. The applicants lodged several petitions with the Ombudsman's office concerning the conduct of the civil proceedings. Their case was reported in the Ombudsman's Annual Reports of 2002, 2003 and 2004. 82. In a letter to the President of the Slovenj Gradec District Court on 24 April 2001, the Deputy Ombudsman stressed that the issue of criminal liability could not be regarded as a preliminary question in the civil proceedings instituted against the doctor and the hospital. He further stated that there was no justification for staying the civil proceedings. 83. In a letter to the applicants of 29 August 2002 and his Annual Report of 2002 (pp. 42 and 43), the Ombudsman criticised the conduct of Judge M.T.Z. He stressed that the judge had expressed concerns about her ability to appear impartial only after the applicants had filed the request for her to stand down and after the Ombudsman's intervention in the case, although she had been aware of the reasons for the concerns beforehand. 84. The section of the Ombudsman's Report of 2003 (pp. 226-228) dealing with the applicants'case and in particular criticising aspects of the judge's conduct of the civil proceedings states, inter alia : “In the record of the hearing [of 28 October 2003] reference is made to twelve questions which the plaintiffs were not permitted to ask. ... As regards the majority of these twelve questions, the record contains no indication why the judge did not allow the plaintiffs to put the questions. In each instance, there was a prior objection by the defendants'representatives to the question. ... Although [the applicants'] reactions, statements and proposals were perhaps extreme on occasion, the authorities, including the courts, ought to have taken into account their emotional distress ... [a factor which] may necessitate the trial being conducted in a particularly tolerant and flexible way, [though] without breaching procedural rules to the detriment of the defendants. However, the record of the hearing gives the impression of a tense rather than dispassionate atmosphere at the hearing, an impression that is reinforced also by the records of the exchanges between the judge and the plaintiffs'representative.” 85. In his Annual Report of 2004 (pp. 212-214), the Ombudsman criticised the Maribor District Court for filing the criminal complaint against the first applicant. The report drew attention to the Maribor District Court's explanation that it was required by law to file and pursue the criminal complaint as it would be guilty of a criminal offence if it did not. The Ombudsman stressed that there was no legal basis for such a conclusion. On the contrary, a criminal charge for an offence of insulting behaviour could only be pursued on the basis of the aggrieved party's criminal complaint, which in the instant case was the Maribor District Court's complaint. Following the Ombudsman's intervention and in view of the arguments set out in his letters, the Maribor District Court decided to withdraw the criminal complaint against the first applicant. III. DECLARATION OF SLOVENIA UNDER FORMER ARTICLES 25 AND 46 OF THE CONVENTION OF 28 JUNE 1994: 105. On 28 June 1994, when depositing the instrument of ratification of the Convention with the Secretary General of the Council of Europe, the Ministry of Foreign Affairs of the Republic of Slovenia made the following declaration: “The Republic of Slovenia declares that it recognizes for an indefinite period of time, in accordance with Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, the competence of the European Commission of Human Rights to deal with petitions addressed to the Secretary General of the Council of Europe by any person, non-governmental organisation or group of individuals claiming to be the victim of [a] violation of the rights set forth in the Convention and its Protocols, where the facts of the alleged violation of these rights occur after the Convention and its Protocols have come into force in respect of the Republic of Slovenia. The Republic of Slovenia declares that it recognizes for an indefinite period of time, in accordance with Article 46 of the Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6 of Protocol No. 4 and Article 7 of Protocol No. 7, as compulsory ipso facto and without special agreement, on condition of reciprocity, the jurisdiction of the European Court of Human Rights in all matters concerning the interpretation and application of the Convention and its Protocols and relating to facts occurring after the Convention and its Protocols have come into force in respect of the Republic of Slovenia.” | The applicants’ 20-year-old son, who sought medical assistance for nausea and itching skin, died in hospital in 1993 after he was injected with drugs to which he was allergic. The applicants complained that their son died because of medical negligence and that there had been no effective investigation into his death. |
225 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1970 and is currently being held in Rappahannock Prison in Stafford, Virginia (United States). A. Criminal and asylum proceedings 6. On 14 September 2001 an arrest warrant was issued against the applicant by an investigating judge of the Brussels Regional Court. A search of his home had led to the discovery of false passports, automatic weapons and ammunition, as well as chemical formulae that could be used for making explosives and a detailed plan of the United States Embassy in Paris. 7. Following a simultaneous search of a Brussels café, where the applicant had been a regular customer, drawing on information provided by another suspect, who had also been arrested, the police discovered 59 litres of acetone and 96 kilograms of sulphur powder. Under the arrest warrant which was subsequently issued, the applicant was accused of acts of criminal conspiracy, destruction by explosion, possession of combat weapons and belonging to a private militia. 8. The applicant admitted the offences as charged and was sentenced to ten years’ imprisonment by the Brussels Regional Court on 30 September 2003 for attempting to blow up the Kleine-Brogel Belgian army base, forgery, and instigating a criminal conspiracy to attack persons and property. The court’s judgment included the following finding: “[the defendant] attempted to commit one of the most serious crimes since Belgian independence; in spite of the lapse of time since his arrest, he has never shown any remorse, the danger which he poses has remained intact and his case presents no mitigating circumstances.” 9. In a judgment of 9 June 2004 the Brussels Court of Appeal upheld the applicant’s ten-year prison sentence for a range of offences, including: “ - attempting to blow up the Kleine-Brogel Belgian army base, with the added circumstance that the perpetrator must have presumed that there were one or more persons present at the time of the explosion ..., - holding a position of command in a conspiracy formed to perpetrate serious crimes liable to life imprisonment and, in the present case, to carry out a terrorist attack ..., - receiving from a foreign organisation funds intended for conducting, in Belgium, an activity liable to jeopardise national security ..., - being in unlawful possession of a combat weapon ..., - setting up, and assisting or participating in, a private militia or other organisation of private individuals for the purpose of using force ...” 10. On 26 January 2005 the applicant was sentenced in absentia by a Tunisian military court to ten years’ imprisonment for belonging to a terrorist organisation abroad in peacetime. On 29 June 2009 the Permanent Military Court in Tunis issued a warrant for the applicant to be brought before it, for which an application for enforcement was submitted to the Belgian authorities by diplomatic note of 10 September 2009. 11. The principal prison sentence imposed on the applicant in Belgium was completed on 13 September 2011. Two subsequent subsidiary prison sentences of six and three months respectively were imposed in 2007 and enforced immediately. The applicant completed these sentences on 23 June 2012. 12. On 25 August 2005, meanwhile, the applicant had submitted an asylum application in Belgium, which the Commissioner General for Refugees and Stateless Persons dismissed in a decision of 10 April 2009. This decision refused the applicant refugee status and subsidiary protection on the grounds that he had committed offences contrary to the aims and principles of the United Nations within the meaning of Article 1 f) c of the Geneva Convention. That decision was upheld by the Aliens Appeals Board in a judgment of 18 May 2009. B. Extradition proceedings 1. Judicial stage of the validation of the US indictment 13. By a diplomatic note of 8 April 2008 the US authorities transmitted to the Belgian authorities a request for extradition of the applicant under the Extradition Agreement concluded between the Kingdom of Belgium and the United States of America on 27 April 1987. The reasons for the request were the indictment issued by the District Court of the District of Columbia (Washington D.C.) against the applicant on 16 November 2007, comprising the following charges: “A. Conspiracy to kill United States nationals outside of the United States, in violation of the following provisions: 18 U.S.C. § 2332 (b) (2) and 1111 (a) B. Conspiracy and attempt to use of weapons of mass destruction, in violation of the following provisions: 18 U.S.C. § 2332a and 2 C. Conspiracy to provide material support and resources to a foreign terrorist organisation, in violation of the following provisions: 18 U.S.C. § 2339B D. Providing material support and resources to a foreign terrorist organisation, in violation of the following provisions: 18 U.S.C. § 2339B and 2.” 14. The extradition request continued as follows: “A warrant for the arrest of Mr Nizar Trabelsi was issued on 16 November 2007 by order of ... judge .... The underlying facts of the charges indicate that in mid-2000 or earlier, while in Germany, and elsewhere in Europe, and in Afghanistan, Nizar TRABELSI knowingly entered into an agreement with al Qaeda associates, including Osama bin Laden, to provide material support and resources, to unlawfully kill United States nationals in targeted facilities in Western Europe, and to use a large-scale explosive device (a weapon of mass destruction) to destroy property in Western Europe used by the United States and/or a department or agency of the United States.” 15. According to the documents in support of the extradition request, notably the applicable extracts from criminal law (Title 18 of the United States Code, U.S.C.) transmitted by the US authorities, these offences carried the following penalties: “A. 18 U.S.C. § 2332 (b) (2) and 1111 (a): a maximum term of life imprisonment, or a combined fine and prison sentence. B. 18 U.S.C. § 2332a and 2: a maximum term of life imprisonment. C. 18 U.S.C. § 2339B: a fine or a maximum term of 15 years imprisonment, or a combination of both. D. 18 U.S.C. § 2339B and 2: a fine or a maximum term of 15 years imprisonment, or a combination of both.” 16. On 4 June 2008 the Federal Attorney transmitted to the chambre du conseil of the Nivelles Regional Court a request for enforcement of the arrest warrant issued on 16 November 2007 against the applicant. In his request the Federal Attorney pointed out that the maximum sentences for the offences underlying the request for extradition were fifteen and ten years respectively. 17. By a diplomatic note of 12 November 2008 the US authorities made the following assurances concerning the applicant to the Belgian authorities: “The Government of the United States assures the Government of Belgium that, pursuant to his extradition, Nizar Trabelsi will not be prosecuted before a military commission, as enabled by the Military Commissions Act of 2006. The Government of the United States further assures the Government of Belgium that upon extradition, Trabelsi will not be detained or incarcerated in any facility other than a civilian facility in the United States.” 18. By an order of 19 November 2008, the chambre du conseil of the Nivelles Regional Court acceded to the Federal Attorney’s request and declared the arrest warrant issued by the US District Court enforceable. However, the order added the following stipulation: “It emerges from the examination of the documents enclosed with the arrest warrant issued for the purposes of extradition ... that the ‘overt acts’ listed by the US authorities in support of the first charge include several which correspond very precisely to the acts committed in Belgian territory which justify the [applicant’s] conviction in Belgium. ... Therefore, by virtue of the ne bis in idem principle, the arrest warrant issued for the purposes of extradition on 16 November 2007 by the competent judicial authority of the United States of America cannot be declared enforceable in respect of ‘overt acts’ nos. 23, 24, 25, 26 set out in paragraph 10 of the first charge, which are deemed repeated in support of the other charges.” 19. Having examined an appeal lodged by the applicant, the Indictments Division of the Brussels Court of Appeal delivered a judgment on 19 February 2009 upholding the aforementioned order and declared the warrant enforceable. Having noted that the extradition concerned acts (committed outside Belgium) other than those for which the applicant had been prosecuted and convicted in Belgium, the Court of Appeal argued that: “There are no serious grounds for believing that the request for extradition was submitted for the purposes of prosecuting or punishing Trabelsi Nizar for considerations of race, religion, nationality or political opinion or that this individual’s situation is liable to be worsened for any of these reasons. ... Nor is there any serious reason to believe that if Trabelsi Nizar were to be extradited he would be subjected to a flagrant denial of justice, acts of torture or inhuman or degrading treatment; there is no reason to suppose that the United States of America will not meticulously comply with all the provisions, including Articles 7.2 and 7.3, of the Extradition Agreement concluded with Belgium, and every reason to believe that Trabelsi Nizar will be detained in a civilian facility and tried by the ordinary courts, in accordance with conventional procedure. ...” 20. On 24 April 2009 the applicant lodged an appeal on points of law against the judgment of the Court of Appeal. He relied on the risk of treatment incompatible with Article 3 of the Convention and the risk of a flagrant denial of justice. He contended that the Court of Appeal had not assessed the consequences of his extradition to the United States in the light of the general situation in that country or his own specific circumstances, and argued that the Court of Appeal should have adopted the same line of reasoning as the Court in the case of Saadi v. Italy [GC] (no. 37201/06, ECHR 2008). He also complained that the Court of Appeal had not addressed the potential problem under Article 3 of sentencing a person to an irreducible life sentence. Lastly, he complained of a violation of the ne bis in idem principle. 21. By a judgment of 24 June 2009 the Court of Cassation dismissed the applicant’s appeal on points of law. It ruled that the Court of Appeal had provided adequate reasons and legal justification for its decision, considering “ - that the requesting State is currently conducting a thorough review of its anti-terrorist policy, stepping up its action against torture and inhuman and degrading treatment, and is on the verge of suspending the special courts and abolishing the unlimited detention without trial of persons captured in the context of international conflict; - that under the terms of the formal guarantees provided in support of the extradition request, the appellant will be tried by an ordinary civilian court in accordance with the normal procedure in force in the requesting State, enjoying all the rights and remedies available under the national judicial system; - that the appellant is not liable to a life sentence for the offences for which his extradition has been requested and that the penalties which they carry can be commuted into other penalties with possibilities for release on parole; - that because the evidence relied upon by the appellant lacks any specific aspect affecting his own personal situation, which would have made the risks he alleges more credible, it does not substantiate any serious concern that he could be exposed to a flagrant denial of justice or acts of torture or inhuman and degrading treatment. ...” 22. In a letter of 11 November 2009 sent to the Belgian authorities at the behest of the Federal Attorney responsible for the extradition request, the US Department of Justice supplied the following additional information: “The statutory maximum sentence for a conviction of each of the first two of these offenses is life imprisonment and the statutory maximum sentence for the latter two offenses is 15 years. In addition, the United States Sentencing Guidelines, which are the voluntary guidelines that judges may choose to follow in sentencing defendants, call for a life sentence for each of the first two of these offenses. A life sentence is not mandatory and the court has the discretion to issue a sentence less than life. In issuing a sentence, the court may consider the gravity of the offense and whether any lives were lost or property was damaged. In this instance, Trabelsi did not succeed in carrying out his plans to kill United States nationals and to use weapons of mass destruction. Thus, the court in issuing a sentence, in its discretion, may consider that Trabelsi was not successful in carrying out his plans. The court also may consider any mitigating factors, such as whether the defendant acknowledges responsibility for his actions. If the court, in its discretion, sentences Trabelsi to a punishment of less than life, i.e. a term of years, Trabelsi’s sentence could be reduced by up to 15% for good behaviour while incarcerated. This type of sentence reduction is only possible, however, if the original sentence is to a term of years, however long, rather than a life sentence. Therefore, if Trabelsi were sentenced to a term of 20, 30, or even 50 years, then he could be eligible for a sentence reduction of up to 15% of his original sentence based on his good behaviour while incarcerated. If, however, Trabelsi is sentenced to life, he would not be eligible for any reduction in his sentence. Finally, Trabelsi can apply for a Presidential pardon or sentence commutation. (A pardon would eliminate the conviction; a commutation would be an adjustment to the sentence.) However, this is only a theoretical possibility in Trabelsi’s case. We are not aware of any terrorism defendant ever having successfully applied for a Presidential pardon or sentence commutation.” 2. Judicial and administrative phase of the response to the extradition request a) Opinion of the Indictments Division 23. Once the US indictment was declared operative, the proceedings relating to the response to the extradition request were commenced. 24. On 4 February 2010 the Federal Attorney forwarded his written opinion to the Brussels Court of Appeal inviting it, in the light of the Court’s case-law, particularly Kafkaris v. Cyprus [GC] (no. 21906/04, ECHR 2008), to issue a positive opinion on the applicant’s extradition. He pointed out that in the case of the first two charges, the applicant was liable to a life sentence, while in the case of the other two charges he was liable to a fifteen-year prison sentence. 25. In a letter of 29 March 2010 to the Federal Department of Justice the applicant took note of the fact that at the hearing on 24 March 2010 the Federal Attorney had acknowledged a mistake in his observations in the enforcement request proceedings concerning the sentence to which the applicant might be liable following his extradition to the United States (see paragraph 16 above). 26. On 10 June 2010 the Indictments Division of the Court of Appeal issued a favourable opinion on the applicant’s extradition, specifying a number of conditions: “ - extradition may only be granted: i. on condition that the death penalty is not imposed on N. Trabelsi or, if the United States cannot guarantee this condition, on condition that the death penalty is not enforced; ii. on condition that any life sentence is accompanied by the possibility of commutation of sentence, even if the conviction is based on terrorist acts; - in the event of a request for N. Trabelsi’s re-extradition to a third country, such as Tunisia, the United States must request the agreement of Belgium should Tunisia send the US Government any future request for extradition after N. Trabelsi has been handed over to them. If the US fails to accept these conditions the extradition must be refused.” b) Ministerial decree granting extradition 27. By a diplomatic note of 10 August 2010 the US authorities confirmed that the applicant was not liable to the death penalty and assured the Belgian authorities that he would not be extradited to any third country without the agreement of the Belgian Government. The US authorities reiterated that the maximum life prison sentence was not mandatory and that even if all the constituent elements of the criminal offences in question were secured and proved, the court had the discretion to impose a lighter sentence. The note specified that US legislation provided for several means of reducing life sentences: “Regarding the question of commutation of a life sentence, the United States wishes to make it clear, in the first instance, that if Trabelsi were convicted, a life sentence is not mandatory; the court has the discretion to impose a sentence less than life. Also, a defendant has a statutory right to appeal the conviction and sentence, including a life sentence, both directly, and collaterally through a habeas corpus petition. In addition, there are certain statutory bases for reduction of an already-imposed sentence, including where the defendant has provided substantial assistance in the investigation or prosecution of a third party (Federal Rule of Criminal Procedure 35(b) and Title 18 United States Code, Section 3582(c)(1)(B)), or for compelling humanitarian reasons such as the terminal illness of the prisoner (Title 18, United States Code, Section 3582(c)(lXA)(i)). In addition to these measures, the defendant may request that his sentence be reduced as an exercise of executive clemency by the President of the United States. The President’s power under Article H, Section 2, of the U.S. Constitution, “to grant reprieves and pardons” includes the authority to commute (reduce) a sentence of imprisonment, including a life sentence. There are established regulations and procedures governing the application process for executive clemency, and the Office of the Pardon Attorney has been established in the Department of Justice to review all applications for executive clemency and prepare recommendations for the President on those applications. The U.S. Constitution gives the President absolute discretion to grant executive clemency to a defendant. We note that while such discretion has been exercised sparingly, such relief has, on occasion, been granted for serious offenses implicating national security. For example, in 1999, President Clinton commuted the sentences of 13 members of the FALN, a violent Puerto Rican nationalist organization responsible for numerous bombings in the 1970s and early 1980s, who had been convicted of conspiracy to commit armed robbery, bomb making, sedition and other offenses.” 28. On 23 November 2011 the Minister for Justice adopted a ministerial decree granting the applicant’s extradition to the US Government. Having noted that the applicant would in no case be liable to the death penalty, the decree examined each of the other guarantees provided. 29. On the matter of possible life imprisonment, the ministerial decree read as follows: “Under US Federal criminal law the maximum penalty laid down in respect of the charges – the offences under A and B – precludes early release and release on parole. Life sentences as provided for in these two provisions of the US Criminal Code are therefore, from the legal and factual angles, in principle served for the whole of the person’s life. ... In diplomatic note no. 21 of 10 August 2010 from the United States Embassy, the US authorities provided a guarantee that (even) if an irreducible life sentence were handed down it would be possible to obtain a pardon from the US President. This right is set out in Article 2, II of the US Constitution. Furthermore, Presidential pardons have in fact been granted on several occasions in the past, including the recent past, to persons sentenced by the US courts, particularly at the Federal level. ... Even if we view it in its historical context, the FALN case shows that in cases likely to fall under the current legislation on terrorism in force since 11 September 2001, which cases must objectively be seen as much more serious than those of which the person sought is suspected and which are therefore liable to lead to severer penalties, Presidential pardons can indeed be granted. Even though some individuals have since 2001 been given irreducible life sentences ... for terrorism or acts linked to terrorism, such cases cannot be compared to the Trabelsi case in terms of their content. All those who have been sentenced to life imprisonment in the US without early release or release on parole were charged, prosecuted and finally convicted for active involvement in terrorist attacks which had caused deaths and/or injuries and considerable material damage, for example the attacks on the US Embassies in Nairobi, Kenya, and Dar-es-Salaam (Tanzania) on 7 August 1998. ... Those offences were manifestly incomparable in extent and nature with those attributed to the person whose extradition has been requested. In the aforementioned cases persons, sometimes enormous numbers of people, in addition to US nationals, suffered substantial physical and material damage. The person sought in the present case, however, is being prosecuted for having planned and prepared a terrorist attack which was never carried out. He did not succeed, in cooperation with others, in causing human injuries or even material damage. It is therefore manifestly plausible that the offences as charged are not such that the maximum applicable sentence laid down in the US Criminal Code, that is to say an irreducible life sentence, could be called for or imposed. A recent survey by the Human Rights First NGO shows that of the 214 persons prosecuted since 11 September 2001 for terrorist offences linked to al-Qaeda or other Islamist groups or for offences connected with such terrorist offences, 195 have been convicted. Each case involved prosecutions or convictions instigated by Federal attorneys and courts. 151 of the convicted persons were sentenced to imprisonment, while twenty were released on licence or given prison terms corresponding to the period of custody already served. The average length of prison sentences handed down was 8.4 years. Only 11 of those convicted were sentenced to life imprisonment. The report also points out that the proceedings complied with the right to a fair trial (“Human Rights First, In pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts – 2009 Update and Recent Developments”, 2009, 68 pp.). The statistics show that, objectively, the risk of being sentenced to life imprisonment without parole in cases of prosecution for terrorist offences is considerably lower than is commonly thought.” 30. In connection with the applicant’s possible re-extradition to Tunisia, the ministerial decree continued as follows: “By diplomatic note no. 21 of 10 August 2010 from the US Embassy the US authorities clearly indicated that if the Tunisian authorities applied to the United States for extradition, it would be turned down. ... Given the decision to refuse extradition to the Tunisian Republic, in view of the fact that re-extradition necessitates the agreement of the State which authorised the initial extradition, no re-extradition to the Tunisian Republic is possible. Since the Belgian authority refused extradition to the Tunisian Republic, if Tunisia were to transmit to the US a request for extradition in the future the US would also refuse it, and no extradition by the United States to the Tunisian Republic is possible.” 31. Lastly, the ministerial decision analysed the application of the ne bis in idem principle as follows: “Under the Agreement (the Extradition Agreement of 27 April 1987), Belgium and the United States of America ... have mutually undertaken to refuse extradition if the person sought has been acquitted in the requested State or has been convicted in the same State for the same offence as that for which extradition is being requested. Ratification ... incorporated this agreement into the Belgian and US legal systems. In other words it is not the acts but the legal classification of the acts, namely the offences, which must be identical. ... The facts forming the basis of the offences in question correspond to ‘overt acts’ which individually or together function as factual elements supporting the charges. The double jeopardy principle does not exclude the possibility of using or not using these elements. In the present case the offences for which the person sought was finally convicted by the Brussels Court of Appeal on 9 June 2004 do not correspond to the offences listed in charges A to D in the arrest warrant forming the basis for the US extradition request. The constituent elements of the respective US and Belgian offences, their scope and the place(s) and time(s) of their commission do not match up. ... Under US Federal criminal law an ‘overt act’ is a (factual) element, an act, a behaviour or a transaction which in itself may not necessarily be classified as an offence... An ‘overt act’ is merely a piece of supporting evidence which in itself or in conjunction with other overt acts may help constitute the offence or offences for which the person is being prosecuted, that is to say conspiracy, for instance to kill US nationals (see charge A). ... Although each of ‘overt acts’ nos. 24, 25 and 26 could be classified as an offence, these acts nonetheless do not constitute offences for which the extradition has been requested.” 32. Article 2 of the decree stated that “extradition will take place after the person sought has complied with the requirements of the Belgian courts ”. 33. On the same day, under another ministerial decree, the Minister for Justice refused the Tunisian authorities’ request for the applicant’s extradition (see paragraph 10 above). c) Application for judicial review before the Conseil d’Etat 34. On 6 February 2012, relying on violations of Article 3 of the Convention and Article 4 of Protocol No. 7, the applicant lodged an application with the Conseil d’Etat for judicial review of the ministerial decree granting his extradition to the United States of America. 35. At the Conseil d’Etat hearing on 19 September 2013 the applicant relied on the Court’s judgment in Vinter and Others v. United Kingdom [GC] (nos. 66069/09, 130/10 and 3896/10, 9 July 2013). He deduced from this judgment that the Court had now adopted a position requiring preventive review of whether a life prison sentence was reducible or not before the prisoner began his sentence, and therefore that the distinction drawn in the Babar Ahmad and Others v. United Kingdom judgment, (nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, 10 April 2012) depending on whether the person subject to extradition had been convicted or not was no longer relevant. 36. In a judgment of 23 September 2013 the Conseil d’Etat dismissed the application for judicial review. As to the complaint under Article 3 of the Convention and the risk of an irreducible life sentence, the Conseil d’Etat reasoned as follows: “Even supposing that the applicant is sentenced by the US courts to life imprisonment, it should be noted that in its Vinter and Others v. United Kingdom judgment of 9 July 2013 [the Court] ruled that: ‘a life sentence does not become irreducible by the mere fact that in practice it may be served in full’, that ‘no issue arises under Article 3 if a life sentence is de jure and de facto reducible ...’ and that ‘where national law affords the possibility of review of a life sentence with a view to its commutation, remission, termination or the conditional release of the prisoner, this will be sufficient to satisfy Article 3’. In the present case, as in that of Babar Ahmad and Others v. United Kingdom which led to [the Court’s judgment] of 10 April 2012, the applicant has not been sentenced by a US court to life imprisonment, and has still less begun serving such a sentence. As in the aforementioned case, therefore, the applicant does not show that in the event of a life sentence, the question will arise whether there is any legitimate penological justification for continuing his imprisonment. Moreover, in his most recent submissions the applicant acknowledges that a possible life sentence imposed on him would be reducible de jure. US law allows him either to request a review or apply for a Presidential pardon or commutation of sentence, and the applicant does not contend that this power of executive clemency or sentence commutation is accompanied by restrictions comparable to those in issue in the [Court’s] aforementioned judgment of 9 July 2013. Although the applicant challenges the assertion that such a sentence is reducible de facto, the explanations provided to the opposing party by the US authorities do show that the US President has already used his power to commute sentences. Therefore, the legal remedy available to the applicant in the event of a life prison sentence is not excluded in practice. Furthermore, the applicant’s contention that since the 11 September 2001 terrorist attack it has been inconceivable for the US President to grant a pardon to or commute the sentence of a person convicted of terrorism has not been substantiated by any reliable information, nor can it be in view of the relatively short period of time, as compared with a life sentence, which has elapsed since the said attack and any criminal sentences subsequently imposed. As in Babar Ahmad ..., therefore, it has not been established that the US authorities would, when appropriate, refuse to implement the available sentence-reducing mechanisms where there was no legitimate penological justification for continuing the applicant’s imprisonment. Any possible life sentence imposed on the applicant would therefore also be reducible de facto. Consequently, it is unnecessary to determine whether the opposing party was wrong to consider that the applicant would not necessarily be sentenced to life imprisonment, because, even if he were sentenced to such a prison term, this penalty would not constitute a breach of Article 3 [of the Convention]”. 37. As to the complaint under Article 5 of the Extradition Agreement between the Kingdom of Belgium and the United States of America, Article 4 of Protocol No. 7 to the Convention and Article 14 § 7 of the International Covenant on Civil and Political Rights, the Conseil d’Etat held that: “The US authorities request the applicant’s extradition on four charges, namely: 1) Conspiracy to kill United States nationals outside of the United States; 2) Conspiracy and attempt to use of weapons of mass destruction; 3) Conspiracy to provide material support and resources to a foreign terrorist organisation; 4) Providing material support and resources to a foreign terrorist organisation, in violation of the following provisions. Again according to the US authorities, in order to commit these offences as charged the applicant and four accomplices carried out a series of ‘overt acts’, including those for which extradition is being granted to the US authorities presented as follows: [a list of 28 charges follows]. In Belgium the charges (‘in the Brussels judicial district and, on related charges, elsewhere in the Kingdom’) against the applicant are as follows: [a list of 13 charges follows]. Comparing all the ‘overt acts’ for which extradition has been granted to the US authorities with all the Belgian charges valid ‘in the Brussels judicial district and ... elsewhere in the Kingdom’, it will be noted that the former have no territorial link with the Kingdom of Belgium, constituting a set of acts which serve as the constituent elements of the four charges presented by the US authorities. It emerges from the case file that the applicant is wanted by the US authorities for a number of offences in respect of which he has not been ‘found guilty, convicted or acquitted in the requested State’ and that the ‘overt acts’ constitute so many elements to be used by the US judicial authorities to establish whether the applicant is guilty or innocent of the four charges brought against him.” C. Indication of an interim measure and following stages in the proceedings before the Court 38. On 6 December 2011, the date of notification of the ministerial decrees relating to the requests for extradition (see paragraphs 28 and 33), the applicant lodged a request with the Court for the indication of an interim measure pursuant to Rule 39 of the Rules of Court with a view to suspending his extradition. 39. On the same day the Court acceded to the applicant’s request and decided to indicate to the Government, in the interests of the parties and of the proper conduct of proceedings before it, that it should not extradite the applicant to the United States of America. 40. On 20 December 2011, arguing that the interim measure had been indicated prematurely because the applicant had not yet been placed in custody pending extradition and that such a measure would create a situation detrimental to the proper administration of justice, the Belgian Government requested that the measure be lifted. 41. On 11 January 2012, the Court, having re-examined the application in the light of the information supplied by the parties, decided, on the basis of the said information, to refuse to lift the interim measure. 42. On 21 May 2012 the Government submitted a second request for the lifting of the interim measure. 43. In reply, the Court pointed out, in a letter of 25 May 2012, that the request to lift the measure and the application would be re-examined once the judgment delivered on 10 April 2012 by the Court in Babar Ahmad and Others v. United Kingdom, cited above, had become final. 44. In a letter of 25 June 2012 the Court informed the parties that the examination of the request to lift the interim measure had been postponed indefinitely in view of the request for referral to the Grand Chamber of the cases Vinter and Others v. United Kingdom (no. 66069/09) and Harkins and Edwards v. United Kingdom (nos. 9146/07 and 32650/07). 45. On 3 August 2012 the Court informed the parties that it had been decided to refer the aforementioned Vinter case to the Grand Chamber and that the question of the request to lift the interim measure would be re-examined when a decision had been taken on the request for referral of the aforementioned case of Babar Ahmad and Others to the Grand Chamber. 46. The application was communicated to the respondent Government on 27 November 2012. 47. In their observations on the admissibility and merits of the application the Government requested, for the third time, the immediate lifting of the interim measure. 48. In a letter of 7 January 2013 the Court replied that the Government would be informed in due course of the decision taken by the Court on the interim measure. 49. On 15 January 2013 it was decided to maintain the interim measure for the duration of the proceedings before the Court. 50. In a letter of 18 June 2013 in reply to a fourth request from the Government to lift the interim measure, the Court stated that the interim measure had been maintained and would be applied until the end of the proceedings before it. 51. On 10 July 2013 the Court informed the parties that examination of the case had been adjourned in view of the imminent delivery of the judgment of the Conseil d’Etat and of the Grand Chamber judgment in Vinter and Others [GC] (nos. 66069/09, 130/10 and 3896/10, 9 July 2013). 52. In reply to a question from the Government on the deadline for dealing with the case, the Court informed them on 25 September 2013 that the examination of the case would begin at the end of October or the beginning of November. 53. On 18 October 2013 the Court informed the parties that the chamber constituted to examine the case was intending to relinquish the case to the Grand Chamber under Article 30 of the Convention. 54. By letter of 31 October 2013 the applicant expressed his agreement to such relinquishment. The Government, on the other hand, indicated, by letter of 8 November 2013, that they opposed relinquishment. D. Detention pending extradition 55. On 24 June 2012, having served the sentences imposed on him (see paragraph 11 above), the applicant was taken into custody pending extradition in pursuance of section 3 of the Extradition Act of 15 March 1874. 56. On 7 June 2012 the applicant lodged a first application for release with the Nivelles Regional Court. By an order of 12 June 2012 the chambre du conseil dismissed the application. The order was upheld by the Indictments Division of the Brussels Court of Appeal on 28 June 2012. 57. Subsequently, having meanwhile been transferred first to Bruges Prison and then to Hasselt Prison, the applicant lodged a second application for release on 13 August 2012 with the Hasselt Regional Court. On 24 August 2012 the chambre du conseil allowed his application. On appeal from the public prosecutor, by judgment of 6 September 2012, the Indictments Division of Antwerp Court of Appeal set aside this decision and dismissed the application. 58. On 3 December 2012 the applicant lodged a third application for release. By an order of 14 December 2012 the chambre du conseil of the Hasselt Regional Court declared the application unfounded. The applicant appealed to the Indictments Division of Antwerp Court of Appeal, which upheld the aforementioned decision by judgment of 10 January 2013. 59. In January 2013, having meanwhile been transferred to Mons Prison, the applicant lodged a fourth application for release, which was declared unfounded by the chambre du conseil of the Mons Regional Court on 4 February 2013, and then by the Indictments Division of the Mons Court of Appeal on 21 February 2013. 60. On 23 August 2013, having meanwhile been transferred to Ittre Prison, the applicant lodged a fifth application for release. This application was dismissed by the chambre du conseil of Nivelles Regional Court on 28 August 2013 and then by the Indictments Division of the Brussels Court of Appeal on 12 September 2013. 61. Meanwhile, on 5 September 2013, the applicant had left Ittre Prison for Bruges Prison, having obtained a date for his wedding to a Belgian national with whom he had had two children. E. The applicant’s extradition 62. On 3 October 2013 the applicant was informed that he was being transferred from Bruges Prison to Ittre Prison. In fact he was being taken to Melsbroek military airport, where Federal Bureau of Investigation (FBI) agents were waiting for him. At 11.30 a.m. he was extradited to the United States. 63. The Minister for Justice issued a public statement announcing the applicant’s departure at 1.30 p.m. 64. At 3 p.m. the applicant’s lawyer made a highly urgent ex parte application to the President of Brussels Regional Court. The decision, which was given at 6.30 p.m., stated that the Belgian State was required to comply with the interim measure indicated by the Court, and ordered “prohibition or suspension of the applicant’s extradition, as far as this might be possible”, on pain of a fine of EUR 5,000 (five thousand euros). The Court has not been informed of any appeal against this order. F. The applicant’s detention in the United States 65. In the United States the applicant was immediately placed in custody. On 7 October 2013, assisted by an officially appointed lawyer, he was brought before the District Court of the District of Columbia to hear the charges against him. 66. The applicant is currently being held in the Rappahannock regional prison in Stafford (Virginia). On 1 November 2013 a letter from the prison administration to the Belgian authorities stated that the applicant was subject to the same conditions of detention as all other prisoners. 67. According to an email sent on 6 November 2013 by the applicant’s US lawyer to his representative before the Court, the applicant was allowed to have postal contact with the outside world, but all correspondence would be translated and read in advance by the US Government. He was also allowed to have telephone contact with some members of his family provided that an interpreter was available. Close relatives could visit him subject to obtaining a US entry visa. 68. The applicant was visited by his lawyer, who, in an email sent to a member of his family on 7 December 2013, said that he had been placed in an isolated cell. She expressed concern about his mental state. | This case concerned the extradition, which had been effected despite the indication of an interim measure by the Court, under Rule 39 of the Rules of Court, of a Tunisian national from Belgium to the United States, where he is being prosecuted on charges of terrorist offences and is liable to life imprisonment. |
558 | Way of life, forced evictions and alternative accommodation | I. THE CIRCUMSTANCES OF THE CASE 7. The individual applicants are mostly travellers ( gens du voyage ). The movement ATD Quart Monde ( the applicant association [known internationally as ATD Fourth World] ) is an association established under the laws of France, having its registered office in Paris. Under Article 2 of its constitution, “[t]he Movement ATD Quart Monde brings together individuals, families and population groups who refuse the fatality of the poverty in which they are condemned to live, and, together with them, men and women, of all origins, who share the same refusal ...”. A. Background to the case 1. The Val d ’ Oise département 8. The département of Val d ’ Oise has been home to travellers for very many years. A survey carried out in 2001 by the Association Départementale Voyageurs-Gadjé (ADVOG) identified the presence of 2, 500 mobile homes, representing a population of about 10, 000 individuals, of which 17% belonged to nomadic families, 42% to sedentary families and 41% to semi-sedentary families, also described as “forced itinerant” or “forced sedentary”. The “forced itinerant” families wish to settle down but are obliged to keep moving as and when they are evicted. The “forced sedentary” families remain nomadic to some extent but are obliged to settle on a particular site when there is no great risk of eviction. These families often remain, when they are evicted, within a specific area covering several municipalities, not straying too far from focal points such as the school attended by their children, the hospital where the elderly are treated or centres of economic activity. As regards the sedentarised families, they are owners, tenants or occupiers of land (private or municipal ) on which they live permanently, and families remaining encamped on a site that is normally reserved for short stays (Source : Plans départementaux d ’ Aide au Logement des Personnes défavorisées du Val d ’ Oise (PDALPD) 2004-2007 and 2008-2010). 9. The Val d ’ Oise has two regulatory arrangements aimed at travellers: (a) The “ département -level travellers ’ reception and accommodation programme ” ( schéma départemental d ’ accueil et d ’ habitat des gens du voyage; under the so-called “Besson Acts” of 31 May 1990 and 5 July 2000 ... ), which governs, depending on the needs and existing encampment capacity, the nature, location and capacity of the encampment facilities to be created in municipalities of over 5, 000 inhabitants. (b) The “ département -level accommodation action plan for persons in need ” ( plan départemental d ’ action pour le logement des personnes défavorisées, PDALPD) ( provided for by the above-mentioned Law of 31 May 1990 and the Law against exclusion of 29 July 1998), which takes into account the problems raised by sedentary and semi-sedentary families. 10. Pursuant to the above-mentioned Law of 5 July 2000, and after the annulment of the first travellers ’ reception and accommodation programme by the administrative courts, a new programme was adopted in November 2004 for the Val d ’ Oise in respect of 2004-2010. It provided for the creation, by the 53 municipalities of over 5, 000 inhabitants in that département, of 1, 035 caravan spaces in encampment areas, including 219 already existing spaces, with 70% State financing. 11. The PDALPD 2004-2007 plan for the Val d ’ Oise, adopted in June 2004 and following the previous 2000-2003 plan, stipulated that the actions aimed at travellers should take two forms : first, the creation of encampment areas for traveller families and, second, the provision of family rental accommodation, to be used by sedentary or semi-sedentary families, as already provided for by the previous plan. That accommodation took the form of land, with or without individual houses, on which families could place their caravans to be used for permanent residence. The circular of 21 March 2003 ( concerning the implementation of the housing policy and the programming of State financing ) provides for the State financing of the family rental accommodation under the same conditions as encampment areas ( at 70% of the pre-tax cost within the ceiling); actual houses can be financed with the help of the rental housing loan for social integration ( prêt locatif aidé d ’ intégration, PLAI). 2. Municipality of Herblay 12. More than 2,000 travellers live in the area covered by the municipality of Herblay (approximately 10% of its population), occupying between 400 and 500 caravans, and most of them have been there for many years. According to the Government, around four-fifths of those mobile homes are in breach of the land-use plan. 13. In 2000 an urban and social study ( maîtrise d ’ œuvre urbaine et sociale, MOUS) was initiated with a view to providing alternative accommodation for the travellers who had settled in the municipality (created by circular no. 3465 of 22 May 1989, the aim of the study is to promote access to housing for individuals and families in difficulty). The study gave rise, after a social diagnosis by the ADVOG, to a memorandum of understanding dated 23 November 2004 between the prefect of the Val d ’ Oise, the president of the département council and the mayor of Herblay. The project provided for the creation of four sites, representing a total of 26 family plots. In September 2005 the land-use plan in respect of those sites underwent a simplified revision procedure. The first site, containing eight plots, or 24 spaces, was opened in December 2008. 14. Under the 2004-2010 travellers ’ accommodation programme for the département ( see paragraph 10 above ) the municipality of Herblay was exempted from the requirement to provide a site for nomadic travellers because of the number of settled families living in mobile homes and the study that was underway ( see paragraph 13 above ). 15. Pursuant to section 9 of the above-cited Law of 5 July 2000, the mayor of Herblay issued in July 2003, and again in January 2005, orders prohibiting the encampment of travellers ’ mobile homes throughout the municipality. B. The present application 16. The applicants, who are all French nationals, had been living in Herblay, in the locality of “Bois du Trou-Poulet”, for many years and some of them had been born there ... They were part of a group of twenty-six families (42 adults and 53 children, making a total of 95 people) who had settled on the land. Some of the applicants were owners but most were tenants, while others were squatters. According to the land-use plan published in May 2003, the plots of land in question were situated in zone ND, corresponding to a “ natural area qualifying for protection on account of the quality of its landscape and its various characteristics ”. The plots had also been classified as ND in the earlier land-use plans. In the zone NDc, where the applicants had settled, camping and caravanning were allowed provided the site was suitably equipped and the persons concerned had the requisite authorisation. 1. Eviction procedure ( a) Bailiff ’ s official report 17. On the application of the municipality of Herblay ( the “municipality” ) and in accordance with a decision of the president of the Pontoise tribunal de grande instance dated 19 November 2003, two bailiffs, accompanied by police officers, visited the site on 12 February 2004 in order to take note of the occupation of the land and establish the identity of the occupiers. The bailiffs drew up an official report in which they recorded, for each part of the land, the identity of the occupiers and their type of accommodation ( caravans, bungalows, huts, permanent buildings ). The report stated in particular as follows : “the whole of the site in question is cluttered with a large number of pieces of vehicles, engines, spare car parts and various rubbish in the wooded area around the sites where we recorded the occupiers ’ identities”. ( b) Injunction proceedings 18. On 30 April and 11 May 2004 the municipal authorities brought civil proceedings against forty individuals, including the applicants, before the urgent-applications judge of the Pontoise tribunal de grande instance, seeking a ruling that the land was being unlawfully occupied and that the defendants had “illegal placed mobile homes and constructions thereon”, together with an injunction requiring them to remove all their vehicles and mobile homes together with any constructions from the site, on pain of a penalty of 200 euros (EUR) per day, and stipulating that the municipality would be entitled, after a period of two months from the issuance of the injunction, to carry out the eviction and clearance itself with police assistance. 19. The hearing took place on 18 June 2004. In a decision of 2 July 2004 the urgent-applications judge dismissed the municipality ’ s application. After noting that the zone NDc, occupied by the defendants, allowed for camping and caravanning, but that the encampment of caravans for more than three months was subject to authorisation unless the land was specially equipped, which was not the case here, the judge considered it sufficiently established that the defendants had been occupying the land for many years, long before the publication of the land-use plan, that some of them had a regular water or electricity supply and that the long-standing toleration of the situation by the municipality, while not amounting to a right, precluded a finding of urgency or of a manifestly unlawful nuisance, which alone could bring the matter within the jurisdiction of the urgent-applications judge. 20. The judge further observed that, with the annulment of the travellers ’ reception and accommodation programme ( see paragraph 10 above ), the municipality was required by the Law of 5 July 2000 to provide a site for itinerant travellers. Lastly, having regard to the bailiffs ’ official report, the judge ordered the defendants to clear the land of all abandoned vehicles and rubbish within a period of two months, on pain of a fine of EUR 200 per day, and ruled that after that period the municipality would be entitled to have the land cleaned up at the defendants ’ expense. ( c) Proceedings on the merits ( i) Judgment of the tribunal de grande instance 21. In September 2004 the municipality brought an action against forty individuals, including the applicants, in the Pontoise tribunal de grande instance, reiterating the requests it had made to the urgent-applications judge. In a judgment of 22 November 2004 the court granted the authorities ’ requests. Two other individuals (including one of the applicants) also intervened in the proceedings voluntarily. The defendants and interveners claimed that they had been living on the Bois du Trou-Poulet site for many years, since before the publication of the land-use plan, in a zone where the development of land for camping and caravanning was authorised. They relied on the right to housing, as a constitutional principle, and on the Connors v. the United Kingdom judgment (no. 66746/01, 27 May 2004), and referred to the obligation for the municipality to make land available for travellers. In the alternative, they said that they would agree to judicial mediation. 22. The hearing took place on 27 September 2004. In a judgment of 22 November 2004 the court upheld the municipality ’ s claims. It began by finding that the land-use plan, published in May 2003, was automatically enforceable provided it had not been declared null and void, and that the land occupied by the defendants was in the zone NDc, allowing in principle for the land to be equipped for camping and caravanning, but that the land had not been developed in compliance with the rules of the Town and Country Planning Code ( see Article L. 443-1 of the Code). The court held that the defendants, in setting up their caravans, mobile homes and cabins on the land in the absence of a permit or a decision by the prefecture in their favour, had breached the land-use plan, and that the supply of electricity by EDF (Électricité de France) did not confer any rights. After stressing the importance of the right to housing and its legislative and constitutional basis, the court took the view that, while the legislature and the public authorities had to use their best endeavours to guarantee this right as far as possible, it could not be granted “without regard for legality or in breach of the applicable rules”. 23. The court then analysed the above-cited Connors judgment and found that the situation before it was different, since there was no question here of a summary eviction procedure ( unlike Connors ), or any lack of procedural safeguards, because the defendants had been able to raise all the arguments that they considered necessary for their defence before an “independent tribunal”, ruling on the merits in compliance with all the procedural rules applied in France. The court found that it did not consider that it was breaching Article 8 of the Convention in giving a decision after responding to the defendants ’ submissions and that, in a State governed by the rule of law, it would be unthinkable for the enforcement of a court decision to amount to “inhuman and degrading treatment”. It added that there was no doubt that if the decision was not voluntarily enforced by the defendants, the municipal authorities, the officers of the court and the State ’ s enforcement bodies would ensure that enforcement was carried out in accordance with the principle of human dignity. 24. As regards the obligation of the municipality, after the annulment of the travellers ’ reception and accommodation programme, to make land available for travellers, the court referred to a letter from the prefect of the Val d ’ Oise to the mayor showing that the municipality was considered to have fulfilled the obligations imposed by the Law of 5 July 2000. The court further observed that the fact that the defendants had been occupying the land for such a long time might call into question their status as “travellers” and that the département -level programmes were aimed at the nomadic population, not sedentary communities which had been settled in the same place for ten or sometimes twenty years. It rejected the request for judicial mediation on the ground that it would have little chance of success, in view of the context and the large number of defendants. 25. Consequently, the court ordered the defendants and interveners to remove all vehicles and mobile homes from the land they were occupying, and to demolish any erections thereon, within three months from the date of service of the judgment, failing which they would be fined EUR 70 per person for each day of non-compliance, and held that, after that time-limit, the municipality itself would be entitled to carry out the removal and demolition at the defendants ’ expense and with police assistance. The court also ordered them to pay EUR 50 to the municipality in respect of irrecoverable expenses. It took the view that, having regard to the context of the dispute and the lack of urgency resulting from a situation that had existed for many years, it was not necessary to order the provisional enforcement of the judgment. ( ii) Judgment of the Court of Appeal 26. Thirty-six of the defendants, including the applicants, lodged an appeal with the Versailles Court of Appeal. The applicant association filed submissions as a voluntary intervener. 27. The hearing was held on 8 September 2005. In a judgment of 13 October 2005 the Court of Appeal declared the applicant association ’ s voluntary intervention admissible and upheld the judgment, except in respect of a couple ( who are not applicants ), for whom it ordered an expert ’ s report in order to ascertain the conditions of their accommodation and the conformity thereof with the land-use plan. 28. The Court of Appeal first found that the defendants ’ occupation of the land breached the land-use plan, which was automatically enforceable, and responded as follows to the arguments raised : “While the right to housing is a constitutional principle, and while Articles 3 and 8 of the Convention ... guarantee respect for each person ’ s private and family life and protect everyone from inhuman and degrading treatment, these superior principles have not in this particular case been impaired, as the municipality ’ s action had a legal basis derived from compliance with regulations that are indiscriminately binding on everyone, thus sufficing to establish the public interest that is necessary for the exercise of such action, giving rise to adversarial proceedings at first instance and on appeal, and as the enforcement of a court decision given with due regard for defence rights cannot constitute the alleged degrading and inhuman treatment. The long duration of the occupation does not create rights, neither does the tolerance, however lengthy, of such occupation in breach of the provisions of the municipality ’ s land-use plan. It is therefore pointless for certain appellants to rely on the schooling of their children, which is not necessarily undermined, or on the irrelevant fact that they hold relocation record books ( carnets de circulation ), which do not exempt them from complying with the regulations. It is equally pointless for the appellants to allege bad faith on the part of the municipality or that is has breached its statutory obligations under the Besson Act. It transpires from a letter from the prefecture of the Val d ’ Oise dated 18 May 2004 that the municipality has fulfilled its obligations under the Law of 5 July 2000 concerning travellers, who are considered to be nomadic and not sedentarised, which is not the case for the appellants, who have vigorously asserted their sedentarisation and emphasised the length of their occupation ... ” 29. The Court of Appeal further confirmed the rejection of the judicial mediation that had been sought, on the ground that it did not appear to be the appropriate response “ to a resolution of the dispute through which the municipality strives to ensure compliance by and for all its inhabitants with laws and regulations”. Lastly, it dismissed the claim for damages submitted by the municipality and ordered the appellants to pay the sum of EUR 50 each in respect of the costs of the appeal proceedings. The applicants stated that after that judgment had been delivered they received daily visits from an official of the municipality who, referring to the coercive fine, urged them to leave the site. ( iii) Proceedings before the Court of Cassation 30. The applicants, in their own names and on behalf of their minor children, together with the applicant association, applied for legal aid from the legal aid board at the Court of Cassation so that they could lodge an appeal on points of law against the judgment of 13 October 2005. 31. On 4 and 5 July 2006 the legal aid board issued a series of decisions dismissing their applications on the ground that no ground of appeal on points of law could be raised against the impugned decision within the meaning of section 7 of the Law of 10 July 1991. In a series of identically worded decisions of 23 November 2006, the judge delegated by the President of the Court of Cassation dismissed their appeals against those decisions ... 32. On 16 January 2007 the applicants filed a declaration with the Court of Cassation ’ s Registry in which they withdrew their appeals on points of law. A decision of 7 September 2007 took note of their withdrawal. 2. Undertaking of an urban and social study 33. Following the Court of Appeal ’ s judgment, the authorities decided, in the context of the département -level accommodation action plan for persons in need (see paragraph 11 above) to undertake an urban and social study ( maîtrise d ’ œuvre urbaine et sociale, “ MOUS ” ) concerning all the families involved in the judicial proceedings, in order to determine their individual situations and assess the options for finding alternative accommodation. 34. Under an agreement with the prefect of the Val d ’ Oise dated 20 February 2006, the National Workers ’ Housing Association ( Société Nationale de Construction de Logements pour les Travailleurs, “ SONACOTRA ” ) was commissioned to carry out a social study concerning all the families in question, in particular to assess their needs in terms of relocation. The study, to be completed within three months, was to provide information for each family on the situation of the land with regard to planning regulations, the current living conditions, the degree of sedentarisation, the family structure and the social situation of the household. The study was also to indicate the relocation arrangements sought by each family ( sedentary housing, mobile-home accommodation or a combination ), the localities where they wished to be rehoused and their desired status ( tenant or owner ). The agreement established the composition of the MOUS steering committee and that of the select steering committee, and indicated that this mission would be fully financed by the State. 35. The findings of the study were presented by the SONACOTRA to the steering committee on 6 June 2006. At a meeting of 17 November 2006 between the select steering committee and the applicant association, held for the presentation to the latter of the results of the social study, the committee agreed that the families who had in the meantime left Bois du Trou-Poulet would be included in the social study. The representatives of those families were received on 16 January 2007 by the select steering committee and it was agreed that they would be interviewed by the SONACOTRA on 30 January, 1, 2 or 5 February 2007. A supplement to the MOUS agreement was drawn up on 29 January 2007 to provide for an additional social study concerning those families, the cost of which was to be covered in full by the State. Lastly, at the request of the applicant association, one last family which had not been interview in the context of the additional social study was included in the MOUS. 36. The social studies revealed the following information. Out of the thirty-two households interviewed by the SONACOTRA, the wishes for relocation were divided as follows : - One household had moved outside the département at the end of the 2005-2006 school year. - One household had been rehoused by the municipality in social housing of the low-rent type. - Three households (not applicants ) had received proposals from the municipality for relocation to family plots on which facilities were being installed ( see paragraph 13 above). - Five households ( all applicants ) wanted social housing of the low-rent type. - Twenty-one households ( of which fourteen are applicants ) wanted to be relocated to a mixed site (buildings and caravans). - One household occupying social housing in Angers wished to be rehoused in low-rent housing in the Angers area. - Only one household among the applicants, that of Vanessa Ricono, could not be interviewed during the social study. 37. On 12 November 2007 a new MOUS agreement was signed for a period of eight months for the relocation of five households which had opted for social housing of the low-rent type. The agreement entrusted the SONACOTRA, which had in the meantime become ADOMA, with the responsibility of providing relocation support for those families (information, assistance with compiling applications, introduction of support mechanisms, and follow-up of relocation in practical terms ). The expenses of the MOUS were covered at 100% by the State. 3. Work on the “11th Avenue ” 38. In the meantime, in October 2004, construction work on a dual carriageway ( known as the “11th Avenue ” ) began in close proximity to the applicants ’ homes and lasted for over a year. The lawyer for some of the applicants and the applicant association ’ s representative for the Val d ’ Oise sent a number of letters between November 2004 and July 2005 to the mayor of Herblay, to the prefect and to the president of the département council, drawing their attention to the risks caused to the applicants and their children by the construction work. In a number of letters, particularly in April and July 2005, the deputy director general for highway management in the département listed the various safety measures that had been taken under the supervision of a coordinating company (signs, fences, barriers, manhole covers, etc.) and stressed that despite those precautions, the site installations and signs had frequently been the target of vandalism and theft. 4. Subsequent events ( a) The applicants ’ situation 39. At the time of the adoption of the present judgment, the municipality has not enforced the judgment of 13 October 2005. However, the coercive fine, for which no settlement date has been fixed, continues to run in respect of the applicants who have remained at Bois du Trou-Poulet. 40. The applicants can be divided into three groups : ( i) Families rehoused in social housing Four families were relocated in social housing between March and July 2008 further to the MOUS agreement of 12 November 2007 ( see paragraph 37 above) : Solange Lefèvre, Catherine Lefèvre and her three children, Sandrine Plumerez and her five children, and Sabrina Lefèvre, her partner (not an applicant ) and her three children. ( ii) Families remaining in Herblay or having returned there A number of families remained at Bois du Trou-Poulet or have returned there : - Martine Payen, also concerned by the MOUS, refused two offers of social housing ( in particular because of the amount of the rent ) and still lives at Bois du Trou-Poulet on land belonging to her. - Michèle Perioche and Germain Guiton remained on their rented land. - Laetitia Winterstein remained with her partner (not an applicant ) and their five children, on land belonging to her grandmother. - Steeve Lefèvre and Graziella Avisse and their child have returned to Bois du Trou-Poulet after joining their aunt on an encampment area in Avranches; according to their lawyer, they received an eviction order after their return subject to a coercive fine of 300 EUR per day. - Rosita Ricono left Bois du Trou-Poulet and went to live in a hotel; she is now living on a friend ’ s land in Herblay. ( iii) Families who have left the region Lastly, a number of families have left the region: - Pierre Mouche left in May 2005 after undergoing a serious operation ( according to his lawyer this was due to dust from the “11th Avenue ” construction work ). He wandered from place to place with his children, then on his own for four years, between Les Mureaux and Saint Ouen l ’ Aumône. In 2007 he refused social housing, in particular on account of his inability to live in such housing and his wish to settle on a family plot. He is currently living on a shopping centre carpark in Épône, next to his son Franck Mouche who gives him the assistance required by his state of health. - Gypsy Debarre and Paul Mouche, another son of Pierre Mouche, also left with him in 2005 and wandered from place to place with their six children, who were thus unable to attend school on a regular basis; they are currently separated. Gypsy Debarre is living on the Buchelay encampment area, near Mantes-la Jolie, with four of her children. In April 2009 she refused social housing that was offered to her, in particular because of her inability to pay the rent. - Sophie Clairsin and Thierry Lefèvre, who left in January 2006, lived on encampment areas in Avranches and Saint Hilaire. After those areas were closed for work, in August 2008 Sophie Clairsin bought a plot of non-buildable land on which she lives with her three children. According to their lawyer, the municipality of Saints has notified them of their obligation to leave the land and has brought proceedings against Sophie Clairsin in her capacity as owner. - Patrick Lefèvre and Sylviane Huygue-Bessin and their seven children, together with Catherine Herbrecht and her three children, who also left in January 2006, lived on sites at Avranches and Saint Hilaire until they closed; they then returned to Bois du Trou-Poulet, which the municipality asked them to leave within 48 hours. They are now accommodated on Sophie Clairsin ’ s land. - Philippe Lefèvre lives with his partner ( who is not an applicant ) in Mayenne, with the parents of the latter. - Mario Guiton and Stella Huet live with their three children near the parents of the latter in Normandy, and they return to Herblay for short stays. - Jessy Winterstein left Bois du Trou-Poulet with her two children and her current address is unknown. - Vanessa Ricono and her partner (who is not an applicant) also left with their child and their current address is unknown. 41. Those of the applicants who have left explained that, as soon as they left Bois du Trou - Poulet, the municipality had had trenches dug on the land to prevent them from returning and had demolished their cabins; they were unable to recover the personal belongings that they had left behind, as they had been destroyed or stolen. ( b) Applications under the “DALO Act” ( Law on the enforceable right to housing ) 42. A number of applicants (Michelle Périoche, Germain Guiton, Mario Guiton and Stella Huet, Laetitia Winterstein, Catherine Herbrecht, Sylviane Huygue-Bessin and Patrick Lefèvre, Gypsy Debarre and Paul Mouche, Graziella Avisse and Steeve Lefèvre, Rosita Ricono) filed applications in 2008 and 2009 (2010 for Rosita Ricono) for social housing pursuant to the Law of 2007 on the enforceable right to housing ( the “ DALO Act”, ... ), stipulating that they wanted family plots. Their applications were denied by the mediation board ( except for that of Gypsy Debarre), on the ground that they were “not eligible for relief under the DALO Act”. The Administrative Court dismissed their appeals against those decisions. ( c) Resolution of the HALDE dated 22 February 2010 43. On 14 February 2006 the National Association of Catholic Travellers ( Association nationale des Gens du Voyage catholiques, ANGVC) complained to the High Authority for the combat against Discriminations and the promotion of Equality ( Haute Autorité de Lutte contre les Discriminations et pour l ’ Ėgalité, the “ HALDE ” ) concerning the ban on travellers ’ camps throughout the municipality of Herblay, pursuant to a municipal by-law of 17 January 2005 ( see paragraph 15 above ). 44. In a resolution of 22 February 2010, after, in particular, looking at the Court ’ s case-law ( judgments in Chapman v. the United Kingdom [GC], no. 27238/95, ECHR 2001 ‑ I, and Connors, cited above ), the HALDE took the view that the combined effect of the département -level travellers ’ reception programme and the municipal by-law, two texts of secondary legislation, had the effect of totally overriding the application of a statute ( the Besson Act of 5 July 2000) whose aim was to protect travellers, and thus interfered with their rights. The HALDE thus concluded that the exemption granted to the municipality of Herblay by the département -level programme was not compliant with the above-mentioned Law of 5 July 2000 and recommended that the prefect should review its provisions. It further recommended that the mayor of Herblay should rescind the by-law and suspend any eviction measures taken on the sole basis of that instrument, and requested to be informed within three-months of the action taken in accordance with its resolution. ( d) Resolution of the municipal council of Herblay dated 13 September 2012 45. In an interview given to the newspaper Le Parisien on 13 December 2010, the mayor of Herblay stated that the travellers ’ encampment area prescribed by the département -level programme would be created on the land that had been set aside for family plots, as the municipality could not undertake both actions. 46. The new département -level travellers ’ reception programme for the Val d ’ Oise, approved on 28 March 2011, provides for the creation in Herblay of an encampment area for 25 nomadic caravans. 47. In a resolution of 13 September 2012 the municipal council of Herblay unanimously adopted a simplified revision of the local planning plan ( plan local d ’ urbanisme, PLU) for the purpose of creating the encampment area. ... ... | This case concerned eviction proceedings brought against a number of traveller families who had been living in the same place for many years. The domestic courts issued orders for the families’ eviction, on pain of penalty for non-compliance. Although the orders were not enforced, many of the families moved out. Only four families were provided with alternative accommodation in social housing; the so-called family sites where the remaining families were to be accommodated were not created. The applicants complained in particular that the order requiring them to vacate the land they had occupied for many years amounted to a violation of their right to respect for their private and family lives and their homes. |
90 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE 10. The applicants are German nationals who were born in 1966 and 1968 respectively and live at Badbergen ( Germany ). They are married and have two daughters: Corinna, who was born on 11 September 1991, and Nicola, who was born on 27 February 1993. A. Background to the case 11. The applicants and their two daughters had lived since the girls' birth with Mr Kutzner's parents and his unmarried brother on an old farm. Mr Kutzner works on a poultry farm. Mrs Kutzner used to work in a factory, but since losing her job has stayed at home to look after the children and do the housework. The applicants had attended a special school for people with learning difficulties ( Sonderschule fûr Lernbehinderte ). 12. Owing to their late physical and, above all, mental development, the girls underwent a series of medical examinations. On the advice of one of the doctors and at the applicants' request, they received educational assistance and support from a very early age. Thus, from 1994 Corinna, the elder daughter, received educational assistance ( Frühförderung ), while from 1995 and 1996 respectively, both girls attended a day-nursery school for children with special needs ( Heilpädagogischer Kindergarten ). 13. Between October 1995 and May 1996, Ms Klose, a social worker ( sozialpädagogische Familienhilfe ) visited the applicants' family at home, officially for ten hours a week. The applicants say that she actually spent only three hours there, as the time she spent travelling had to be taken into account. Relations between her and the applicants rapidly deteriorated, which the applicants say resulted in her preparing a very negative report on them. 14. Ms Klose's report to the Osnabrück District Youth Office ( Kreisjugendamt ) did indeed emphasise negative points: the applicants' intellectual shortcomings, conflictual relations between the family members and the contempt that, initially at least, she had been shown by the family. 15. Following that report the District Youth Office made an application on 13 September 1996 to the Bersenbrück Guardianship Court ( Vormundschaftsgericht ) for an order withdrawing the applicants' parental responsibility for their two children. B. The proceedings withdrawing the applicants' parental responsibility 1. Proceedings in the Bersenbrück Guardianship Court 16. On 18 September 1996 the Bersenbrück Guardianship Court appointed Mr Waschke -Peter, a psychologist, to give expert evidence. He delivered his report on 20 November 1996. 17. On 12 February 1997, after hearing evidence from the applicants and the grandparents, the Guardianship Court made an interlocutory order ( einstweilige Anordnung ) withdrawing the applicants' rights to decide where their children should live ( Aufenthaltsbestimmungsrecht ) or to take decisions regarding the children's health ( Recht zur Bestimmung über ärztliche Maßnahmen ), notably on the ground that “[the applicants did] not have the intellectual capacity required to bring up their children properly” (“ die Kindeseltern sind intellektuell nicht in der Lage, ihre Kinder ordnungsgemäss zu erziehen ”). 18. From February to July 1997 the girls were placed in the care of the assessment team ( Clearingstelle ) of a private association at Meppen ( Verein für familienorientierte Sozialpädagogik ), which was part of the Society for Family Education ( Gesellschaft für familienorientierte Sozialpädagogik ). 19. In a report dated 18 and 24 April 1997, the chairwoman of the executive board of the society, Ms Backhaus, also requested that the applicants' parental responsibility be withdrawn on the ground that, while the children's IQ was expected to decrease, a new home would afford them a chance to enjoy a relationship that would stimulate the development of their social skills and intelligence ( eine Verflachung des IQ's ist vorprogrammiert, eine Chance haben die Kinder durch eine neue Beelterung, in der über die Beziehung neue Impulse für die Sozial - und Intelligenzentwicklung gesetzt werden ). 20. On 27 May 1997, after hearing further evidence from the applicants and the grandparents, the Guardianship Court withdrew the applicants' parental rights ( Sorgerecht ) over their two children. It relied notably on the finding in the psychologist's report that the applicants were not fit to bring up their children, not through any fault of their own ( unverschuldet erziehungsunfähig ), but because they did not possess the requisite intellectual capacity. The Guardianship Court found that the applicants lacked the necessary awareness to answer their children's needs. Moreover, they were opposed to receiving any support from social services and, far from being genuine, the consent they had now given to the measures that had been taken was merely a reaction to the pressure they had felt as a result of the proceedings. The Guardianship Court added that the children's development was so retarded that it could not be corrected by the grandparents or support from social services. Only a foster home – and in Corinna's case this would have to be a professional foster home ( professionelle Pflegefamilie ) – could help the two children, as any less radical measures would be inadequate. 21. On 15 July 1997 the two girls were placed with separate, unidentified ( IncognitoPflege ) foster parents ( Pflegefamilien ) on the register held by the Society for Family Education, which had produced a report on 18 and 24 April 1997 requesting that the applicants' parental responsibility for their children be withdrawn. 22. In letters of 24 January, 23 June and 2 July 1997 the applicants' family doctors said that they considered that the children should be returned to the applicants' care. 2. Proceedings in the Osnabrück Regional Court 23. In June 1997 the applicants appealed to the Osnabrück Regional Court ( Landgericht ) against the Guardianship Court 's decision of 27 May 1997. 24. From 2 September to 25 November 1997 Mrs Kutzner attended a course to qualify as a childminder ( Qualifizierungskurs für Tagesmütter ); she completed the course and received a certificate. 25. On 29 August 1997 an expert in psychology from the German Association for the Protection of Children ( Deutscher Kinderschutzbund ), a private organisation from which the applicants had sought help, also expressed the view that the children should be returned to their family and receive extra educational support from social services. 26. After these views had been expressed, the Regional Court appointed Mr Trennheuser as a second expert witness in psychology on 9 October 1997. He delivered his report on 18 December 1997. The Regional Court also heard evidence from the applicants, the grandparents, the relevant authority and the expert witness. 27. By a decision of 29 January 1998 the Regional Court dismissed the applicants' appeal on the ground that the relevant provisions of the Civil Code (Articles 1666 and 1666a – see “Relevant domestic law” below) governing the protection of children's interests were satisfied. The Regional Court referred to the two reports by the experts in psychology. According to the first report, which had been lodged with the Bersenbrück Guardianship Court on 20 November 1996, the applicants were incapable of bringing up their children because of their own deficiencies and because they felt out of their depth. Bringing in persons from outside the family circle to assist would merely exacerbate existing tensions between the parents and their daughters and the applicants' sense of insecurity. The family was dominated by the grandparents and the applicants were unable to project an image of authority for their children. Moreover, the grandparents, who were incapable of offering support to their own children (the applicants), were no more capable of remedying the intellectual deficiencies presented by their grandchildren. According to the second expert report – the one delivered on 18 December 1997 – the girls were approximately one year behind in their general development, a factor that was discernible in particular from their speech, which consisted of stammering. Had they not benefited from years of support from the educational and social services, they would probably have ended up in a special school for the mentally disabled and would have been unable to develop normally or lead a normal adult life. The applicants were incapable of helping their daughters to develop their personalities, as they were ill-equipped to understand them or to treat them in an appropriate manner. Scientific studies had shown that parents with deficiencies of that type prevented the development of emotional ties between them and their children. In particular, the knowledge and skills acquired at school were in danger of being stifled in the family environment. The applicants had done no more than to tend to the children's basic needs. There was a risk that in the future the parents would become increasingly aggressive towards their children. Regard being had to all those considerations, separating the children from the family was the only way of eliminating all danger to the children's welfare ( Gefährdung des Kindeswohls ). The Regional Court noted that the expert witnesses had reached the same conclusion following a thorough analysis. The second expert witness had had due regard to the fact that the applicants had contacted the German Association for the Protection of Children and that Mrs Kutzner had attended a childminding course. However, those factors were not sufficient to enable the Regional Court to rule out all risk of the children's development being harmed. 3. Proceedings in the Oldenburg Court of Appeal 28. On 20 March 1998 the Oldenburg Court of Appeal ( Oberlandesgericht ) dismissed the applicants' appeal, holding that there had been no breach of the law. The courts concerned had heard representations from the parties, relied on reports by two expert witnesses and had taken into account the educational assistance measures that had already been implemented, the expert psychological report lodged by the German Association for the Protection of Children on behalf of the applicants and the opinion of the family doctors. 4. Proceedings in the Federal Constitutional Court 29. On 26 May 1998 a three-member committee of the Federal Constitutional Court ( Bundesverfassungsgericht ) dismissed an appeal by the applicants. 5. Expert evidence furnished on behalf of the applicants at the request of the Association for the Protection of the Rights of the Child 30. On 29 May 1998 Mr Riedl, a professor of educational sciences and Director of the Educational Sciences Institute at the University of Schwäbisch-Gmünd, lodged a report as an expert witness appointed on behalf of the applicants in which he concluded that the children's welfare was not in danger and that the applicants were entirely fit to bring up their children, both emotionally and intellectually. He said in particular that the family provided a successful example of cohabitation between three generations that was desired, planned and well-organised in satisfactory material conditions and in circumstances that permitted both individual and social fulfilment (“ die Familie Kutzner bietet somit ein geglücktes Beispiel für das gewollte, geplante und wohlorganisierte Zusammenleben dreier Generationen in geordneten wirtschaftlichen Verhältnissen und unter positiven individuellen Bedingungen ”). He added that additional measures of educational support could largely compensate for the ground the children would have to make up at school. 31. On 17 November 1999, also at the request of that association, Mr Giese, a professor of law at the Tübingen Institute for the Assessment of Physical and Mental Damage ( Institut für Medizinschaden ), produced a further expert report on behalf of the applicants, in which he concluded that the procedure followed by the German courts in the instant case had contravened Articles 6 and 8 of the Convention. C. Restrictions on the applicants' visiting rights 32. As the children had been placed in unidentified foster homes, the applicants were unable to see them for the first six months. 33. They then made an application to the Osnabrück Regional Court, which on 4 December 1997 granted them visiting rights of one hour a month despite opposition from the Youth Office. 34. Contrary to what had been ordered by the Guardianship Court, visits were conducted in the presence of eight representatives from various social services departments and associations. Subsequently, their number decreased, but the Youth Office insisted on visits being accompanied ( begleitetes Besuchsrecht ). 35. Between July and November 1999 the applicants made various attempts to obtain permission to see their children at Christmas or at the start of their eldest daughter's school year, but the Youth Office refused. The applicants applied to the Bersenbrück Guardianship Court and were granted permission to see their eldest daughter at the beginning of the school year. 36. On 8 December 1999 the applicants made a fresh application to the Guardianship Court seeking the right to visit their children for two hours at Christmas. 37. On 21 December 1999 the Guardianship Court dismissed their application. It sought a further report from another psychologist, Ms Sperschneider, in order to establish to what extent and to whom further visiting rights should be granted. 38. Additional information supplied by the parties after the Court had delivered its admissibility decision (see paragraph 8 above) indicates that in her report of 12 May 2000 Ms Sperschneider recommended that the applicants' visiting rights should be increased to two hours a month and that the grandparents should also be permitted to take part in visits once every two months. 39. By an order of 9 October 2000 the Guardianship Court requested the parties to indicate whether they accepted the psychologist's proposal. 40. In a letter of 2 November 2000 the Youth Office said that the applicants would be granted visiting rights in accordance with the arrangements proposed by the psychologist. 41. In a letter of 14 March 2001 the applicants asked the Guardianship Court to issue a decision on the merits. 42. In a decision of 16 March 2001 the Guardianship Court took formal note that an agreement had been reached between the parties concerning the applicants' rights to visit their children and held that it was unnecessary to determine the merits of the case. D. The applicants' request for the appointment of a new guardian 43. In a letter of 29 January 2001 the applicants asked Mr Seifert, who as the Osnabrück Youth Office representative acted as the children's guardian, to meet them in order to discuss various issues such as the children's physical and psychological development, arrangements for visiting rights, and a christening ceremony that had been arranged in their home village. 44. Mr Seifert declined such a meeting in a letter of 22 February 2001, saying that the applicants could observe their children's progress for themselves during visits. 45. On 4 March 2001 the applicants wrote to the Bersenbrück Guardianship Court requesting it to terminate the Osnabrück Youth Office's appointment as guardian and to name an independent expert in its place. 46. In a letter of 26 April 2001 Mr Seifert rejected the criticism directed at him by the applicants. 47. In a reply of 17 May 2001 the applicants said that the Youth Office had systematically sought to separate them from their children for good, whereas the opinion of the majority of the experts had been that separation could only be temporary and that the children needed their family of origin. They added that if the experts considered that contact of one or two hours a month under strict supervision was sufficient, then the expert evidence was of little value. Lastly, Ms Sperschneider had spent in all only two hours with the applicants and had shown no interest in what they really thought. 48. In a letter of 12 July 2001 a court clerk ( Rechtspfleger ) replied to the applicants, informing them that the Guardianship Court had rejected their application. | The applicants, a married couple, complained that the withdrawal of their parental authority in respect of their daughters and the placement of the latter in foster families, mainly on the grounds that the parents did not have the intellectual capacity to bring up their children, had breached their right to respect for their family life. |
305 | Prevention of terrorism | THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969. 6. At the relevant time she was detained in Rennes Prison. She has been released on licence since 1 March 2016. 7. On 24 January 2003 the applicant was placed in pre-trial detention in the context of several sets of criminal proceedings. 8. She was subsequently convicted on three occasions, primarily for participating in a criminal conspiracy for the preparation of an act of terrorism, receipt of stolen goods obtained through extortion as part of a criminal conspiracy, possession and transport of weapons, explosive substances or devices, and the possession and use of forged administrative documents in connection with a terrorist enterprise. 9. She was sentenced on 26 April 2006 by the Paris Criminal Court to eight years ’ imprisonment; on 29 November 2006 she was sentenced by the Paris special Assize Court to a seventeen-year prison term, for two-thirds of which she would not be eligible for any form of release; and on 17 December 2008 the same assize court imposed a seventeen-year term, to run concurrently with the previous one. 10. By a judgment of 21 June 2011, the President of the Investigation Division of the Paris Court of Appeal ordered that the eight-year prison sentence be served, in part and for a period of five years, concurrently with the seventeen-year prison sentence imposed by the assize court on 29 November 2006. 11. On 21 January 2014 the applicant ’ s lawyer applied to the vice ‑ president at the Paris tribunal de grande instance responsible for post-sentencing issues and with jurisdiction for terrorism cases, requesting authorisation for the applicant to leave the prison under escort, so that she could pay her last respects to her father, who had died earlier that day in a Bayonne hospital. He pointed out that, in view of the latter ’ s health problems, he had been unable to visit the applicant since her transfer in 2009 to Roanne, and subsequently to Rennes. He added that the applicant had been very attached to her father and considered it essential to be able to honour him one last time, alongside her mother, sister, daughter and brother. 12. By a letter of the same date, the lawyer specified that the applicant was suffering from Crohn ’ s disease, a chronic inflammatory intestinal illness, which required frequent visits to the lavatory. He attached a document from the firm of undertakers, stating that the deceased ’ s remains would be placed in a coffin on 22 January and the funeral held on Monday 27 January 2014. 13. On 22 January 2014 the public prosecutor at the Paris tribunal de grande instance advised against granting the applicant ’ s request. He stated, in particular: “... the [applicant ’ s] numerous convictions do not argue in favour of granting such authorisation to leave prison under escort, which would necessarily have to be reinforced. Furthermore, given the family environment, [specifically] the applicant ’ s brother and sister, who frequent Basque circles, an attempted escape cannot be ruled out, in spite of the circumstances at hand, namely the father ’ s death.” 14. By an order of the same date, the vice-president responsible for post-sentencing issues and with jurisdiction for terrorism cases refused the applicant ’ s request for escorted leave of absence. He held as follows: “... although the death of Mr J.X.G., [the applicant ’ s] father, on 21 January 2014 is an exceptional ground that could justify a measure authorising her to leave the prison under escort within the meaning of Article 723-6 of the Code of Criminal Procedure, this request must also be assessed in the light, firstly, of the given individual ’ s personality and, secondly, of the likelihood of an attempt to escape. In this connection, it should be noted that [the applicant], an active member of ETA until her arrest in 2003, ha[d] been convicted on several occasions of numerous offences falling within the scope of Article 706-16 of the Code of Criminal Procedure, governing acts of terrorism; those convictions demonstrate a clear and long-standing foothold in the Basque movement and terrorist actions. Furthermore, [the applicant] has always refused to submit to psychiatric or psychological tests in the context of the proceedings against her, so that the judge responsible for the execution of sentences currently has no tangible information about her personality and the potential danger posed by her, even if it is well-established that her conduct in prison has been satisfactory. Further, having regard to the fact that the release date is still distant (17 June 2019), [the applicant ’ s] membership of a particularly well-organised terrorist movement and the potential for outside support in this connection, one cannot rule out the risk of attempted escape in the event of authorisation for escorted prison leave to travel to the Bayonne region. Lastly, the geographical distance between Rennes Prison and Bayonne and the chronic illness from which [the applicant] suffers (Crohn ’ s disease, requiring very regular visits to the lavatory, as per the medical certificate drawn up by Dr. L. B.) give rise to particularly challenging practical issues, including that of sufficient security, when it comes to escorting the prisoner to pay her respects to her father. Moreover, the time constraints are very tight. ...” 15. On 23 January 2014 the applicant appealed against this decision. She argued that the acts on which her convictions were based had been committed during the period she was in hiding; in addition, it had been decided that her two seventeen-year prison terms were to run concurrently and that five years of her eight-year sentence were to run concurrently with the other terms. She added that she had been imprisoned for eleven years and that her conduct in prison had been satisfactory; there had been no incident justifying fears that she would try to escape; in addition, she would be eligible for conditional release on 24 May 2014, which also undermined the likelihood of the alleged risk of absconding. She gave the example of a fellow prisoner in Rennes, who had been transferred to Saint-Jean-de-Luz in May 2013 in order to be able to attend her son ’ s funeral. She was asking only to be allowed to pay her respects before her father ’ s coffin in the funeral home and to embrace her mother and her daughter. She noted that her father ’ s cremation had been postponed to 27 January 2014 in order to give the prison authorities time to organise her trip. The applicant further emphasised that her health problems had never presented an obstacle to her transfers from the Paris region to Bordeaux, from Bordeaux to Roanne and from Roanne to Rennes; she added that she had undertaken to ensure that her health problems would not complicate her absence from prison, and had decided not to eat during the journey, which showed how important it was for her to be with her family during this time of grief. 16. By an order of 24 January 2014, a judge at the post-sentencing division of the Court of Appeal upheld the order of 22 January 2014. She held, in particular, as follows: “Notwithstanding [the applicant ’ s] conviction for acts of terrorism and her membership of the separatist organisation ETA, which she continues to assert, the requested authorisation is perfectly justified on a human level at a particularly painful time for her, since [the applicant] has been unable to see her father since 2009 on account of her transfer to Rennes Prison and his illness, and legitimately wishes to see his body for one last time, with her family, when the coffin is removed prior to the cremation ceremony. However, a threat to public order as a result of the return, in emotionally difficult circumstances, of a convicted Basque activist to the Basque Country, where she enjoys considerable support, cannot be ruled out, even if the visit is for only a few hours. This risk implies, as a matter of necessity, particularly vigilant surveillance on the part of the authorities responsible for escorting her and for ensuring the smooth conduct of the journey, including organising the corresponding security arrangements, especially as a return journey in a single day is impossible, given the distances involved; a departure would have to be organised for the Sunday with an overnight stay in Gradignan Prison, so that [the applicant] could be present in Bayonne before 11 a.m., the time scheduled for the removal of the coffin. However, after consultation with the competent gendarmerie units, which were contacted by the court as soon as it received the request on Friday 24 January, it appears that it will be physically impossible to organise this kind of escort at such short notice, having regard to the material and human constraints. In those circumstances, the court can only take note of this impossibility and uphold the previous decision.” 17. The applicant applied for legal aid so that she could lodge an appeal on points of law against that decision. 18. By a decision of 27 March 2014, the legal aid board at the Court of Cassation refused her application, stating that no arguable ground of appeal on points of law could be made out against the impugned decision. 19. The applicant lodged an appeal against that decision. She relied on Article 8 of the Convention, emphasising that the president of the Post-sentencing Division had held that her request was perfectly justified on a human level. She submitted that mere material considerations were being used to justify the breach of her fundamental right. She challenged the arguments used, reiterating that she was not a prisoner subject to particular surveillance and thus did not require a reinforced escort, and that she would be eligible to apply for release on licence in four months. Lastly, she added that she could not be held responsible for the fact that she was being held in a prison hundreds of kilometres from her home, which was also the reason her father had been unable to visit her. 20. By an order of 29 April 2014 the judge delegated by the President of the Court of Cassation dismissed the appeal. He pointed out that the Court of Cassation ’ s review of a case did not concern the lower courts ’ assessment of the facts and evidence, and that it did not appear, having regard to the documents in the file, that a serious ground of cassation based on a failure in the contested decision to comply with the applicable legal rules could be made out. | This case concerned the refusal to allow the applicant, an active member of ETA until her arrest in 2003 and who was imprisoned in Rennes for terrorist offences, to travel to a funeral parlour in Bayonne to pay her last respects to her deceased father. |
892 | Private persons | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant company is the owner and publisher of the daily newspaper Kurier. A. The background of the case 6. In 1999 E.R. and U.W., the parents of Christian W., dissolved their common household and concluded a provisional agreement on the custody of Christian under which sole custody was granted to E.R., while his brother stayed with U.W. On 13 February 2001 U.W. asked for custody to be withdrawn from E.R. and transferred to him. 7. On 22 February 2001 E.R. and U.W. agreed that pending the outcome of an expert report custody be provisionally transferred to U.W. ( vorläufige Obsorge ) and that for the time being Christian should live with U.W., his father. 8. It appears that subsequently U.W. hindered contact between Christian and E.R. and, in June 2002, moved to Sweden. Thereupon, by an interlocutory decision ( einstweilige Verfügung ) of 26 July 2002, custody of Christian was transferred back to E.R. 9. U.W. was ordered to hand Christian over to E.R. immediately or to take him back to Austria before 5 August 2002. That order was confirmed on appeal on 12 September 2002 and became final. 10. Thereupon E.R. travelled to Sweden to have that decision enforced. U.W. proposed to E.R. that they enter into an agreement on custody of Christian, and E.R. also agreed to staying in Sweden. However, no such agreement was finally reached. After E.R. had settled in Sweden and found employment there, U.W., together with Christian, left Sweden for Austria. 11. On 4 November 2002, pending the outcome of the custody proceedings, custody was temporarily transferred to the Salzburg Youth Welfare Office. On 23 December 2003 the court dismissed U.W. ’ s request for custody to be withdrawn from E.R. and transferred to him. The decision was declared immediately enforceable. 12. Subsequently, various attempts to enforce that decision were undertaken. The Austrian newspapers reported on these events because U.W. kept them regularly informed and sought publicity. 13. The first attempt at enforcement, on 23 December 2003, failed because U.W. and Christian went into hiding. U.W. had informed the media of this step in advance. Some time later they returned. In order to enforce the custody decision the competent court scheduled a hearing for 15 January 2004 in the course of which Christian was to be handed over to E.R. U.W. failed to appear at the hearing. 14. Thereupon the judge ordered that Christian be brought before the court by force ( zwangsweise Vorführung ). 15. When that decision had to be enforced by court officers Christian barricaded himself in his elementary school and, since the police officers who intervened decided not to use physical force on the premises of the school, this attempt also failed. These events were also widely covered by the media because U.W. had informed them in advance. 16. After further unsuccessful attempts the rural police ( Gendarmerie ) were informed on 26 January 2004 that Christian was at his father ’ s house. Court officers sent to the house noted, however, that Christian was not in the house but, together with a babysitter, in a car in front of it. The officers tried to take hold of Christian but he cried and resisted. These scenes were again the subject of widespread media coverage because they were observed and photographed by several journalists, who had been informed and had hurried to the spot. 17. In order to establish whether Christian had suffered injuries during the attempt to enforce the court order, U.W. took him to the Salzburg hospital. On 28 January 2004, by means of a diversion manoeuvre, U.W. and Christian were separated and on the same day Christian was handed over to his mother, E.R., on the premises of the hospital. E.R. and Christian have been living in Sweden since that time. This final phase of the events was widely reported on in the media. B. The articles which appeared in Kurier 18. On 29 January 2004 an article was published in the applicant company ’ s newspaper under the title “ Mother flees hospital with Christian ” (“ Mutter flüchtete mit Christian aus Spital ”), which read as follows. “ On Wednesday evening the child-care proceedings concerning 8-year-old Christian from Salzburg took a very surprising turn: Whilst father, mother and son where still talking together over the sick bed in the afternoon, the mother suddenly snatched the boy ..., left the hospital via an underground passage, took a car that had been left at her disposal and disappeared. “She is being taken care of on neutral ground and the boy is getting psychological support” said Hadmar Hufnagel from the Salzburg District Court. The father suspects the whole affair of being rigged. At lunch-time 33-year-old mother E.R. had arrived at the hospital, hidden from the public. “The boy was not afraid of his mother” says children ’ s advocate Andrea Holz-Dahrenstaedt. Whereas the father claims that Christian clung to him and tried to defend himself against his mother. PLANNED After talks lasting an hour, the bombshell : E.R. snatched her son when he was left unattended for a moment, and fled the hospital. “The operation was authorised by the family judge” explained Hufnagel. Beforehand the older son, Christoffer, had been taken to a psychologist and afterwards to the partner of the children ’ s father. U.W. suspects the operation of being a conspiracy: “It was planned. They were only waiting for a good opportunity.” He claims to have heard his son crying and then there had been a sudden silence. The father had sat for minutes next to Christian ’ s empty sickbed. Friends and relatives of the father have announced a demonstration for today in front of the justice buildings in Salzburg. The whole country is now shocked about this family dispute. It was triggered by an attempt to take Christian away from his father on Monday. Two bailiffs tried to pull the boy into a car. However, he defended himself, screamed, bit and clung to the car. Since this incident Christian has remained in the children ’ s hospital. Opinions in this dispute are very divergent. The Salzburg District Court tries to justify the conduct of the officers. “In this case the Court has acted in the interest of the child”, explained the President of the Regional Court, Walter Grafinger. The bailiffs had been ordered to seize the child without bodily harming him. This order was carried out accordingly. However, the Linz Court of Appeal has a different view on the matter. ‘ The conduct of the officers was unacceptable and excessive ’, declares press officer Günther Wiensauer. ‘ This was practically ill-treatment of a child ’, said the Vienna child and juvenile advocate Monika Pinterits. SPECIAL TRAINING The president of the Judges ’ Association, Barbara Helige, suggests special training for bailiffs. She is a family judge and has never in her 20-year career seen such a case. Helige does not consider it helpful for a judge to be present when children are taken away from their parents: “This would even reinforce the impression of State intervention.” A report from the Ministry of Justice will be handed over to the disciplinary commission. The Minister of Justice, Dieter Böhmdorfer (FP), announced that an expert commission would be established in order to avoid escalations. And in the future he wants a judge to be present when compulsory measures are carried out. According to the Minister, the Court in Salzburg acted in an appropriate manner; however, the father had breached his obligation of discretion. Disputes in childcare proceedings should not be fought on the backs of the children .” 19. A second article was published in the applicant company ’ s newspaper under the title “ A dispute might now arise about Christian ’ s brother ” ( Nun droht Streit um Christians Bruder ) on 30 January 2004. It read as follows. “After the tumultuous events on Friday the dispute over 8-year-old Christian from Salzburg has for the time being calmed down. According to information from the Court, the mother and the boy are at present accommodated and looked after in municipal housing in Salzburg. However, the future of little Christian, and whether and when he will leave with his mother for Sweden, is still unclear. A tug of war might also take place over the older brother Christoffer: The Youth Welfare Office has custody over him for the time being in view of the current child-care proceedings initiated by the father. An investigation procedure is planned for the summer. U.W. had applied for custody of all three children. In December 2003 his custody applications for Alexander, 11, and Christian were refused. The decision concerning Christoffer had been postponed. Christoffer is for the time being staying with his father. U.W. is, however, still at loss about the fact that his ex-wife fled the hospital with Christian. ‘ I cannot talk about it ’, he stuttered on Thursday, his voice trembling with tears. Eva Weissenbacher, a friend of the family who was present when the father and mother met at the hospital, said: ‘ I saw the mother slap the boy in the face ’. IGNORED The fact that bothered the lady from Salzburg most was that the mother was only focussing on Christian: ‘ She has cold-shouldered Christoffer. I don ’ t know why she is behaving like that and what her goal is. ’ Neither the mother nor her lawyer want to answer Kurier ’ s queries about this incident. Hadmar Hufnagel, Chairman of the Salzburg District Court, considers the ‘ Christian case ’ closed as far as the courts are concerned: ‘ The judicial authorities are no longer involved. It does not concern the judge anymore. It is the parents ’ responsibility to take the next steps. The court has issued a decision and fulfilled its obligations. ’ In the evening friends of the father started demonstrating in front of the Salzburg Regional Court. ‘ Without wanting to get involved in the case in question, we would like to point out that children have a right to be heard and have their wishes and opinions respected ’, says Anita Gerhardter.” 20. Finally, the applicant company published a third article in its newspaper under the title “ The Christian case : ‘ Judicial authorities have to become more sensitive ’ ( Fall Christian: Die Justiz muss sensibler werden ) on 13 February 2004. It read as follows. “A Salzburg judge has given the order to use ‘ force ’. ‘ Appropriate force ’ in order to take a child away from his father and to take him to his mother in Sweden. 8-year old Christian from G. The boy had fought against two bailiffs on 26 January. Alarming pictures show the end of the child-care proceedings. As reported, the results of the investigations of the Linz Court of Appeal are now available. Court of Appeal President Helmut Hubner says: ‘ This case is also a wake-up call for the judicial authorities. We have to become more sensitive. ’ FORCE In his interview with KURIER Hubner defends the judge who ordered the officers, who are bound by his instructions, ‘ to summon the minor with due tact, but without considering his wishes, and if necessary with due force ’. He says: ‘ That is the wording of the law ’. This is not quite true. The word ‘ force ’ is not to be found in the non-contentious act. ‘ Means of coercion ’ are allowed by the law; however, they have to be directed against the parent not respecting the judgment. But Hubner also says: ‘ This matter should never have been dealt with in such a way ’. He wants the officers to be trained how to deal with children and how to talk to them. A disciplinary procedure against the District Court judge is going to be initiated: the bailiffs contacted him four times during that mission, should he have ended it earlier? Judges are discussing the matter. Judge Barbara Helige: ‘ This case brings us to the limits of judicial activities, it is a tightrope walk ’. Means of coercion have to be allowed for at least in cases where severely mistreated children have to be saved from an abusing parent ‘ even when they still love their parents and don ’ t want to be taken away ’. However, Christian was definitely not in such a situation. Linz University professor Astrid Deixler-Hübner (Institute for Civil Law) says that this law will be changed, taking effect from 1 January 2005, and she further states: ‘ The well-being of the child is the top priority. The new ruling stipulates that the judge has to discontinue the execution of his orders when the well-being of the child is in danger ’. President Huber thinks, on the other hand, that this is already the case today. ‘ Even if this is not clearly written in the text of the law, there is such a thing as common sense! ’ He does not only hope that the judicial authorities will act with common sense but the parents as well. They can fight their wars of the roses anywhere, but not on the back of their children. He considers that Christian ’ s development is positive: ‘ He was examined by a psychologist before leaving with his mother for Sweden. The child has calmed down. He was curious about Sweden and he was not unhappy ’. ” 21. All articles were accompanied by photos of Christian. The first article was accompanied by a picture of Christian showing him with a distressed expression, clinging to his brother, and a similar picture accompanied the third article. C. The proceedings under the Media Act 22. With regard to the articles published by the applicant company on 29 and 30 January and 13 February 2004, and the above events, Christian W., represented by his mother, brought proceedings under Section 7 and 8a of the Media Act against the applicant company, seeking damages and publication of the ensuing judgment. He argued that the reporting on him had interfered with the intimate sphere of his life in a manner which was likely to expose and compromise him in public. Moreover, the articles constituted a breach of section 7a of the Media Act, which prohibited reporting on the victim of crime in a manner which made him or her recognisable in public, which was only allowed if the importance of the offence or the persons implicated meant that there was a preponderant interest of the public in the information. Both applications were filed with the Vienna Regional Court for Criminal Affairs ( Landesgericht für Strafsachen Wien ). 23. On 19 October 2004 the Regional Court allowed the action and ordered the applicant company to pay damages in the amount of 20,000 euros (EUR), to publish the judgment in its periodical, and to bear the costs of the proceedings. The court found that the publishing of the above articles containing details of the custody dispute over eight-year old Christian W. had caused the intimate sphere of his personal life to be exposed in a manner likely to compromise him in public, in breach of section 7 of the Media Act. Moreover, the article published on 29 January 2004 had made the full name of Christian W. public and had been accompanied by a photograph of him. Thereby the identity of a person who had been the victim of a criminal offence had been disclosed to a large and not directly informed circle of people without any justification. This was in breach of Section 7a of the Media Act. The Regional Court observed further that all the articles had been accompanied by pictures of Christian W. in which he, with a highly perturbed facial expression, was seen clinging to his brother. 24. The Regional Court accepted that there existed a direct link between the events reported on and the public interest because of the harsh criticism voiced of the conduct of the court officials who had attempted to enforce the custody order. However, the person having custody of Christian had not agreed to the publication and the public interest in the events could have been satisfied without giving the child ’ s full name and publishing pictures of him. 25. On 25 February 2005 the applicant company appealed. Relying on Article 10 of the Convention it argued, inter alia, that the Regional Court had failed to take into account that on the issue of enforcement of custody orders there was an ongoing discussion in which presidents of various courts and the President of the Association of Judges were participating. Moreover, the Federal Minister of Justice had set up a working group of experts to draw up a report on the events of 26 January 2004. The press had been addressed not only by Christian ’ s father but also by representatives of the Federal Ministry of Justice, the courts and the Linz Court of Appeal, which had even held a press conference. In such circumstances it had been necessary to inform the public of the identity of the persons involved, and against the background of the public discussion the custody dispute and the preliminary events leading to the incident on 26 January 2004 had also been of legitimate interest to the public. 26. On 5 April 2005 the plaintiff commented on the appeal. He argued that the applicant company could not rely in its defence on the fact that organs of the judiciary had also commented in public on the events, because they had neither made public the full name of the victim and details from his intimate life nor published photos of him. Had the applicant company acted in the same way, its reporting would have been fully acceptable. 27. On 22 June 2005 the Vienna Court of Appeal partly allowed the appeal. It found that there was no breach of Section 7a of the Media Act, because under that provision a compensation claim only existed if a media outlet had described acts by which someone had become the victim of a crime and if the description violated the victim ’ s protected interests. In the present case, however, it was not the description of a criminal act that had breached Christian ’ s protected interests. It reduced the compensation to EUR 3,00 0 per article, altogether EUR 9,000. 28. The Court of Appeal dismissed the applicant company ’ s criticism that the Regional Court had not taken sufficiently into account that representatives of the judiciary themselves had made public statements. The Regional Court had accepted that there was a direct link between the events reported on and the public interest. However, giving details from the plaintiff ’ s intimate family life, giving his full name, and adding pictures of the plaintiff had transgressed into his intimate sphere as these details had been given merely in order to satisfy the lust for sensation and the curiosity of its readers. 29. Even if there was a link to public life, the media could only report on a person ’ s intimate sphere to the extent necessary for adequately satisfying the need for information relating to those elements which were of relevance to the public interest. Reporting on events within the intimate sphere of a person must therefore be adequate to the occasion and proportional. In the present case it had not been necessary for the purpose of informing the public on alleged shortcomings within the judiciary, and it had not been necessary to expose in such an intense and striking way the severe strain being suffered by the juvenile plaintiff through the insertion of photographs showing his distress and despair, through mentioning his full name, and through setting out the details of his seizure. | The two cases concerned compensation proceedings under the Media Act brought by a mother and child against two publishing companies on account of their newspapers’ reporting on the dispute between the parents over custody of the child. The articles published by the two newspapers revealed the child’s identity and gave details of his family life, and were accompanied by photographs showing him in a state of apparent pain and despair. |
71 | Filiation | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1925 and at the time of the introduction of the application lived in Dublin. A. Background to the case 8. On 20 December 2012 X (who was around 55 years old) instituted an action before the Civil Court (Family Section) requesting the court to declare the applicant to be her biological father and to order this to be reflected on her birth certificate. 9. On 11 February 2013 the Director of the Public Registry (also defendant in the proceedings) requested the court to order that the parties undergo the genetic testing provided for by Article 100A of the Civil Code, and for the applicant to submit his details, which would be required to make the relevant changes to X’s birth certificate if the court had to find in X’s favour. 10. On 11 February 2013 the applicant filed written submissions in reply, denying that he had been involved in the applicant’s conception and raising the plea of exceptio plurium concubentium (defence of several lovers) on the basis that X’s mother had had various partners. 11. On 7 May 2013 X filed her written statement confirmed on oath ( affidavit ), as well as that of her mother. In her affidavit X claimed that she had been born in London of a relationship between her mother (Y.) and the applicant, and that from an early age she had always been told that the applicant was her father. After her sixteenth birthday she had sent a letter to him, which remained unanswered. She claimed that in 1978, learning that the applicant was going to be in Malta, she went to meet him at the airport – on that day she had seen him arrive with his family, and noted the resemblance between herself and one of the applicant’s daughters. On that occasion she had not approached him, but they met some time later before a lawyer. She stated that the applicant greeted her warmly and that, after that, they met various times. She also met the applicant’s wife. According to X the applicant had told her that he would not inform his children about her in order not to disrupt their schooling and she agreed. X stated that the applicant started visiting Malta regularly on his own, and when she had become pregnant he had offered her one of his properties to live in, and in this way they lived there together on his visits to the island. On the birth of X’s daughter in 1979, the applicant had been the latter’s godparent as shown by relevant certification. She claimed that at the applicant’s suggestion she moved to the UK, only to return sixteen months later because she missed Malta. At that stage the applicant had given her the keys to another property for her to live in. She remained in close contact with him until 1985. In 1998 she was evicted from the property and thereafter their relationship deteriorated. X explained that during the eviction proceedings the applicant had promised her a sum of money to leave the premises peacefully and that she had accepted the deal, but he never paid up. Subsequently, she successfully issued proceedings against him to recover the sum in question (the relevant court judgments were also submitted). 12. According to Y’s affidavit, Y. had had a relationship with the applicant, for whom she worked, and had become pregnant. She claimed that the applicant had wanted to interrupt the pregnancy and brought a person home to give her an injection. She later miscarried. The applicant had bought her a place to stay, and they used to meet there, since he was married. Y claimed that she had always been faithful to him as she feared him, given that he was a powerful man involved in criminal activities. Y stated that she later gave birth to a child she had with him (X) and thereafter their relationship had deteriorated, to the extent that he had also wanted her to prostitute herself. She finally plucked up courage, left him, and returned to Malta with X 13. On 13 May 2013, relying on Article 100A of the Civil Code (see Relevant Domestic Law), X requested the court to order that genetic tests be undertaken by her and the applicant. Apart from her own affidavit and that of her mother, she declared that she had no further evidence to adduce. On 4 June 2013 the applicant cross-examined Y. The cross ‑ examination was to continue at a later date. It is unclear whether this happened. 14. On 22 May 2013 the applicant objected to the tests on the basis that such an order would breach his human rights. In particular, he argued that Article 100A of the Civil Code (which referred back to Article 70A of the same code) breached his rights under Article 8 of the Convention, and requested that the court refer the matter to the constitutional jurisdictions. He further questioned why the request had been lodged fifty ‑ three years after X’s birth and noted his advanced age, arguing that any intervention could have negative medical implications for him. 15. After hearing submissions from the parties on the matter, on 23 October 2013 the court referred the applicant’s claim to the constitutional jurisdictions. B. Constitutional redress proceedings 16. In his submissions before the constitutional jurisdictions the applicant claimed that none of the aims mentioned in sub ‑ paragraph two of Article 8 applied in his case, and that the law in force did not allow for a fair balance of the competing interests at play. It also imposed an excessive burden in so far as it impeded his ability to contest a claim. Moreover, everyone was entitled to institute such proceedings without a shred of evidence, and an alleged father would be bound to submit to the test, with all its consequences, even though he was sure that he was not the father. He claimed that a positive result of the test would disrupt and create havoc in his life after so many years of silence [he was 88 years old]. He requested that the court balance X’s right (if any) to know who was her father against his right to respect for his private and family life. 1. At first instance 17. By a judgment of 30 October 2014 the Civil Court (First Hall), in its constitutional competence, found that there would be no violation of Article 8 if the Civil Court (in its ordinary competence) were to order the applicant to undergo a genetic test, for the specific purposes of that suit. 18. The court considered that the enactment of the impugned provisions reflected the State’s action in accordance with its positive obligations in respect of the right of individuals’ to know their parentage in the context of a judicial procedure. Citing Pascaud v. France (no. 19535/08, § 64, 16 June 2011), the court reiterated that “the interest of a presumed father was not, alone, a sufficient argument to deprive the applicant [a person seeking to establish paternity] of her Article 8 rights”. According to the court, disproportionality would result if the person seeking paternity had acted negligently, by not requesting the test or not availing him or herself of an available remedy, or had renounced such right, but this was not the situation in the case in hand. Referring to the ECtHR case ‑ law the court noted that while it was true that the absence of an obligatory test did not necessarily entail a violation, it could not be said that making it obligatory was in violation of Article 8 because it was not proportionate. 19. Furthermore, X’s age was irrelevant to her quest to discover her genetic parent. This was even more so given that she had been trying to establish paternity for years and that the applicant had been part of her life for a period of time. In that light the applicant could not claim that his family life would now be in havoc. 20. Lastly, referring to Jäggi v. Switzerland (no. 58757/00, ECHR 2006 ‑ X) which concerned the same circumstances save that the putative father in that case was deceased – the court confirmed that a particularly rigorous scrutiny was necessary in weighing competing interests in cases of ascertaining parentage, and that a person’s right to ascertain parentage was a vital interest protected by the Convention. 2. Appeal 21. On 10 November 2014 the applicant appealed. He argued, in particular, that by assessing the case in the light of positive obligations, the first ‑ instance court had failed to assess proportionality. Nor had it looked at the lawfulness of the measure and the legitimate aim – in this connection he contended that since the requirement to order the test was mandatory (unless it concerned a minor), it deprived the judge making such order of any possibility of balancing all the interests at stake and deciding according to his or her discretion. Furthermore, the impugned law breached the equality-of-arms principle and was contrary to procedural rules (specifically Article 562 of the Civil Code – see Relevant Domestic Law). 22. By judgment of 26 June 2015, the Constitutional Court rejected the appeal and confirmed the first ‑ instance judgment. 23. The Constitutional Court considered that, as was clear from the first ‑ instance judgment, the court in question had looked into the proportionality of the measure. While it had focused mostly on the legal aspects of the case, that did not mean that it had not considered the factual elements pertinent to the case, and indeed its conclusions had specifically referred to the case at issue and were not general. 24. As had been noted by the first-instance court, the Constitutional Court referred to the fact that X for a number of years had been hoping to discover the truth about an important aspect of her personal identity; she also wished to amend her birth certificate, which read “unknown father” (and was thus, in her view, incorrect), in order to avoid the humiliation which she experienced every time she had to present such certification. She also wanted to establish a claim over the applicant’s property after his death, according to law. Thus, her compelling interest in determining paternity was clear. On the other hand, save for his old age, the humiliation of undergoing the test (a buccal swab), and the havoc the confirmation of such paternity would cause, the applicant had not referred to any other negative effects. 25. The Constitutional Court recognised X’s right to have her paternity established for the reasons which she had adduced, namely moral and patrimonial interests. On the other hand, the applicant had not put forward any sufficiently cogent reasons to consider that the application in his case of Article 100A would breach his rights under Article 8. Reiterating the findings in Pascaud (cited above), the Constitutional Court emphasised that the interest of a presumed father was not, alone, a sufficient argument to deprive the applicant (a person seeking to establish paternity) of her Article 8 rights. Indeed, Article 8 paragraph 2 expressly allowed for a legitimate interference with a person’s private life where such interference was “for the protection of the rights and freedoms of others”. This was precisely the situation in the case in hand. Thus, the application of the relevant law to the applicant’s case would be justified given that the aim was precisely to establish X’s identity and to safeguard her patrimonial interest, if it were to emerge that she was the applicant’s daughter. 26. In that light, and bearing in mind the applicant’s submissions that Article 70A(2) of the Civil Code excluded any exercise of discretion by the court ordering the test, the Constitutional Court considered that while it could not be ruled out that there might be cases where the necessary application ( applikazzjoni tassativa ) of Article 70A(2) of the Civil Code resulted in a breach of Article 8, namely where a fair balance has not been reached between the interests at play, in the present case that was not so, given its factual circumstances. In the Constitutional Court’s view the applicant would not have suffered any humiliation in having to undergo a buccal swab, which was not an invasive action, and any turbulence which could be caused to his private and family life did not outweigh X’s interests. 27. Lastly, the complaint about equality of arms was frivolous in so far as the test was available to both parties, and also because the fact that a piece of evidence amounted to conclusive evidence in favour of one party did not mean that it should be discarded. C. Continuation of the civil proceedings 28. Following the above ‑ mentioned Constitutional Court judgment, on 18 October 2015 the Civil Court (Family Section) ordered that the proceedings be continued and that the applicant undergo the genetic test. It appointed an expert to conduct that examination and invited her to submit a report by 28 January 2016. 29. On 24 May 2016 counsel for the applicant informed the court that inquiries were to be made with the applicant concerning the possibility of his tendering evidence by video conferencing given that he was residing abroad. On 6 October 2016 counsel informed the court that it was likely that the applicant would file an affidavit with his own evidence. However, no such written testimony was submitted. 30. The applicant underwent the test, and according to a report issued by the expert on 21 February 2017 (submitted to the ECtHR) the probability of paternity, namely of the applicant being X’s father, was 99.9998%. 31. From the minutes of the hearing of 6 April 2017, it appears that the expert could not attend that hearing, so the court granted her leave to submit the report, and confirm it on oath, at the court’s registry; the court also solicited the applicant’s details. The case was adjourned for judgment. On the same day a note was filed by the applicant indicating his personal details. 32. On 21 June 2017 Civil Court (Family Section) declared that X was the biological child of the applicant and ordered the Director for Public Registry to make the necessary changes in the act of birth of X so as to include the applicant’s details. The court judgment referred to the sworn statements of X and Y as well as to the DNA report, and the failure of the applicant to make submissions, opting to limit himself to submitting his personal details. The court noted that X and Y’s testimony had not been rebutted as the applicant had failed to submit his testimony, and the applicant’s initial objection had been contradicted by the result of the DNA test, which corroborated the witness testimony, particularly that of Y. | The applicant7 complained about being ordered by a court to undergo a DNA test in a contested paternity case. |
229 | The definition of bis | 2. The applicant was born in 1960 and is currently detained in Regensdorf Prison. He was represented by Mr L. Erni, a lawyer practising in Zurich. 3. The Government were represented by their Agent, Mr A. Chablais, of the Federal Office of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s conviction AND SENTENCE AND THE REOPENING OF THE PROCEEDINGS 5. By a judgment of 6/12 May 1993, as amended on 4 July 1995 following a remittal, the Zurich Jury Court ( Geschworenengericht ) convicted the applicant, inter alia, of murder and of intentional manslaughter and sentenced him to twenty years’ imprisonment. The court found that the applicant had murdered a man in a particularly violent manner in 1983. Owing to his personality disorder and his alcohol intoxication, as diagnosed by psychiatric expert G., his capacity to appreciate the wrongfulness of the act had been substantially diminished. Furthermore, in 1990, the applicant, acting again with substantially diminished criminal responsibility, had induced his then partner to strangle an acquaintance in their flat; no reason for the offence could be established. He had subsequently dismembered the woman’s corpse. 6. The court further decided not to order the applicant’s preventive detention under Article 43 § 1, sub-paragraph 2, of the Criminal Code (see paragraph 20 below). Having regard to the fact that preventive detention in practice rarely lasted more than five years, it considered that the aim of protecting society from the applicant, who was very dangerous as a result of his abnormal mental state which the expert had considered difficult to treat, could be better attained by the execution of a long term of imprisonment. 7. The applicant served his sentence until 8 October 2010. Thereafter, he was placed in detention on remand pending a decision on the Public Prosecution Office’s application lodged in 2009 for the applicant’s subsequent preventive detention under Article 65 § 2 of the Criminal Code, which had entered into force in 2007 (see paragraph 23 below). 8. On 2 March 2012 the Federal Court, contrary to the lower courts, found that there were new facts permitting a reopening of the proceedings to the detriment of the applicant under Article 65 § 2 of the Criminal Code. A new report issued in May 2009 by psychiatric expert P., using new analytic methods which had not yet existed in the 1990s, had concluded that the applicant had not been addicted to alcohol at the time of his offences, but had suffered from a dissocial personality disorder and from psychopathy, which could not be treated and led to a very high risk that the applicant would commit further violent offences. These new facts had not, and could not have been, known to the Jury Court when convicting the applicant. The proceedings were subsequently reopened. The proceedings at issue 9. In the reopened proceedings, on 15 August 2013 the Zurich District Court ordered the applicant’s subsequent preventive detention under Article 65 § 2 read in conjunction with Article 64 § 1 (b) of the Criminal Code and section 2 § 1 (a) of the transitional provisions of the 13 December 2002 amendment to the Criminal Code read in conjunction with 43 § 1, sub-paragraph 2, of the previous version of the Criminal Code (see paragraphs 20-21 and 23-24 below). 10. Having regard to a new report drawn up by psychiatric expert R. in June 2013, as well as the report drawn up by expert P. in 2009 (see paragraph 8 above), it found that the requirements for the preventive detention of the applicant had been met at the time of the applicant’s conviction in 1993 and were also currently met. The applicant, who had committed two capital offences, had suffered and was still suffering from a serious mental disorder, notably a serious dissocial personality disorder and psychopathy. There was a very high risk that the applicant would commit further serious violent offences owing to that disorder if released. A psychiatric treatment under Article 59 of the Criminal Code (see paragraphs 19 and 21 below) had little, if any, prospects of success. 11. After the Zurich Court of Appeal had dismissed the applicant’s appeal on 16 July 2014, the Federal Court, on 16 December 2015, equally dismissed the applicant’s further appeal. 12. As for the compliance of the retrospective application of measures such as the order for a person’s subsequent preventive detention under Article 65 § 2 of the Criminal Code with Article 7 § 1 of the Convention the Federal Court found that the prohibition on retrospective punishment applied to orders for preventive detention under Articles 64-65 of the Criminal Code. It argued that the order of preventive detention and the imposition of a penalty were similar both in their punishing effect and in their execution. Accordingly, the principle of “nulla poena sine lege” laid down in Article 1 of the Criminal Code (see paragraph 19 below) expressly covered both penalties and measures. 13. Consequently, the retrospective application of preventive detention measures to perpetrators who committed an offence, or were sentenced, prior to the entry into force of the new provisions of the Criminal Code in 2007 was only permitted if the new law was not stricter than the law applicable at the time of the offence. However, Article 65 § 2 read in conjunction with Article 64 § 1 and 64a § 1 of the Criminal Code did not lay down a heavier sanction as regards the order for, and the release from, preventive detention than the law applicable at the time of the offence. 14. Furthermore, Article 65 § 2 of the Criminal Code permitted a reopening of the proceedings to the convicted person’s detriment. Likewise, Article 443 § 2 of the Canton of Zurich’s Code of Criminal Procedure (see paragraph 26 below) which had been applicable at the time of the applicant’s conviction, interpreted correctly (and other than the Court of Appeal had done), had permitted a reopening of the proceedings to the convicted person’s detriment if there were new facts or evidence. It was irrelevant that the Zurich Supreme Court (see paragraph 27 below), as well as the doctrine, had interpreted Article 443 § 2 of that Code as not applying to convicted persons, but only to acquitted ones. It had thus been possible already under the old law to quash a final judgment to the convicted person’s detriment owing to new considerable facts and evidence and to amend the judgment by the order of subsequent preventive detention. It was uncontested that both at the time of the applicant’s conviction and at present, the conditions for the applicant’s preventive detention (Article 43 § 1, sub-paragraph 2, of the previous version of the Criminal Code and Article 64 of its current version) were met. Therefore, the subsequent order of preventive detention did not constitute a heavier penalty than the one applicable at the time of the offence. 15. For the same reasons, Article 4 of Protocol No. 7, enshrining the ne bis in idem principle, had not been breached. The requirements for a reopening of the case under Article 4 § 2 of Protocol No. 7 had been met. There were new facts which the sentencing court had not known and could not have known at the time and which showed that the requirements for preventive detention under Article 43 § 1 of the old version of the Criminal Code and Article 64 of its new version had been met already at the time of the conviction. There was no double punishment for the same offences as the initial judgment of the sentencing court had been quashed following the reopening of the proceedings. 16. The order for the applicant’s preventive detention further had not violated Article 5 § 1 of the Convention. It had been justified under sub ‑ paragraph (a) of that provision as detention “after conviction”. The reopening of the proceedings owing to new facts with the aim to impose a heavier sanction led to the finality of the initial judgment being set aside. By applying the rules on reopening proceedings (Article 410 of the Swiss Code of Criminal Procedure, see paragraph 25 below), the imposition of subsequent preventive detention became part of the initial judgment and thus had a sufficient causal connection with the criminal conviction contained therein. 17. It could therefore remain open whether the applicant’s preventive detention could also be based on sub-paragraph (e) of Article 5 § 1 as detention of a person “of unsound mind”. In any event, medical expertise had confirmed that the applicant suffered from a serious mental disorder as a result of which he posed a very high risk to the life and limb of others. In view of the seriousness of the applicant’s illness and the risk he posed his detention was necessary. 18. As regards the conditions of the applicant’s detention, the applicant kept being detained in Pöschwies Prison in Regensdorf after having served his term of imprisonment. He had neither completed any therapy while he served his prison sentence as he had continuously refused any therapeutic measures nor does he appear to have undergone therapy afterwards. | This case concerned the ordering of preventive detention in respect of the applicant – a man who had serious psychiatric issues – after he had served a 20-year sentence for two homicides. The applicant complained in particular that he had been punished twice for the same crimes. |
1,092 | Pensions | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born on 30 August 1949 and lives in Nicosia. A. Background to the case 6. The applicant was employed at the Department of Lands and Surveys on 1 December 1971. On 1 January 1996 he was promoted to the position of assistant officer and on 2 February 1998 he was authorised by the director of the department to sign payment orders as authorising officer. On 13 May 2002 a complaint was made by the director following an irregularity in a compulsory acquisition case. It emerged from the investigation that a series of cheques had been issued as alleged compensation to owners of land that had been compulsorily acquired, but that the cheques had never reached the payees named on them. 7. A number of criminal proceedings were brought against the applicant and an accomplice. It also appears that a third person was charged but those proceedings were terminated following the filing of a nolle prosequi by the Attorney ‑ General. The proceedings against the applicant involved a total of 223 criminal charges. 8. On 18 January 2005 the applicant received concurrent sentences ranging from two to five years ’ imprisonment from the Nicosia Assize Court (no. 18115/02) on a plea of guilty, following a plea bargain to twenty- four charges concerning a number of offences. These included, inter alia, obtaining the amount of 225,643.67 Cyprus pounds (CYP) (approximately 390,000 euros) by false pretences, issuing false documents, forging cheques, abuse of office, and concealment. Part of the agreement reached between the parties was that the applicant would repay the sum of CYP 150,000 (approximately 255,000 euros), and a confiscation order for that sum was issued in respect of his property. In imposing the sentences the Assize Court also took into consideration another eight cases pending against the applicant before it as well as the District Court of Nicosia. 9. The applicant lodged an appeal with the Supreme Court against his sentence (criminal appeal no. 22/05). 10. Following the applicant ’ s conviction, and having received the Attorney-General ’ s advisory opinion that the offences committed involved dishonesty or moral turpitude, the PSC instituted disciplinary proceedings against the applicant. Similar proceedings were also instituted against his accomplice, on whom the PSC imposed compulsory retirement pursuant to section 79(1)(i) of the Public Service Law of 1990 (Law 1/1990; hereinafter “the Public Service Law”; see paragraph 43 below). 11. By a letter dated 13 April 2005 the PSC informed the applicant of the Attorney-General ’ s opinion and invited him to appear before it on 17 May 2005 and to make representations before proceeding with the imposition of a disciplinary penalty. 12. The PSC convened on 17 May 2005. The applicant ’ s lawyer requested a month to prepare his pleadings, as he had only recently been appointed and in view of the special nature of the case. The PSC granted the request. 13. On 13 June 2005, the applicant, who was represented by a lawyer, was heard by the PSC. He put forward a number of mitigating factors, which included his dire financial situation following suspension from his duties, the fact that he had paid off most of the sum agreed upon with the authorities, the conviction and sentence he had received from the Assize Court, his significant years of service, and the less severe punishment imposed on his accomplice. He also submitted a socio-economic report by the Department of Social Welfare Services. 14. On 13 June 2005 the PSC decided to dismiss the applicant. In its decision the PSC observed that this case had been one of the most serious cases it had been faced with. The conception and planning of the crimes committed showed a well-set-up fraud which had dealt a blow to the prestige and credibility of the procedures of the Department of Lands and Surveys and also to the image of the Public Service in general. The PSC noted that the offences of which the applicant had been convicted included some of the most serious offences against property, as well as abuse of office and concealment. The gravity of the offences was evident from the severity of the sentences applicable under the law, the substantial sum the applicant had secured through his unlawful actions, and the fact that eight more cases pending against him concerning similar offences had been taken into account by the Nicosia Assize Court when imposing sentence. The PSC also pointed out that the applicant had faced 223 charges in total, which was unprecedented for Cyprus and which disclosed the seriousness and the magnitude of the case. 15. In reaching its decision the PSC observed that it had taken into account the circumstances and conditions under which the applicant had committed the offences. He had been authorised to sign payment orders and had been entrusted by the Republic with the important post of promoting cases concerning compulsory acquisition and serving citizens involved in these cases. The applicant, however, did not live up to his responsibilities, exploited his position, and developed his criminal activities with unprecedented effrontery and recklessness. He had been the mastermind, instigator and main executor of the criminal activities. 16. The PSC also noted that it had taken into consideration what had been said by the applicant ’ s counsel in mitigation, in particular, the applicant ’ s personal and family circumstances, as well as the fact that he had undertaken to compensate for the damage and/or part of the damage suffered by the Republic as a consequence of his criminal acts. Further, the PSC pointed out that he had been the main protagonist and this had been stressed by the Assize Court when distinguishing the sentence passed on him from that passed on his co-accused. 17. Pursuant to section 79(7) of the Public Service Law (see paragraph 43 below), the disciplinary penalty of dismissal resulted in the forfeiture of the entire applicant ’ s public service retirement benefits (hereinafter “retirement benefits”). This entailed the loss of a retirement lump sum and a monthly pension. 18. Lastly, the PSC decided that the part of the applicant ’ s salary that had been withheld during the period of his suspension from service would not be returned to him. 19. Up to the date of his dismissal the applicant had worked for thirty-three years in the public service. 20. On 23 March 2006 the applicant withdrew his appeal. 21. Pursuant to section 79(7) of the Public Service Law (see paragraph 43 below), his wife received a widow ’ s pension. This amounted to 15,600 euros (EUR) per year. B. Judicial review proceedings 1. The first-instance proceedings 22. On 26 August 2005 the applicant brought a recourse before the Supreme Court (revisional jurisdiction) under Article 146 of the Constitution, seeking the annulment of the PSC ’ s decision to dismiss him from the Public Service and of the consequent forfeiture of his pension rights (recourse no. 994/2005). 23. The applicant claimed that the forfeiture of his retirement benefits had been in breach of Article 23 of the Constitution and Article 1 of Protocol No. 1 to the Convention. In this respect the applicant argued that his pension rights constituted a “possession”, and that their automatic forfeiture consequent to his dismissal was disproportionate. 24. On 2 April 2007 the Supreme Court, in an ex tempore decision, held that the recourse was admissible. The court observed that the case concerned the discretion of the PSC in deciding on the dismissal, taking into account all relevant parameters and, in particular, the consequences dismissal would have for the applicant. Therefore, the decision on the penalty and the consequences were very closely linked, bringing to the forefront the principle of proportionality as the main aspect of the PSC ’ s discretion. It was obvious from the PSC ’ s decision that in exercising its discretion when choosing the penalty to be imposed it had taken into account the automatic, as it considered, by law, loss of retirement benefits. As a result the court concluded that the extreme severity of the case justified, despite its grave repercussions on the applicant ’ s retirement rights, the penalty of dismissal. If in the end the court were to accept the applicant ’ s claims, the setting aside of the penalty of dismissal could not be excluded. The Supreme Court therefore concluded that it could continue to examine the merits of the recourse. 25. On 7 May 2007 the Supreme Court dismissed the recourse, but did not award costs against the applicant in view of the nature of the legal issues raised. 26. The Supreme Court, after having ruled that the retirement benefits of a public servant in Cyprus constituted a possession under Article 1 of Protocol No. 1, went on to examine whether or not there had been a violation of the applicant ’ s rights under this provision. Drawing guidance from the Court ’ s case-law, and in particular the judgments in the case of Azinas v. Cyprus (no. 56679/00, 20 June 2002, and [GC], no. 56679/00, ECHR 2004 ‑ III), and the decision in the case of Banfield v. the United Kingdom ((dec.), no. 6223/04, ECHR 2005 ‑ XI), the Supreme Court first pointed to those factors which justified the deprivation of the right to property in this case. One such main factor in the court ’ s view was the gravity of the offences committed. It considered in this respect that the characterisation of the case by the PSC as one of the most serious in its history did not appear to be an exaggeration. The impression given by the offences was such that not only did they entail a well-organised fraud but they also, most importantly, as the PSC asserted, dealt a blow to the prestige and trustworthiness of the administration. The court considered that sentencing the applicant to five years ’ imprisonment, as well as dismissing him, did not necessarily exhaust the limits of the discretion of the State to put things right. Besides, as in Azinas, the non-deprivation of pension benefits in the case of a pension plan to which the employee did not make contributions would amount to rewarding the applicant. 27. At the same time, the serious consequences of the applicant ’ s punishment - a sentence of five years ’ imprisonment and dismissal - had also to be considered, particularly the financial difficulties arising from the deprivation of the said rights as an additional “punishment” for the applicant and his family. The court observed that this was an important factor to be taken into account, according to the circumstances of each case. If the deprivation had not been automatic but discretionary within the framework of enacted procedures, as in England, it would have been possible to examine whether there should be a deprivation and to what extent. The court noted in this respect that it would indeed be good for the State to consider seriously the prospect of an amendment to the law so as to make the system more flexible and fairer in each case. Moreover, there was also the fact that the applicant had to a great extent returned the money he had embezzled, a fact which, although the PSC had said that it had taken it into account, did not appear to have affected its decision, since the punishment imposed on the applicant was, of the ten forms provided for, the extreme one of dismissal instead of choosing the second most serious form of punishment, that of compulsory retirement, which would not have entailed the loss of retirement rights. 28. In the end, however, the Supreme Court considered that the fact that the case in question arose and was heard on the basis of a different statutory regime from that in Azinas as regards the consequences of dismissal entailing the loss of pension rights, tilted the scales, albeit slightly, in favour of the Republic. The proviso in section 79(7) that the applicant ’ s pension from the day of his dismissal would be paid to his wife and dependent children as if he had died on that date reduced for the family the hardship resulting from the dismissal. Despite this, the court observed that it was likely that there would be cases with even more dire consequences for the dismissed employee, such as when there was no wife or dependent children, or their relationship was such that the dismissed employee could not reasonably expect to benefit through them. Nothing, however, had been said to include the present case among those cases, except for the theoretical possibility that his wife could die before the applicant. The court stated that, if matters were otherwise, it was likely that it would have ruled differently. 29. Finally, the Supreme Court stressed that the competent bodies should seriously study the possibility of amending the statutory framework on the basis of the law in force in England, so that deprivation of retirement rights was not automatic but could be looked at with the help of enacted procedures and with the exercise of discretion in order that the PSC might determine, by means of a reasoned decision, the extent to which it was just to forfeit, if at all, in any particular case, according to the individual ’ s special circumstances and needs. The Supreme Court considered that both the rule of law and the modern conception of individual justice demanded this. 2. Appeal proceedings 30. On 5 June 2007 the applicant lodged an appeal with the Supreme Court (appellate revisional jurisdiction; appeal no. 78/2007). He first challenged the first-instance finding concerning section 79(7) of the Public Service Law. He submitted that this section was contrary to Article 23 of the Cyprus Constitution and Article 1 of Protocol No. 1 to the Convention, as the forfeiture of his retirement benefits had been automatic, without the exercise of any discretionary power. In this respect he argued that the first-instance court had applied the proportionality principle incorrectly during the examination of the penalty imposed by the PSC, and therefore had been wrong when it decided that the measure was proportionate and in line with the Convention. Secondly, the applicant claimed that the finding of the first-instance court that the consequences of this decision were reduced because he was married and thus his wife and dependent children would receive a pension, was discriminatory on the ground of marital status and thus in violation of Article 28 of the Constitution. 31. On 12 June 2007 the respondent Government also appealed (appeal no. 81/2007) challenging the first-instance findings (a) that in the present case the retirement benefits could be considered a “possession”; (b) that in the disciplinary dismissal of a public servant there was no enacted framework providing for the exercise of discretion as to whether the retirement benefits would be granted; and (c ) that the payment of the pension to the applicant ’ s wife was the only essential factor which tilted the scales in favour of the Republic. 32. On 18 May 2010 the Supreme Court dismissed both appeals without awarding costs, in view of the importance of the matter raised. It agreed with the first-instance court ’ s finding that the right to a pension and its conditions constituted a possession of the employee. This right was created by the appointment of the employee. The fact that a pension was given to the wife and dependent children suggested that pension benefits were considered as “property” which could be transferred. In this respect the court referred to its judgment in the case of Pavlou v. the Republic (revisional appeal no. 161/2006, (2009) 3 CLR 1402; see paragraph 46 below) and the Court ’ s judgment in the case of Apostolakis v. Greece ( no. 39574/07, 22 October 2009 ). 33. The court went on to find, however, that the deprivation of the applicant ’ s retirement benefits had been justified. In this respect, the court noted that the PSC had chosen the penalty of dismissal under section 79(7) of the Public Service Law, after exercising its discretion and after considering the consequences and the fact that such a penalty was in the public interest. The first-instance court had examined whether the imposition of the penalty of dismissal, which brought about the automatic forfeiture of retirement benefits, was disproportionate. It had examined whether the PSC, when exercising its discretion, had applied the principle of proportionality in deciding on the penalty of dismissal, which itself resulted in the automatic deprivation of retirement rights. In this respect it held that the PSC had exercised its discretion when deciding to impose the penalty of dismissal. The PSC had had a variety of available penalties at its disposal, such as compulsory retirement, which did not bring about the forfeiture of the pension. It decided, however, in view of the offences committed by the applicant, that such deprivation was justified. 34. The Supreme Court pointed out that the European Court of Human Rights had acknowledged that the administration had wide discretion in deciding on such matters. 35. It went on to agree with the first-instance court that the deprivation of the applicant ’ s retirement benefits had been justified in view of the seriousness of the offences, which had dealt a blow to the trustworthiness and credibility of the administration. The relevant domestic law provision was aimed at discouraging public servants from committing serious offences and at protecting the smooth running of the administration. Section 79(7) of the Public Service Law was not contrary to Article 1 of Protocol No. 1, since the deprivation of retirement benefits was not a punishment on its own, but a consequence of the imposition of the penalty of dismissal. 36. The court went on to distinguish the applicant ’ s case from that of Apostolakis, in which the forfeiture had been automatic following a criminal conviction and had entailed deprivation of both pension and social security rights and therefore of all means of subsistence. In the present case, although the applicant had been deprived of his retirement benefits as a public servant, he had been entitled to receive benefits from the Social Insurance Fund, which were calculated on the basis of contributions made by the employer and the employee. Referring to the Court ’ s judgment in the case of Wieczorek v. Poland ( no. 18176/05, 8 December 2009 ), it found that the applicant had not been deprived of all means of subsistence. 37. As to the question of discrimination due to marital status, raised by the applicant, the Supreme Court held that the first-instance court ’ s comments on the matter did not support the applicant ’ s claim of discrimination. The comments in question had been made on a hypothetical basis and did not apply to the present case. 38. Lastly, the Supreme Court dealt with the remaining grounds of appeal put forward by the Government. It observed that the first-instance decision was to the effect that in the event of dismissal the law did not provide for a procedure concerning the exercise of discretion for forfeiting retirement rights, but it did not say that it was not possible to exercise discretion on the matter, since it recognised that there was a choice between dismissal entailing forfeiture of rights and compulsory retirement, which did not. Finally, it pointed out that the first-instance court had set out in its decision all the facts which it had taken into account in deciding on the proportionality of the forfeiture, and had rightly concluded that the payment of the pension to the wife meant that the deprivation was not disproportionate. The court did not award costs in view of the important issues raised. C. Other relevant information 39. The applicant has been receiving a social security pension from the Social Insurance Fund since 31 August 2012, when he reached the age of sixty-three. The pension therefore received by his wife pursuant to section 79(7) of the Public Service Law was then reduced by the complementary sum received by him from the Social Insurance Fund. According to a letter dated 28 November 2012 sent to her by State ’ s Treasury, her pension was reduced by EUR 854,94 per month. | This case concerned a civil servant who automatically lost his public service retirement benefits when dismissed following disciplinary proceedings brought against him in 2005. The applicant pointed out in particular that, although he had repaid his debt to society having been convicted by a criminal court, served a prison sentence, reimbursed the amount due, and lost his job, all his retirement benefits had automatically been forfeited. |
692 | Incitement to religious intolerance | I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant was born in 1950 and at the time of the publication of the article lived in Baku. The second applicant was born in 1975 and resides in Lankaran. A. Background information 7. The first applicant was a well-known writer and columnist, who collaborated with various newspapers and reviews writing under the pen name of Rafig Tagi. The second applicant worked as editor-in-chief of the Sanat Gazeti (Art Newspaper), a bi-weekly newspaper which mostly covered issues related to art, literature and theatre, and had a circulation of around 800 copies. 8. On 1 November 2006 an article entitled “Europe and us” ( “Avropa və biz” ) and signed by the first applicant was published on page 24 of the Sanat Gazeti newspaper, issue no. 16 (060). It was one of the articles written by the first applicant in a series of “East-West studies”. The full text of the article reads as follows: “Europe has always made mankind think of it not just as a geographical space, but in terms of a moral-ethical habitat. Since European values are in fact an achievement of all mankind, it should not lead to haughtiness on the part of the Europeans. Although unfortunately this haughtiness manifests itself from time to time, even materialising itself as fascism or in the form of a militarised aggressive nation. Of course, fascism was Europe’s unforgivable mistake. It turns out that the ideas of freedom and humanism emerged in Europe and they are effective and real only there. It is because of the coincidence of its moral postulates with these ideas that Christianity became well set in Europe. No other religion may be spread, disseminated in Europe. Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing. The Islamic humanism criteria cannot even resist the dialectic materialist criticism that we learnt by heart, became accustomed to. Islam is a type of Eastern despotism and may be considered only as one of the modifications of despotism. Islam would never transform into a moral imperative in Europe; it is incapable of that. Although it was carried as a coffin on the shoulders of the Ottoman Empire throughout Europe, no place was found to put it down. It was again brought and placed in the East, in the direction of Mecca. A man worshipping Jesus Christ would never give any consideration to the Prophet Muhammad. In comparison with Jesus Christ, the father of war fatwas ( müharibə fətvalarının atası ) the Prophet Muhammad is simply a frightful creature ( qorxunc bir məxluqdur ). At best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito ( tək-tək fiziki şəxslər, ya inkoqnito yaşayan terroristlər ). Europe is a lost opportunity of the East. The East did not perceive human freedom, or did not want to do so. Human freedom in the East crawls along as a problem of lowest priority. A man deprived of social and public freedoms is promised illusory happiness at the level of dark Islamic sects. The way to paradise decorated with calamities is portrayed as a way out of social mires. Islam has caused hypocritical working principles in structures of Eastern countries. Its taboo system has caused a full fiasco of the East, rendering worthless the few bright public ideas and thoughts available in it. Look, religious science in the Islamic world consists of only multiplication of these taboos and its further improvement. The West is always in dialectical and the East in metaphysical conditions. Only false progressive visions are possible in the Eastern metaphysical public status. Against the background of forward leaps of the West, the East looks like it has jumped back. All attempts of Azerbaijan at building a secular State result from European influence. In these sincere attempts the Azerbaijani people has completely proved that it is a real member of the European family. Our State relations with Islamic countries are tedious and reluctant and diplomatically insincere. Our thinking people consider Islam in Azerbaijan as a mandatory, necessary Eastern sign, the residue of violence. Historically, at least in our most recent history, the ‘sincere’ relations of Azerbaijani heads of State towards Islam mostly proceed from insincere ‘reigning’ interests. For them the Muslims had always been among significant obstacles to be cleared off and had significance merely as electoral strata. As much as I am the Pope, Azerbaijani heads of State were Muslims. The Azerbaijani Turk even remains European within the strict Shiite-Islamic regime of Iran. Oppressions and any kind of persecution, or nationalist assimilation attempts, bring no success to Persian chauvinism. You should pay attention, the immigration from the South [Iranian Azerbaijan] is mainly towards Europe. This psychological self-knowledge says everything with no need for proof or explanations; one should take advantage of it. Frankly speaking, the Eastern elements in the character of the Azerbaijani who is in substance European seem like a foreign substance, I would say, a defect in the Azerbaijani man. The Eastern belonging adds nothing to the system of values of the Azerbaijani man. Russia too did not want to isolate itself from the West; even if it was subjected to regular military aggressions from the West. Peter the Great, having not been pleased with both sides said his word confidently and resolutely. His attempts to graft Europe on Russia succeeded entirely. Russian culture and Russian literature are entirely European sourced. All States of the world, if looked at thoroughly, are engaged in the interpretation of freedom to a certain extent. The problem of human rights is discussed there in terms of Europe, taking it as a specimen. Since only European values are inevitable factors of progress. Human rights are a social European invention and are acceptable only in the European model. European culture succeeded in removing the barbarism from human nature. With crimes reduced to a minimum; there is no need already for this living factor. First of all, man was able to overcome himself in the European area, could move away from the Evil and get closer to the Good. Europe also passed through bloody revolutions, but having gained experience earlier than others, it says no to them again first of all. The refusal of revolution is a superiority of the West over the East. Only societies which do not need social and political revolutions are good. By the way, the scientific and technical leaps in America and South-East Asia are also creations of European science. If there was no Europe, the world would probably have thought that the Sun rotates around the Earth. The East would have considered that the Earth is supported by bulls. Europe already finalised its painful moral, ethical, historical and philosophical searches, and managed to bring them to a necessary, decent, useful condition. Today the European man reaps the fruits of centuries-old searches and thoughts. Since these searches and thoughts were always practical, realistic and logical. The real life of a man exists only with logical deeds. The lack of logic is a shortage of intellect and is uselessness. Logic is the most important attribute of wit. The thoughts of the Eastern man are as if not for living; it is unknown for what they are. The European philosopher does not act as a clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract. In any case, the intention is to direct a man towards the life hereafter. The school of Eastern philosophers is a system of limited thinking inside Islam. The Eastern philosopher is at best in the role of an Islamic missionary. It is necessary to say that the link with Islam is not at all a merit for a philosopher. F. Nietzsche’s works were beautiful exactly in that they were far from religion. In the case of Fyodor Dostoyevsky, although the link with religion looks so attractive, it was not so important. Outside Christianity, Dostoyevsky would still have been more interesting, more fundamental. ... The East-West comparative analysis is mainly met with envy and intolerance, and sometimes with severe pressure and reactions. And this article, which I have suddenly completed, has been written taking into account all the pressure and reactions. Moreover, I would say it is to be continued.” 9. Following the publication of the article, the applicants were publicly criticised by various Azerbaijani and Iranian religious figures and groups. In particular, in November 2006 one of the prominent religious leaders of Iran, Ayatollah Muhammad Fazel Lankarani, issued a religious fatwa calling for the applicants’ death. The publication of the article also triggered protests in Iran in front of the Azerbaijani embassy and consulate. B. The applicants’ criminal conviction and further developments 10. On 11 November 2006 criminal proceedings were instituted against the applicants under Article 283 of the Criminal Code (incitement to ethnic, racial, social or religious hatred and hostility). 11. It appears from the documents in the case file that on 14 November 2006 the investigator in charge of the case ordered a forensic linguistic and Islamic assessment ( məhkəmə-linqvistik islamşünaslıq ekspertizası ) of the impugned article. In particular, he asked the expert to establish whether there were any elements capable of leading to incitement to religious hatred and hostility in the article “Europe and us”, and if so in which part of the article those elements appeared. 12. Report no. 11908, signed by J.M., the head of the religious expertise department at the State Committee for Work with Religious Organisations, was issued on 15 November 2006. The relevant part of the report reads as follows: “The examined writings, submitted for assessment, consisted of Rafig Tagi’s article ‘Europe and us’ published on page 24 of the Sanat Gazeti newspaper no. 16 (060). The author writes, in paragraph 3, that ‘Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing’. In fact, Islam is a humanist religion calling for high moral standards and good behaviour. The author tries to propagandise among the individuals hatred and hostility against Islam by using these sentences. The author further argues that ‘in comparison with Jesus Christ, the father of war fatwas the Prophet Muhammad is simply a frightful creature’. The fact that the Prophet Muhammad had high moral standards and that he treated the people well was established in the Koran and in the works of various Western scholars. In the third verse of the Al-Qalam Surah of the Koran, Allah indicated that the Prophet Muhammad had high moral standards. The comparison between Jesus Christ and the Prophet Muhammad and the consideration that the one is preferable to the other seek to incite religious hatred and hostility. The author also notes that ‘at best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito’. The author tries to prove by this sentence that Muslims living in the West are terrorists and Islam supports terrorism. However, terrorism is vigorously condemned in the verses of the Koran and the hadiths. In the last paragraph the author argues that ‘the European philosopher does not act as a clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract’. By these words, he insulted the Eastern philosophers ridiculing them, claiming that they are mad and stupid. However, philosophers of worldwide renown such as Al-Farabi, Al-Ghazali and Ibn Rusd appeared in the East. This position of the author accusing all the Eastern philosophers of being clowns seeks to spread propaganda of hatred and hostility against Islam. The above-mentioned considerations give sufficient grounds to conclude the existence of elements of actions leading to incitement to religious hatred and hostility in Rafig Tagi’s article ‘Europe and us’ published on page 24 of the Sanat Gazeti newspaper 16 (060). Conclusion There are elements of actions leading to incitement to religious hatred and hostility in Rafig Tagi’s article ‘Europe and us’, published on page 24 of the Sanat Gazeti newspaper 16 (060), in paragraph 3 in the sentences ‘Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing’; ‘in comparison with Jesus Christ, the father of war fatwas the Prophet Muhammad is simply a frightful creature’; ‘at best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito’; and in the last paragraph in the sentences ‘the European philosopher does not act as a clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract.” 13. On 15 November 2006 the Nasimi District Court ordered the applicants’ detention pending trial. 14. On 4 May 2007 the Sabayil District Court found the first applicant guilty under Article 283.1 of the Criminal Code (incitement to ethnic, racial, social or religious hatred and hostility, committed publicly or by use of the mass media) and sentenced him to three years’ imprisonment. The court also found the second applicant guilty under Article 283.2.2 of the Criminal Code (incitement to ethnic, racial, social or religious hatred and hostility, committed by a person using his official position) and sentenced him to four years’ imprisonment. It appears from the judgment that the applicants pleaded not guilty in the course of the court proceedings, arguing that they had not committed any criminal offence. The employees of the Sanat Gazeti newspaper and of the company which published it were questioned as witnesses before the court and stated that the impugned article had been sent by the first applicant to the newspaper and had been published following the authorisation of the second applicant. The court held that the passages of the impugned article referred to in report no. 11908 dated 15 November 2006 contained elements capable of leading to incitement to religious hatred and hostility. In that connection, the judgment relied on the conclusions of the forensic report, without making any legal assessment or giving further explanation. The relevant part of the judgment reads as follows: “It was established by forensic linguistic and Islamic report no. 11908 dated 15 November 2006 completed in connection with that case that there are elements of actions leading to incitement to religious hatred and hostility in Rafig Tagi’s article ‘Europe and us’, published on page 24 of the Sanat Gazeti newspaper 16 (060), in paragraph 3 in the sentences ‘Europe has always refused and refuses the deceitful humanist ideas of other religions, including Islam. Morality in Islam is a juggling act; its humanism is not convincing’; ‘in comparison with Jesus Christ, the father of war fatwas the Prophet Muhammad is simply a frightful creature’; ‘at best, Islam would advance in Europe with tiny demographic steps. And maybe there would be a country in which Islam would be represented by a few individuals or terrorists living incognito’; and in the last paragraph in the sentences ‘the European philosopher does not act as clown like the Eastern philosopher, is not inclined to Sufism, or madness, stupidity. Yes, the Eastern philosopher is a pure actor; all his activities are decorated with imaginations of miniature ornament for the sake of ideology. The Eastern philosopher says something for the sake of saying something. The aim, the way is unknown, or quite abstract.’ Therefore, assessing the totality of the collected evidence, the court considers that it was fully proven by the statements from the accused persons and the witnesses, and the forensic report that Tagiyev Rafig Nazir oglu was guilty of committing the criminal offence provided for by Article 283.1 of the Criminal Code of the Republic of Azerbaijan and that Huseynov Samir Sadagat oglu was guilty of committing the criminal offence provided for by Article 283.2.2 of the Criminal Code of the Republic of Azerbaijan.” 15. On 18 May 2007 the applicants appealed against that judgment, claiming a breach of their right to freedom of expression as protected under Article 10 of the Convention. In particular, they argued that the first-instance court’s judgment had simply copied the conclusions of report no. 11908 dated 15 November 2006, without giving any consideration to the Court’s case-law relating to Article 10 of the Convention. 16. On 6 July 2007 the Court of Appeal upheld the judgment of 4 May 2007. The wording of the appellate court’s judgment was almost identical to the first instance court’s judgment and made no mention of the applicants’ particular complaint under Article 10 of the Convention. 17. On 31 August 2007 the applicants lodged a cassation appeal against the appellate court’s judgment, reiterating their previous complaints. 18. On 22 January 2008 the Supreme Court upheld the Court of Appeal’s judgment of 6 July 2007. The Supreme Court held in particular that it agreed with the lower courts’ findings, based on the forensic linguistic and Islamic report and the witness statements, that the applicants had committed the criminal offence provided for by Article 283 of the Criminal Code. 19. In the meantime, on 28 December 2007 the applicants were dispensed from serving the remainder of their sentence by a presidential pardon decree and were released from prison, having spent more than one year and one month in detention. 20. On 19 November 2011 when the first applicant returned home from work he was stabbed by an unknown person who fled from the scene of the crime. On 23 November 2011 the first applicant died in hospital. A separate application (see application no. 72611/14) concerning the circumstances of the death of the first applicant, in which various complaints under Articles 2, 10 and 13 of the Convention were raised, is pending before the Court. II. No one shall be forced to proclaim or to repudiate his or her thoughts and beliefs. III. Agitation and propaganda inciting racial, ethnic, religious, social discord and hostility are not allowed.” Article 48 Freedom of conscience “I. Everyone enjoys the freedom of conscience. II. Everyone has the right to freely determine his or her attitude to religion, to profess, individually or together with others, any religion or to profess no religion, to express and disseminate his or her beliefs concerning his or her attitude to religion. ...” B. Criminal Code 22. Article 283 of the Criminal Code, in force at the relevant time, provided as follows: Article 283 Incitement to ethnic, racial, social or religious hatred and hostility “283.1. Acts aimed at inciting ethnic, racial, social or religious hatred and hostility, humiliation of national dignity, as well as acts aimed at restricting citizens’ rights or establishing citizens’ superiority on the basis of their ethnic, racial, social or religious origin, if committed openly or by means of the mass media, are punishable by a fine in the amount of one thousand to two thousand manats, or restriction of liberty for a period of up to three years, or deprivation of liberty for a period of two to four years. 283.2. The same acts, if committed: 283.2.1. with the use of violence or the threat of use of violence; 283.2.2. by a person using his official position; 283.2.3. by an organised group; are punishable by deprivation of liberty for a period of three to five years. ...” | This case concerned the conviction of the applicants – a well-known writer and columnist and an editor – for inciting religious hatred and hostility with their remarks on Islam in an article they had published in 2006. |
324 | Obligation on States to protect the victims of trafficking | 9. The applicant was born in 1990 and lives in Z. 10. Owing to problems in her family, between 2000 and 2004 she lived with a foster family. Then she moved to a public home for children and young persons, where she stayed until she completed her professional training in catering service. Afterwards she moved to live with her father in S. and occasionally visited her mother in Z. The applicant’s criminal complaint and the ensuing investigationThe applicant’s criminal complaint against T.M. The applicant’s criminal complaint against T.M. The applicant’s criminal complaint against T.M. 11. On 27 September 2012 the applicant came to a police station in Z. and on the record made a criminal complaint against a certain T.M. She alleged that during the summer of 2011 T.M. had physically and psychologically forced her into prostitution. 12. The applicant submitted that sometime before the summer of 2011 T.M. had contacted her via Facebook and presented himself as a friend of her parents. Following this initial contact, for about a month or two she had continued exchanging messages with T.M. over everyday things. Then sometime in June or July 2011 she had met T.M. and went for a drink with him. On that occasion T.M. had explained that he wanted to help her with finding a job because he knew her parents. For that purpose T.M. left his phone number. Already on that occasion the applicant felt that T.M. was a person who insisted on having things his own way and who could not be contradicted. 13. The applicant further stated that following this meeting she had continued exchanging messages with T.M. via Facebook. As she had had no reason to question T.M.’s intentions, about two weeks after the first meeting she had contacted T.M. and they had decided to meet again. This time when they met T.M. had said that he would take her to a man to whom she should provide sexual services for money. T.M. had explained that she should charge 400 Croatian kunas (HRK; approximately 50 euros (EUR)) for her services and that she should give him half of that money. She had told T.M. that she did not want to do this. T.M. had then said that she would only have to do this until he found her a proper job. As she had earlier realised that T.M. was not a person to whom one could say “no”, out of fear she had agreed to go with him to see the man. 14. T.M. had then taken her in his car to a place in the proximity of Zap. (a city near Z.) where the man had been waiting for her in a house. The applicant had explained to the man what was happening and the man had not insisted on having intercourse with her but said that he would give her HRK 400. T.M. had listened to this conversation behind the door and, after the man had left the room, T.M. had slapped the applicant saying that she should never talk to clients and that she should listen to him and do only what he told her. 15. The applicant further explained that after this incident, T.M. would pick her up every day in front of the place where she lived in Z. and he would take her in his car to provide sexual services to men who had answered an advertisement on a social network. After a while, he had given her a mobile telephone so that clients could contact her and had continued to drive her to meet clients in various places. Soon afterwards T.M. had rented a flat in Z. (the applicant provided the address) where she continued rendering sexual services to men. This arrangement had allowed T.M. to have her constantly under control as he had always been in the flat and had also said that he would install cameras so that he could know what was happening. The applicant had been afraid of T.M. as he had said that he had done the same thing with some other girls, whom he would physically punish if they did not listen to him. T.M. had also physically punished her when she opposed him over something. When she had refused to provide sexual services to other men, he had beaten her. 16. The applicant also stated that at the beginning of September 2011, when she knew that T.M. would be absent from the flat for a longer time, she had left the flat and gone to the house of her friend M.I. She explained to M.I. what had happened to her. After he had realised that she had left him, T.M. had at first started contacting her via Facebook asking her to come back and saying how he loved her and that she would never again have to provide sexual services. As the applicant had not answered these messages, T.M. had started threatening that he would find her and that she and her parents would “pay” for everything. The applicant had continued ignoring these messages so after a while T.M. had stopped sending them. A year later, and two weeks before the applicant lodged her criminal complaint, T.M. had again contacted her via Facebook mentioning her mother. All this had made the applicant feel frightened for her own safety and the safety of her parents and sister. 17. The applicant finally explained that on average she had had one client per day because when T.M. had not been around she would turn off the phone and deactivate the advertisement so that clients could not contact her. In total she had some thirty clients and she had earned approximately HRK 13,000 (approximately EUR 1,700). Half of this amount she had given to T.M. Preliminary police investigation 18. On the same day when the applicant made her criminal complaint, the police informed the Z. Municipal State Attorney’s Office (hereinafter “the State Attorney’s Office”) that the complaint had been lodged and that they were conducting a preliminary investigation. 19. On 10 October 2012, following an order by the Z. County Court (hereinafter “the County Court”), the police conducted a search of T.M.’s premises and his car. In the car, the police found and seized condoms. During the search of T.M.’s premises, the police seized two automatic rifles with ammunition, a hand grenade and a number of mobile phones. 20. The police also established that T.M. was registered in the police records as a perpetrator of the criminal offences of procuring prostitution, and rape. His criminal record, obtained by the State Attorney’s Office, indicated that in 2005 T.M. had been convicted of the offence of procuring prostitution using coercion, under Article 195 §§ 2 and 3 of the Criminal Code (see paragraph 96 below) and rape under Article 188 § 1 of the Criminal Code, and that he had been sentenced to six and a half years’ imprisonment. 21. On 10 October 2012 T.M. was arrested and questioned by the police. It was established that T.M. had trained as a policeman. He denied the allegations made by the applicant and stated that everything was an attempt by the applicant and her mother to take revenge on him for the difficult relationship he had had with the applicant’s mother. 22. On 11 October 2012 the police sent the applicant’s criminal complaint and all the collected evidence to the State Attorney’s Office. The police classified the applicant’s complaint under Article 195 § 3 of the Criminal Code (procuring prostitution using coercion). T.M. was also brought before an investigating judge of the County Court who ordered his pre-trial detention. He remained in detention until the end of the criminal proceedings against him in the Municipal Court. Investigation conducted by the State Attorney’s OfficeQuestioning of T.M. Questioning of T.M. Questioning of T.M. 23. On 11 October 2012 T.M. was questioned in the State Attorney’s Office. He reiterated the arguments made during the police questioning. He also explained that the applicant had contacted him because she had asked him to protect her from another person for whom she was engaged in prostitution. T.M. denied that he had ever proposed to her that she engage in prostitution for him. He also stressed that the applicant had rented a flat in Z. and that he had lent her money for that, which she had later returned. T.M. further explained that at the applicant’s request he used to drive her around. However, she had not told him where she was going but he had suspected that she might be engaged in prostitution. T.M. stated that he had not lived with the applicant in the same flat. He would only sometimes stay overnight when she would invite him as they had had a relationship. T.M. admitted that once he might have hit the applicant but that was because she had provoked him. He denied that he had given her a mobile phone as she had had her own phone. Questioning of the applicant 24. On 16 October 2012, in the context of the investigation against T.M., the applicant was questioned in the State Attorney’s Office. The applicant was informed of all her rights as a victim of an offence under Article 43 § 1, Article 45 and Article 52 § 4 of the Code of Criminal Procedure (see paragraph 98 below). She stated that she had understood the instructions and made no specific request in that regard. 25. During the questioning, the applicant repeated her statement concerning the first contact she had had with T.M. (see paragraphs 12-13 above). She also explained that sometime in spring 2011 T.M. had started suggesting that he could find a job for her in a shopping mall. As she had been without employment, she had started communicating with him more intensively. In this context, she had met T.M. on various occasions in cafés and he had continued saying that he could find a job for her. She had had no reason to question his intentions. 26. The applicant also provided further details concerning the incident when T.M. had taken her to provide sexual services to a man in a house near Zap. She stated that it had happened at the beginning of July 2011 and that T.M. had taken her there by deceiving her into thinking that he would take her to a friend who could find her a job. The applicant repeated her statement as regards the events in the house and how the man had not insisted on sexual intercourse but had still paid her HRK 400. She also reiterated that T.M. had stormed into the room where she was with the man and started to shout at her, following which he had slapped her. Moreover, on their way to Z., T.M. had threatened to throw her out of the car on the highway because she had started asking what was happening. 27. The applicant further explained that the next day T.M. had again contacted her and told her that they needed to talk about what had happened. She had agreed to meet him but they had not discussed what had happened as he had avoided the topic. A few days later T.M. had given her a mobile telephone. He had explained that clients seeking sexual services would contact her on that number. T.M. had also told the applicant that she had to give her physical description to men who would contact her and charge HRK 400 for half an hour of sexual services or HRK 600 (approximately EUR 80) for an hour, and that she had to give half of that money to T.M. The applicant had acquiesced to all that because she had been scared that T.M. would attack her again and that he would tell her parents everything that was happening. 28. The applicant also submitted that the men who would contact her had explained that they had seen the advertisement on the Internet. Some ten days after the incident in Zap., T.M. had rented a flat (the applicant provided the address), where the applicant and T.M. had then lived together. She had provided sexual services in that flat and sometimes T.M. had driven her to clients. Since T.M. had lived in the same flat with her, he had controlled everything she did. When she had refused to have sexual intercourse with other men or with him or when she had talked to the clients, T.M. had beaten her. He had beaten her every couple of days. She repeated the statement concerning the amount of money she had earned and stressed that she had given half of it to T.M. 29. Asked as to why she had not contacted the police earlier, the applicant answered that she had been afraid of T.M. and that he had had her under his control. However, once, when T.M. had been out of the flat and had left the key, she had called her friend M.I. and asked her for help. M.I. had known that she had been giving sexual services to men for money against her will and that she had been in trouble. After this discussion, M.I.’s boyfriend, T., had arrived by taxi, helped the applicant to collect her things and taken her to M.I.’s home, where she had then stayed for several days. 30. The applicant further said that after she had left, T.M. had at first started contacting her via Facebook asking her to come back to him and telling her that he loved her. As the applicant had not answered these messages, T.M. had started threatening that he would tell everything she had done to her parents. She had truly been afraid that he might do that so she had decided to lodge a criminal complaint to put an end to everything that had happened. 31. The applicant also said that T.M. had told her that he had previously had a girlfriend, A., whom he had treated in the same way as the applicant. She had also learned from Facebook that T.M. had later had another girlfriend who had been engaged in prostitution. T.M. had told the applicant that he had filmed those girlfriends and punished them when they had been insolent. He had also threatened to do the same thing to the applicant. T.M. had told her all that in order to break her will to stand up to him. Questioning of M.I. 32. On 6 November 2012 the State Attorney’s Office questioned M.I. She said that the applicant was her friend and she had known her for some two years. M.I.’s last contact with the applicant (before the applicant had come to her flat) had been some eight or nine months previously. 33. M.I. explained that at the end of summer 2011 the applicant had suddenly come to her home with a bag containing her things. M.I. had then learned that the applicant had agreed with M.I.’s mother that she would come to stay with them, but she (M.I.) did not know any details since she was not on very good terms with her mother. Also, M.I.’s boyfriend (whose full name and address she gave) had told her that he had spoken to the applicant. However, soon afterwards M.I. had broken up with her boyfriend so they had not discussed any details concerning his contact with the applicant. 34. M.I. further stated that the applicant had told her about T.M., from whom she had escaped because she had no longer wished to be involved in prostitution for him. Before the applicant had come to her flat, M.I. had known that the applicant was engaged in prostitution but she had not known where or for whom the applicant was doing this. Only then had M.I. learned that the applicant had being doing it for T.M. According to M.I., the applicant had been very distressed and scared. She had told M.I. that T.M. had repeatedly beaten her, had watched her through a key hole when she had been giving sexual services to clients and afterwards had also beaten her for not being in a position he had approved of. 35. M.I. also said that she understood that the applicant had voluntarily given sexual services because she had needed money. The applicant had told her that she had had an agreement with T.M. to work for him and to share the money, that she had had a mobile telephone for clients to call her and that there had been a small ad through which she had been contacted for appointments by clients. The applicant had said that T.M. had given her that mobile telephone and placed the advertisement. 36. M.I. further stated that she could not remember if the applicant had told her that she had resisted T.M. It was true that the applicant had said that she had not wished to “do it” but in M.I.’s understanding that had rather meant that the applicant had been “doing it” because she had had no other means to earn money. The applicant had also told her that T.M. had slapped her for very minor reasons which she (the applicant) had not expected. The applicant had also said to M.I. that when she had refused sexual relations with him T.M. would beat her and the applicant had not known what would make him explode again. According to M.I.’s knowledge, T.M. had also told the applicant that he had had another girlfriend whom he had treated in the same way as the applicant. The applicant told M.I. that she had used the opportunity to run away from T.M. when he had been out of the flat where they had lived. 37. M.I. also said that the applicant had stayed with her and her mother for more than half a year and that T.M. had continued to contact the applicant through Facebook. M.I. had seen the messages that he had sent and they were threatening to the applicant and the applicant’s mother. He had also sent messages saying that he loved her and asking her to come back to him. The indictment against T.M. 38. On 6 November 2012 the State Attorney’s Office indicted T.M. in the Z. Municipal Criminal Court (hereinafter “the Municipal Court”) on charges of procuring prostitution using coercion, as an aggravated offence of procuring prostitution, proscribed by Article 195 § 3 of the Criminal Code (see paragraph 96 below). 39. The indictment alleged that T.M., in order to obtain pecuniary gain, had deceived the applicant into believing that he would find her a job. However, after that he had taken her to provide sexual services to a man in Zap. As the applicant had refused to do that, T.M. had hit her and then, on their way back to Z., had threatened to throw her out of the car. Soon afterwards T.M. had provided the applicant with a mobile phone to answer the clients’ calls. He had also instructed her how to charge for sexual services and to give half of the money to him. According to the indictment, the applicant had consented to this out of fear. T.M. had then taken the applicant to the addresses of clients where she had provided sexual services for money and after a while he had rented a flat in Z. where the applicant had continued providing sexual services to a number of men. T.M. had kept the applicant under surveillance and had also told her that he had beaten other girls who did not do what he had requested. When the applicant resisted him saying that she did not want to provide sexual services anymore, T.M. would hit her. She had therefore, out of fear of him, continued providing sexual services to men for money until September 2011, when she had run away from the flat. 40. The indictment relied on the applicant’s statement and considered that it was corroborated by M.I.’s evidence. The indictment also considered that T.M.’s defence, although denying the commission of the offence, essentially made the applicant’s statement even stronger. 41. On 22 November 2012 a three-judge panel of the Municipal Court confirmed the indictment and sent the case for trial. Criminal proceedings against T.M. First hearing First hearing First hearing 42. The first hearing before the Municipal Court scheduled for 12 December 2012 was adjourned because T.M. claimed to be on hunger strike and could not therefore participate in the proceedings. The judge conducting the proceedings commissioned an expert report to establish whether T.M. could participate in the trial. 43. The expert report established that T.M. had worked as a policeman for a number of years and that he had been a member of the special police forces during the war in Croatia in the 1990s. He had retired from the police in 2001. He suffered from a post-traumatic stress disorder (PTSD) related to his participation in the war and he had also developed a personality disorder. He had received psychiatric treatment over a number of years. According to the report, T.M.’s capacity to understand the nature of the impugned acts had been diminished but not to a significant degree. The report therefore recommended that, in the event of conviction, an order for mandatory psychiatric treatment be made. The report also considered that T.M. could participate in and follow the proceedings. Second hearing (T.M.’s defence pleading) 44. At a hearing on 14 January 2013 T.M. pleaded not guilty. He denied that he had forced the applicant into prostitution. He confirmed that he had contacted the applicant through Facebook because he had recognised her surname since he had known her mother. After several exchanges of messages via Facebook, T.M. and the applicant had started to see each other and the applicant had told him that she had had no money and needed a job and that she had some debts. She had also said that she was in fear of a certain B., whom T.M. had known from prison and it had therefore been clear to him “what the applicant was doing”. Moreover, she had said that she had kept contact details of her clients which she had obtained from B. The applicant had also asked T.M. to lend her money to rent a flat, which he had done and she had later returned the amount she had borrowed in two instalments. The applicant had also said that she would try to find a job. 45. T.M. further stated that a few weeks after he had met the applicant, they had engaged in a relationship. The applicant had asked him to take her to certain addresses by car and on five or six occasions he had done so. He had known that she was going there to give sexual services for money. However, he had not known how much she had been earning from the provision of her services. T.M. confirmed that he had once hit the applicant because they had had a disagreement over “work” and she had provoked him. He specified that this concerned the fact that the applicant had said that she had found a job in a bakery but that she did not want to work. T.M. had not liked her attitude so there had been an argument and, as he had not been able to control himself, he had hit her. Later on, he had found a job for the applicant in a restaurant in Zap. but then she had disappeared. This had happened in August 2011 and the only thing he had found in the flat she had rented had been a message from the owner of the flat addressed to the applicant. 46. When questioned by the judge conducting the proceedings, T.M. explained that he had not lived with the applicant in the flat she had rented but only sometimes spent the night there. He had had the keys of the flat. Sometimes the applicant would go alone to see her clients or to see a doctor or her friends, and she would later inform T.M. that she had some money. T.M. could not explain why he had agreed to the applicant providing sexual services to other men when he had been in a relationship with her. He stressed that she had wanted to be independent and to earn her own money so he had not wanted to interfere in that. He also explained that he had only used one mobile phone and that those found by the police during the search had been his old phones which he had no longer used. 47. When questioned by the prosecutor, T.M. denied that he had given any mobile phone to the applicant. According to him, she had had her own two mobile phones. T.M. also stated that on two or three occasions the applicant had given him some money for fuel because he had driven her around. However, she had constantly complained that she had no money so he used to give her money as well. T.M.’s impression was not that the applicant had been afraid of him as she had not been the kind of person to be afraid of anybody. 48. Following T.M.’s questioning, the prosecutor asked that the applicant and M.I. be heard as witnesses. The defence agreed and made no other proposal for the taking of evidence. The trial court accepted the parties’ proposal and scheduled the next hearing for 29 January 2013. Third hearing (the applicant’s and M.I.’s oral evidence) 49. The summons for the hearing served on the applicant contained detailed information on her rights as a victim, such as psychological and practical support and the possibility to contact the Department for Organising and Providing Support for Witnesses and Victims within the Municipal Court. The contact details of that Department were also provided. 50. At a hearing on 29 January 2013 the Municipal Court heard evidence from the applicant and M.I. The applicant was accompanied by a lawyer provided to her by the non-governmental organisation the Rosa Centre. 51. Before giving her evidence the applicant told the trial court that she was afraid of T.M. He was then removed from the courtroom and the applicant gave evidence in his absence. The applicant’s oral evidence 52. During questioning, the applicant repeated her statement given during the investigation (see paragraphs 25-31 above) and said that she wanted to clarify certain aspects of that statement. In this connection, she explained that before the incident in Zap. she had met T.M. three or four times for a coffee and they had exchanged messages on Facebook. He had promised to do his best to find her a job as a waitress or in a shop. The applicant further clarified that when T.M. had taken her to see the man in Zap., he had said that they would have a coffee with him. In the house, the man had seen T.M. slapping her. With regard to the events that happened on their way back to Z., the applicant explained that she had wanted to run away from T.M. but that he had managed to catch her and had forced her to stay in the car. The next day when they had met they had not talked about these events but about her attempts to find a job. The applicant also explained that she had agreed to move into the flat which T.M. had found without him using any force on her. She had done that in order to protect her roommate with whom she had lived at the time. T.M. had commented on how good-looking she was and the applicant had tried to avoid getting her in any of these things and to end up like she (the applicant) did. 53. When questioned by the judge conducting the proceedings, the applicant explained that when T.M. had rented the flat for her she could guess what she was expected to do there, namely to provide sexual services. She had been afraid of him and for that reason had agreed to give sexual services to other men. He had also threatened that he would tell everything to her parents and that he would put her mother in prison. The applicant also repeated her statement from the investigation about the number of clients she had had and the money she had earned, half of which she had given to T.M. 54. The applicant further stated that T.M. had been present in the flat when she had provided sexual services to other men. Sometimes he had watched her through the keyhole and he would slap her if she refused to be with a client or to have the intercourse in the way T.M. had wanted. She had also been forced to have sex with T.M. She had not sought medical help or contacted the police because she could not get out of the flat. 55. When further questioned by the judge conducting the proceedings, the applicant said that she had not known T.M.’s background when they had first got in touch. At that time, he had known that she had no job and he had promised to try to find her one. As to the incident in Zap., the applicant repeated her statement from the investigation. She explained that she had voluntarily given the money she had received from the man to T.M. 56. The applicant also explained that she had accepted the mobile phones which T.M. had procured for the contacts with clients because she had been afraid of him. Later on, while no longer living in the flat which T.M. had rented, the applicant had learned from T.M. that her mother had previously reported him (the applicant did not specify for what) and that he had been in prison. The applicant also stated that it was she alone who had answered the clients’ calls. Clients would sometimes come to the flat or T.M. would drive her to meet them. In the flat, she had lived with T.M. although she had been required to pay rent, and she had done so. She had not had keys to the flat. She had had one mobile phone which T.M. had provided and she had her own mobile phone but did not have money on the pre-paid SIM card. She had stayed in the flat for about a month and a half. She had not tried to run away because she had been afraid of T.M. She had also not tried to contact the police because T.M. had said that he had contacts in the police and that he would very quickly learn if she had reported him. 57. As regards her escape from the flat, the applicant explained that once she had taken advantage of the fact that T.M. had been absent for a while and that the key had been left in the front door. She had then called her friend M.I., with whom she had been in contact over the Internet some fifteen days before when she had told M.I. that she was in trouble and that she would need her help. On the occasion when she had called M.I., the applicant had spoken to M.I. and her mother. She had not explained any details but had simply said that she was staying with a man in a flat and was engaged in prostitution and that she wanted to escape. The agreement was that M.I.’s now former boyfriend T. would come by taxi to pick her up. The applicant explained that she had had some earlier contacts with T. via Facebook but she had not told him anything about her situation. When T. had taken her to M.I.’s place, the applicant had found M.I. and her mother there. She had stayed with them for about ten days and she had told M.I. what she had been through. Meanwhile, she had also had contact with the owner of the flat where she had stayed with T.M. concerning the rent and how she could get some of her belongings that she had left there. 58. Further to the judge’s questions, the applicant explained that she had not tried to escape from T.M. when he took her to see clients away from the flat because she had been sure that he would find her and he had strictly controlled the time she spent with clients. The applicant also stated that T.M. had told her that he had done the same thing to another girl. When confronted with T.M.’s defence, the applicant denied that T.M. had ever lent her money to pay her rent. She said that she did not know any person by the name of B. and denied that she had had any contact details of clients. She also stated that T.M. had never told her that he had found her a job in the restaurant in Zap. Later on, when she had already left him, he had sent her some messages via Facebook mentioning that he had found her a job in a shop. 59. The applicant also stated that at first when she had run away from T.M. she had not wanted to report him to the police. However, after she had left, T.M. had continued contacting her via Facebook, had reported to the authorities that her mother had neglected and abused her younger daughter, and had threatened that as soon as she found a job or continued with her education he would destroy everything for her. She had therefore decided to report him to the police. The applicant also explained that after she had left T.M. she had been afraid to go out in public and felt fear every time she saw a car similar to T.M.’s. 60. When questioned by the prosecutor, the applicant stated that she had been very afraid of T.M. She had never known how he would react and she had been in fear for her life because he used to threaten that he would beat her to death. Also, when she had refused to have sex with him, he would beat her. He had also beaten her when she said that she did not want to provide sexual services anymore. Moreover, he had deceived her by saying that she would have to provide sexual services only for a few days and that he would find her a proper job. As to the sharing of money, the applicant explained that she would first hand over all the money she had collected from a client to T.M. and he would then give part of it to her. T.M. had also set some rules concerning the way she was allowed to provide sexual services. When she did not obey this or if she gave sexual services in a manner that he did not like, he would then beat her. He had also taken photos of her naked and published them with the ad. She had not objected to him taking the photos because she had been scared. Then, he had threatened to show the photos to her parents. 61. When questioned by her lawyer, the applicant stated that T.M. had at first presented himself to her as a former policeman and said that he had been in the war with her father. Later on he had said that he knew people in every police station and that he would “frame” her if she tried to report him. 62. When questioned by the defence lawyer, the applicant stated that following her first contact with T.M. she had not tried to get in touch with her mother to check whether she had known him. At that time, her mother had not lived in Croatia and they had not been on good terms. However, she had then exchanged some messages with her mother, who had simply said that T.M. was not a reliable person. The applicant had also asked her father about T.M. and he had said that T.M. was “an okay person”. The applicant had concluded from the messages which she had exchanged with T.M. that he was not a bad person and she had no reason to call into question his statement that he had been a policeman. Later on, after she had left T.M., the applicant had spoken to her mother about him. Her mother had told her that she had lived with T.M. after she had split from the applicant’s father. When the applicant asked her mother why T.M. was angry with her and why she had reported him (it was not specified in the record for what), her mother had said that it had not been her but another girl who had reported him and that this girl had provided sexual services in the same manner as the applicant did. According to the applicant, that was the same girl about whom T.M. had also spoken to her. 63. When further questioned by the defence lawyer, the applicant explained that when she had gone to pick up her belongings from the flat where she had lived with T.M., the owner of the flat and M.I. had been there with her. She had been contacted by the owner as she had not paid the last rent. The flat had been rented in her name. During her stay in the flat with T.M. the owner used to come and T.M. would present them as a couple to the owner. The applicant also stated that T.M. had slept every night in the flat. She did not deny that there had been moments when she would leave the flat to go to a shop without T.M. It had happened three or four times during the period of a month and a half. However, she had not dared to run away because of her fear of T.M., who had always watched her from the window. 64. After the applicant’s questioning, T.M. was brought back to the courtroom and her statement was read out to him. He had no questions and made a general objection as to the credibility of her statement. M.I.’s oral evidence 65. The trial court then proceeded to the questioning of M.I. She repeated her statement given during the investigation (see paragraphs 32-37 above). 66. When questioned by the judge conducting the proceedings, and after being presented with the applicant’s statement, M.I. denied that the applicant had called her when she had left T.M. She insisted that the applicant must have arranged everything with her (M.I.’s) mother. M.I. further stated that she had known from before that the applicant was engaged in prostitution because the applicant had told her so. The applicant had explained to M.I. that she needed money and that she was living without parents. M.I. considered that the applicant had initially engaged in prostitution voluntarily. M.I.’s opinion was that the applicant had also voluntarily engaged in the prostitution ring with T.M. because she had needed money. However, the applicant had not known who she was dealing with given that – as M.I. had learned from the applicant – T.M. had forced and beaten her. M.I. could not remember whether the applicant had told her that she had resisted T.M. when he had asked her to provide sexual services to men. The applicant had told M.I. that she did not want to do these things anymore but M.I. had understood that as a general complaint about the fact that she had to earn money in this way. 67. When further questioned by the judge conducting the proceedings, M.I. stated that the applicant had stayed for several months with her. When she had come to M.I.’s place, the applicant had not had any visible injuries but had been very scared and upset. She had been in fear of T.M. and had said that she could not believe what had happened to her and that she had not expected that. M.I. also explained that she had seen the Facebook messages which T.M. had sent to the applicant on the applicant’s laptop. They had been long messages in which T.M. had sometimes said how he loved the applicant and sometimes had made threats mentioning the applicant and her mother. M.I. denied that she had gone with the applicant to pick up her belongings in the flat where she had lived with T.M. According to M.I., it had been her boyfriend T. who had gone with the applicant to the flat. 68. When questioned by the defence lawyer, M.I. stated that the applicant had never mentioned to her a person by the name of B. She also said that at about the time when the applicant had come to her place she was about to break up with her boyfriend T. As far as M.I. knew, at the relevant time T. had only once exchanged a message with the applicant via Facebook. 69. Following M.I.’s questioning, the applicant stated that she had no objections to M.I.’s evidence. The applicant considered that, although there had been some discrepancies in their statements, this was the result of the peculiar course of events. 70. After hearing the applicant and M.I., the prosecutor proposed that the materials from the file be allowed as evidence. The defence asked that a certain K.Z. be heard as a witness concerning the threats of revenge that the applicant’s mother had allegedly made towards T.M. The defence also asked that T.M.’s brother be heard as a witness. 71. The prosecution opposed these proposals and the trial court considered that it was not necessary to take the evidence proposed by the defence. The next hearing was scheduled for 15 February 2013. Closing hearing (T.M.’s closing statement) 72. At the hearing on 15 February 2013 the applicant was represented by the lawyer provided by the Rosa Centre. T.M. asked the trial court to allow him to make a further statement, which the trial court agreed to. 73. In his statement, T.M. stated that he knew the applicant’s mother because she had also been a prostitute but had lost touch with her when he had started serving his prison sentence. After he had made contact with the applicant via Facebook, the applicant had told him that she had talked to her mother about him. He had wanted to help the applicant to find a job and she had also told him that she was engaged in prostitution because that had been the easiest way to earn money. He had fallen in love with the applicant and wanted to have a relationship with her. He had agreed that she could continue with the prostitution because he was not a jealous person. However, he had told her that she should get a proper job. 74. T.M. further stated that it was the applicant who had rented the flat and organised everything. He knew that she had charged HRK 400 for half an hour and HRK 600 for an hour but it had been her, not him, who had set that price. He had not constantly stayed in the flat. He also denied that the incident in Zap., as stated in the indictment, had ever happened. 75. When questioned by the judge conducting the proceedings, T.M. admitted that sometimes he had been in the flat when the applicant had provided sexual services to men and that he had received half of the money which she had charged for her services. He had not wanted to take the money but the applicant had insisted saying that it was for the fuel that he had used when driving her to meet clients away from the flat. T.M. also denied that he had strictly controlled the time the applicant had spent with her clients. However, he admitted that he had given her money to buy a mobile phone but that was because she had asked for it. According to T.M., the applicant could have left the flat whenever she wished. However, he had been surprised to see that one day she had simply left. He assumed that the reason for that was the fact that he had put pressure on her to find a proper job and had even made certain contacts to arrange job interviews for her. T.M. admitted that he had hit the applicant once but the reason had again been related to his insistence that she find a proper job. T.M. also stated that he had not known how many clients the applicant had had in total. He had not always been with her and had not constantly controlled her. He denied any deception or force towards the applicant related to her provision of sexual services. 76. When asked by the applicant’s lawyer why the applicant needed him at all when she had arranged everything on her own, T.M. refused to answer that question saying that he had already explained everything concerning their relationship. 77. After hearing T.M.’s further statement, the parties made no further proposals for the taking of evidence. The judge conducting the proceedings admitted the documents provided by the prosecution as evidence, heard the parties’ and the applicant’s lawyer’s closing statements and concluded the proceedings. The judgment 78. Following the hearing of 15 February 2013 the Municipal Court acquitted T.M. on the grounds that although it had been established that he had organised a prostitution ring into which he had recruited the applicant, it had not been established that he had forced or pressured her into prostitution, which was a constituent element of the offence he was charged with under Article 195 § 3 of the Criminal Code. In finding this, the court in particular noted the following: “On the basis of the evidence given by the accused and the victim in these criminal proceedings the following facts have been established: that the accused and the victim met through the social network Facebook when the accused contacted the victim; that the accused had known the victim’s mother and father from before; that after the initial contact, the contacts continued in that the accused and the victim met in cafés in Z.; that at the time the victim lived in a rented flat with a friend K.; that she voluntarily, and at the invitation of the accused, moved to [another] flat in Z.; that she lived in that flat together with the accused for about month or month and a half. There is also no doubt that the accused gave a mobile telephone to the victim so that she could be contacted by the clients with whom she discussed providing sexual services; that the victim indeed did provide sexual services in the flat where she lived with the accused; that on five or six occasions the accused drove the victim to the addresses of clients where she provided sexual services; that the victim charged for providing sexual services the sum of HRK 400 for half an hour and the sum of HRK 600 for an hour. Moreover, there is no doubt that on one occasion the victim left the flat where she lived with the accused and went to her friend M.I. However, it remains to be established whether the accused forced the victim to provide sexual services – which she undoubtedly provided – by the use of force or threat of the use of force or by deception, in order to obtain pecuniary gain.” 79. In reaching the above conclusion, the Municipal Court noted that the decisive evidence on which the indictment was based was the applicant’s witness statement. However, the Municipal Court considered that it could not give sufficient weight to the applicant’s testimony because her statement had been incoherent, in places illogical and contrary to the evidence given by the witness M.I. and also by T.M. in his defence. Moreover, she had been unsure and had paused and hesitated when speaking. On the other hand, the Municipal Court considered that it could rely on the evidence given by M.I. and that it could generally accept T.M.’s defence, despite the fact that he had changed his statement during the proceedings. The court also considered that T.M.’s denial of the use of any coercion against the applicant was confirmed by the evidence given by M.I. as regards her knowledge of the applicant’s previous life and the circumstances in which she had engaged in prostitution for T.M. 80. On 26 March 2013 the State Attorney’s Office lodged an appeal against the first-instance judgment with the County Court. It argued that the first-instance court had erred in its factual findings concerning the charges against T.M. in not accepting the applicant’s testimony. The State Attorney’s Office considered that her statement had been coherent, credible, logical and convincing, given that in all relevant parts she had provided a consistent account of the manner in which T.M. had forced her into prostitution. It also considered that T.M.’s statement could not be taken as credible and stressed that M.I. did not have direct knowledge of the relevant facts of the case. 81. On 21 January 2014 the County Court dismissed the appeal of the State Attorney’s Office and upheld the first-instance judgment, endorsing the reasoning as well as the facts as established by the Municipal Court. 82. The County Court’s judgment was served on the applicant’s lawyer on 28 February 2014. Proceedings before the Constitutional Court 83. On 31 March 2014 the applicant lodged a constitutional complaint with the Constitutional Court, complaining about the manner in which the criminal-law mechanisms had been applied in her case. She alleged, in particular, that the domestic authorities had not properly elucidated all the circumstances of the case relating to her participation in the prostitution ring organised by T.M. and had allowed that the offence committed by him to remain unpunished. 84. On 10 June 2014 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the applicant had not had the right to bring a constitutional complaint concerning the criminal proceedings against T.M. since these proceedings had concerned a criminal charge against him. Victim support and assistance provided to the applicant 85. On 21 December 2012, following an identification process carried out by the Ministry of the Interior, the applicant was officially given the status of victim of human trafficking by the Office for Human and Minority Rights of the Government of Croatia ( Vlada Republike Hrvatske, Ured za ljudska prava i prava nacionalnih manjina; hereinafter “the Human Rights Office”; see paragraph 105 below). 86. On the same day the Ministry of the Interior contacted the Croatian Red Cross and its employees informed the applicant of her rights (safe accommodation, medical check-ups, psycho-social support, legal aid and material support). 87. The applicant did not wish to exercise the right to safe accommodation since she lived with her mother and sister. However, in the period between 17 January 2013 and 24 April 2015 the applicant contacted the Red Cross on several occasions. She received psycho-social support through individual counselling and material support. On two occasions the Red Cross also organised a dental examination for the applicant, as well as individual counselling with a psychologist. 88. Further to this the applicant was provided with legal aid by the non-governmental organisation the Rosa Centre (see paragraph 50 above), whose activities in the field of human trafficking were in part supported by the State. Other relevant factsComplaint concerning the criminal proceedings against T.M. Complaint concerning the criminal proceedings against T.M. Complaint concerning the criminal proceedings against T.M. 89. On 13 March 2013 the non-governmental organisation the Rosa Centre complained to the Human Rights Office that the State Attorney’s Office had not pursued the applicant’s case diligently by collecting and presenting evidence capable of elucidating all the circumstances of the case. In this connection, the Rosa Centre stressed that there had been some inconsistencies in the statements of the applicant and the witness M.I., which required further clarification. It also submitted that the applicant had later explained that certain inconsistencies in her statement had been the result of her wish to protect other persons, namely her roommate, her friend M.I. and her mother. 90. The Rosa Centre further argued that the trial court, which had not been bound by the prosecution’s legal classification of the facts, had not reclassified the charges to the basic form of procuring prostitution under Article 195 § 2 and convicted T.M. of that offence. The Rosa Centre also suggested that after the hearing, in an informal context, the judge conducting the proceedings had said to its lawyer that probably eighty percent of his colleagues would have convicted T.M. but that he had not considered that T.M. should be convicted as charged by the State Attorney’s Office. On that occasion, the judge had also stated that the State Attorney’s Office should have amended the indictment. 91. The Human Rights Office forwarded this letter to the State Attorney General’s Office and asked for the relevant explanations. 92. In its report of 14 May 2013 the competent State Attorney’s Office explained that it had considered the applicant’s statement to be credible and convincing, and that it provided sufficient grounds for T.M.’s conviction under Article 195 § 3 of the Criminal Code. However, the Municipal Court had not agreed with this assessment and had acquitted T.M. The State Attorney’s Office still believed that the classification of procuring prostitution using coercion was appropriate and it had therefore lodged an appeal against the first-instance judgment (see paragraph 80 above). In these circumstances, it did not consider that it should have amended the indictment. In any event, it stressed that if the Municipal Court considered that T.M. should have been convicted of the basic form of the offence of procuring prostitution under Article 195 § 2 of the Criminal Code, it could have amended the legal classification of the charges itself. 93. On the basis of this report, on 21 August 2013 the State Attorney General’s Office informed the Human Rights Office of its findings endorsing the assessment of the case by the competent State Attorney’s Office. T.M.’s action concerning the applicant’s mother 94. The case file of the Municipal Court which the Government provided to the Court contains a document indicating that on 4 September 2012 the Office of the Deputy Prime Minister of Croatia forwarded to the Ministry of Social Policy and Youth and the Ministry of the Interior a complaint made by T.M. about the alleged mistreatment of her children by the applicant’s mother. The Office of the Deputy Prime Minister asked the relevant ministries to examine the matter and to report back on their findings. A copy of the Office’s request was also sent to T.M. | This case concerned a Croatian woman’s complaint of human trafficking and forced prostitution. The applicant complained of an inadequate official procedural response to her allegations. |
34 | Education | 2. The applicants’ names, years of birth and place of residence are listed in Appendix I below. They were represented by Mr D.A. Karsai, a lawyer practising in Budapest. 3. The Government were represented by their Agent, most recently Ms O.F. Ezer, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicants live in an area inhabited primarily by ethnic Hungarians. They attended school in Romania and were taught in Hungarian, their mother tongue, and because of this, had to take two additional exams in the baccalaureate, to assess their proficiency in their mother tongue (see paragraph 12 below). They all failed their baccalaureate because they did not obtain the required grades to pass the exams in Romanian language and literature (Ms Ádám, Mr Petres, Mr Bakos, Mr Forika and Mr Maxem) or Hungarian language and literature (Mr Ambrus). They all retook the exams but failed to obtain the required grades (see Appendix I below). Some of the applicants contested the marks (Mr Bakos, Mr Ambrus, Mr Forika and Mr Maxem), but after reassessment, their grades were still not sufficient to pass the exams. They all obtained the required grades in the other exams in the baccalaureate. 6. Under the applicable rules, in order to pass the baccalaureate, candidates must obtain a minimum of 5.00 in each exam and the overall grade must be a minimum of 6.00 (see paragraph 12 below). The maximum grade is 10. 7. The Ministry of Education sets the timetable for the baccalaureate at the beginning of each school year (see paragraph 12 and Appendix II below). The written exams are organised over consecutive days: Romanian language (written), mother tongue (written) and the first exam in a curriculum subject. Pupils sitting the additional exams in their mother tongue have three consecutive days of written examination, whereas pupils not sitting them have a day of rest in between (see Appendix III below). 8. According to data provided by the Government, in the period 2013 to 2018 the success rate in the final exams was 58.1 to 73.9% for all pupils and 58.4 to 70% for pupils taught in Hungarian. During the same period, the success rate in the Romanian language and literature exams was 17 to 18% lower for Hungarian language students than for their Romanian peers. | The applicants, ethnic Hungarians, undertook their education in their mother tongue. In order to receive their baccalaureate (school-leaving) qualification they had to sit exams to test their Romanian and their Hungarian, having to take two more exams than ethnic Romanians. They complained about discrimination against them as members of the Hungarian minority in the taking of final school exams — they had to take more exams than ethnic Romanians (two Hungarian tests) over the same number of days, and the Romanian exams had been difficult for them as non-native speakers. |
513 | Gender identity | I. THE CIRCUMSTANCES OF THE CASE 7. According to the applicant ’ s birth certificate, she is male. She served in the army for three years from the age of 17 and then worked as a police officer. Aged 24, she gave up attempting to live as a man, and had gender reassignment surgery two years later. She has presented as a woman since 1963, is identified as a woman on her National Insurance card and paid contributions to the National Insurance scheme at the female rate (until 1975, when the difference in rates was abolished). In 1972 she became self-employed and started paying into a private pension fund. 8. By a letter dated 22 August 1997, the applicant applied to the local government benefits office for State pension payments. She wished these to commence on 22 December 1997, her 60 th birthday. Her application was refused by a decision of the Adjudication Officer issued on 31 October 1997. He stated that she had applied “too early”, and was only entitled to a State pension from the age of 65, the retirement age applicable to men. 9. Her appeal against this decision was heard by Birmingham Social Security Appeal Tribunal on 12 March 1998, which dismissed it on the basis of established case-law. At this time she claimed that she was no longer able to work due to a spinal collapse fracture of osteoporotic origin. 10. On 1 October 1998 the applicant submitted her appeal to the Social Security Commissioner. Leave to appeal was granted but, by a decision of 1 June 2000, her appeal was dismissed following an oral hearing. The Commissioner felt compelled to follow previous decisions and also held that the DSS had not entered into an agreement to treat the applicant as a woman. 11. In the light of the judgments of 11 July 2002 given by the Grand Chamber in Christine Goodwin v. the United Kingdom ( [GC], no. 28957 /95, ECHR 2002-VI) and I. v. the United Kingdom ( [GC], no. 25680/94), in which the Court found that the Government ’ s continuing failure to take effective steps to effect the legal recognition of the change of gender of post-operative transsexuals was in breach of Article 8, the applicant wrote to the Office of Social Security on 12 July 20 02 asking for her case to be reopened. The Commissioner notified her on 14 August 2002 that leave to appeal to the Court of Appeal had been granted. 12. On 5 September 2002 the Department for Work and Pensions refused to award the applicant a State pension in light of the judgment in Christine Goodwin. 13. In the Court of Appeal, the applicant sought, inter alia, a declaration that she was entitled to her full retirement pension from her 60 th birthday, and damages for breach of the Human Rights Act 1998, in force from 2 October 2000. Meanwhile, on 22 December 2002, the applicant reached the age of 65 and her pension payments began. 14. By agreement, her case was adjourned to await the House of Lords judgment in Bellinger v. Bellinger. In that case the claimant, a transsexual, sought a declaration of validity in respect of a marriage contracted following gender reassignment surgery. By a decision of 10 April 2003, their Lordships, whilst finding the Government ’ s continuing failure to legislate to be a breach of Articles 8 and 12, deemed the formulation of legal norms to remedy that breach best left to Parliament ([2003] WLR 1174). Further, the House of Lords disapproved of attempts to seek recognition even in the clearest cases on the basis that (a) eventually a line would have to be drawn and (b) such demarcation required detailed consideration by the legislature of the likely social consequences. Following this decision, the applicant was advised by her legal representative that the prospects of persuading the Court of Appeal to depart from the Bellinger judgment, and thus of obtaining an effective remedy, were nil. If proceedings were continued, she would further risk punitive costs orders. Accordingly, the applicant consented to a court order dismissing her appeal with no order as to costs. The Government further refused to make any ex gratia payment of a sum representing her lost State pension. 15. On 26 April 2005 the applicant was issued with a Gender Recognition Certificate following her application under the Gender Recognition Act 2004 which had come into force on 1 July 2004 (see paragraphs 30-31 below). | The applicant, a 68-year-old post-operative male-to-female transsexual, complained about the lack of legal recognition of her change of gender and the refusal to pay her a retirement pension at the age applicable to other women (60). Her application was refused on the ground that she would only be entitled to a State pension when she reached 65, this being the retirement age applicable to men. She appealed unsuccessfully. In 2002 she requested that her case be reopened in the light of the European Court of Human Rights’ judgment of 11 July 2002 in Christine Goodwin v. the United Kingdom1. On 5 September 2002 the Department for Work and Pensions refused to award her a State pension in light of the Christine Goodwin judgment. In December 2002, when the applicant had reached the age of 65, her pension payments began. |
909 | Tribunal established by law | I. THE CIRCUMSTANCES OF THE CASE A. Relevant background 8. Following its declaration of independence from the former SFRY in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of “ethnic cleansing” or generalised violence. Numerous crimes were committed during the war, including those committed by the present applicants. The following local forces were the main parties to the conflict: the ARBH [1] (mostly made up of Bosniacs [2] and loyal to the central authorities in Sarajevo), the HVO [3] (mostly made up of Croats) and the VRS [4] (mostly made up of Serbs). The conflict ended in December 1995 when the General Framework Agreement for Peace (“the Dayton Agreement”) entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. 9. In response to atrocities then taking place in the territory of the former SFRY, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) as an interim institution [5]. In 2002, in order to ensure that its mission was concluded successfully, in a timely way and in coordination with domestic legal systems in the former Yugoslavia, the ICTY began devising a completion strategy [6]. That strategy was endorsed by the UN Security Council [7] and the authorities of Bosnia and Herzegovina (they enacted the necessary statutory amendments and concluded agreements with the High Representative – an international administrator appointed under the Dayton Agreement). A vital component of the strategy was the setting up of war crimes chambers within the State Court consisting of international and national judges (see paragraphs 34-36 below). B. The facts concerning Mr Maktouf 10. Mr Maktouf was born in 1959 and lives in Malaysia. 11. On 19 October 1993 he deliberately assisted a third party to abduct two civilians in order to exchange them for members of the ARBH forces who had been captured by the HVO forces. The civilians were freed several days later. 12. On 11 June 2004 the applicant was arrested. 13. On 1 July 2005 a Trial Chamber of the State Court found him guilty of aiding and abetting the taking of hostages as a war crime and sentenced him to five years’ imprisonment under Article 173 § 1 in conjunction with Article 31 of the 2003 Criminal Code. 14. On 24 November 2005 an Appeals Chamber of that court quashed the judgment of 1 July 2005 and scheduled a fresh hearing. On 4 April 2006 the Appeals Chamber, composed of two international judges (Judge Pietro Spera and Judge Finn Lynghjem) and one national judge (Judge Hilmo Vučinić), convicted the applicant of the same offence and imposed the same sentence under the 2003 Criminal Code. As regards the sentence, it held as follows (the translation has been provided by the State Court): “Considering the degree of criminal responsibility of the accused and consequences of the criminal offence, as well as the fact that the accused was an accessory to the commission of the criminal offence, and considering the mitigating circumstances in favour of the accused, the Chamber applied the provisions on reduction of punishment and reduced the sentence to the maximum extent possible, applying the provision of Article 50 § 1 (a) of the [2003 Criminal Code], sentencing him to imprisonment for a term of five years, being of the opinion that the pronounced sentence can fully achieve the purpose of punishment and that the pronounced sentence will influence the accused not to commit other criminal offences in future.” 15. Following the applicant’s constitutional appeal, on 30 March 2007 the Constitutional Court examined the case under Articles 5, 6, 7 and 14 of the Convention and found no violation of the Convention. The decision was served on the applicant on 23 June 2007. The majority decision reads, in the relevant part, as follows: “42. The Constitutional Court points out that section 65 of the [State Court Act 2000], the initial text of which was imposed in a Decision taken by the High Representative and subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina, provides that during the transitional period, which may not exceed five years, the Panels of Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption are to be composed of national and international judges. The Criminal and Appellate Divisions may be composed of several international judges. The international judges may not be citizens of Bosnia and Herzegovina or any other neighboring state. International judges are to act as panel judges in accordance with the relevant provisions of the Criminal Procedure Code of Bosnia and Herzegovina and in accordance with the provisions of the Law on the Protection of Witnesses and Vulnerable Witnesses of Bosnia and Herzegovina and may not be criminally prosecuted, arrested or detained, nor are they liable in civil proceedings for an opinion expressed or decision made in the scope of their official duties. 43. The High Representative ‘... in the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, ... under which the High Representative shall facilitate, as the High Representative deems necessary, the resolution of any difficulties arising in connection with civilian implementation..., noting that the communiqué of the Steering Board of the Peace Implementation Council issued at Sarajevo on 26 September 2003 stated that the Board took note of the UN Security Council Resolution 1503, which, inter alia, called on the International Community to support the work of the High Representative in setting up the war crimes chamber..., noting the Joint Recommendation for the Appointment of International Judges signed by the Registrar of the Registry ... and President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina...,, [and] bearing in mind the relevant provisions of the [State Court Act 2000],’ on 24 February and 28 April 2005, took Decisions on the Appointment of International Judges Finn Lynghjem and Pietro Spera to Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court]. 44. Under the aforementioned Decisions on Appointment, international judges are to serve for a term of two years and are eligible for reappointment as prescribed by law. International judges may not discharge duties which are incompatible with their judicial service. All other requirements concerning the judicial duty referred to in the [State Court Act 2000] apply to these appointments to the greatest extent possible. The international Registrar of the Registry shall inform the High Representative of any event which may prevent the judge from discharging his/her duties. During the mandate, the judge is to comply with all standards relating to professional conduct as prescribed by the [State Court]. The appointed international judge is to discharge his/her duties in accordance with the laws of Bosnia and Herzegovina and take decisions on the basis of his/her knowledge [and] skills and in a conscientious, responsible and impartial manner, strengthening the rule of law and protecting individual human rights and freedoms as guaranteed by the Constitution of Bosnia and Herzegovina and the European Convention. ... 46. The competences of the Divisions of the [State Court] to which international judges are appointed include, beyond any doubt, certain matters derived from international law. The acknowledgment of the supranational nature of international criminal law, established through the case-law of the Nuremberg and Tokyo Military Tribunals, the Tribunal in The Hague and the Tribunal for Rwanda, also includes international criminal tribunals. This certainly includes the situation in which a certain number of international judges are appointed to national courts. The High Representative appointed international judges to the [State Court] in accordance with the powers vested in him according to the UN Security Council’s resolutions, adopted in accordance with Chapter VII of the UN Charter and the Recommendation of the Registry pursuant to the Agreement of 1 December 2004, which was also signed by the President of the High Judicial and Prosecutorial Council; it is particularly important that the High Judicial and Prosecutorial Council, an independent body competent to appoint national judges, was involved in the procedure preceding the appointment. 47. The Constitutional Court holds that the international judges who were members of the Panel which rendered the contested verdict were appointed in a manner and in accordance with a procedure which complied with the standards concerning a fair trial provided for in Article 6 of the European Convention. In addition, the [State Court Act 2000], the Agreement of 1 December 2004 and the decisions on [their] appointment created the prerequisites and mechanisms which secure the independence of [the] judges from interference or influence by the executive authority or international authorities. Judges appointed in this manner are obliged to respect and apply all the rules which generally apply in national criminal proceedings and which comply with international standards. Their term of office is defined and their activities are monitored during this period. The reasoning behind their appointment was the need to establish and strengthen national courts in the transitional period and to support the efforts of these courts in establishing responsibility for serious violations of human rights and ethnically motivated crimes. It is therefore aimed at securing the independence and impartiality of the judiciary and administering justice. Even the fact that the manner of appointment was changed by the subsequent Agreement of 26 September 2006, so that the High Judicial and Prosecutorial Council of Bosnia and Herzegovina has become responsible for the appointment of international judges, does not in itself automatically imply that their original appointments, in the manner provided for at the time of the contested verdicts, were contrary to the principles of independence of the court in terms of Article 6 § 1 of the European Convention. The Constitutional Court holds that the appellant failed to submit convincing arguments and evidence in support of the allegations relating to a lack of independence on the part of the international judges. As to the appellant’s allegations concerning the lack of independence of the national judge, on the ground that he is a person with ‘insufficient experience’, the Constitutional Court finds that these allegations are prima facie ill-founded and do not require any extensive examination. Taking all of the above into account, the Constitutional Court concludes that the appellant’s allegations concerning the lack of independence and related violation of the standards relating to the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention are unfounded. ... 60. One of the appellant’s key arguments refers to the relationship between the criminal proceedings in issue and Article 7 of the European Convention, namely the fact that, as the appellant stated, he was sentenced under the [2003 Criminal Code] rather than under the [1976 Criminal Code], valid at the time of the offence, which provided for a more lenient sanction. ... 65. In this particular case, the appellant acknowledges that, under the regulations applicable at the material time, the offence for which he was convicted constituted a criminal offence when it was committed. However, he expressly refers to the application of the substantive law in his case and examines primarily the concept of a ‘more lenient punishment’, i.e. ‘more lenient law’. He considers that the [1976 Criminal Code], in force when the criminal offence for which he was convicted was committed, and in respect of which, inter alia, the death penalty was prescribed for the severest forms, was a more lenient law than the [2003 Criminal Code], which prescribes a punishment of long-term imprisonment for the severest forms of the criminal offence in question. ... 69. In this context, the Constitutional Court finds that it is simply not possible to ‘eliminate’ the more severe sanction applicable under both the earlier and later laws, and apply only the other, more lenient, sanctions, with the effect that the most serious crimes would in practice be inadequately punished. However, the Constitutional Court will not provide detailed reasons or analysis of these regulations, but will focus on the exemptions to the obligations arising under Article 7 § 1 of the European Convention, which are regulated, as is generally accepted, by Article 7 § 2. 70. In such a situation, the Constitutional Court notes that Article 7 § 2 of the European Convention refers to ‘the general principles of law recognized by civilised nations’, and Article III (3) (b) of the Constitution of Bosnia and Herzegovina establishes that ‘the general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities.’ It follows that these principles constitute an integral part of the legal system in Bosnia and Herzegovina, even without the special ratification of Conventions and other documents regulating their application, and thus also include the 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former SFRY. 71. Further, the Constitutional Court draws attention to the fact that the Constitution of Bosnia and Herzegovina is part of an international agreement and, while this fact does not diminish the Constitution’s importance, it clearly indicates the position of international law within the legal system of Bosnia and Herzegovina, so that a number of international conventions, such as the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) and the Additional Protocols I-II (1977), have a status equal to that of constitutional principles and are directly applied in Bosnia and Herzegovina. It should be mentioned that the former SFRY was signatory to the said Conventions, and that Bosnia and Herzegovina, as an internationally recognised subject which declared its independence on 6 March 1992, accepted all of the Conventions ratified by the former SFRY and, thereby, the aforementioned Conventions, which were subsequently included in Annex 4, that is, the Constitution of Bosnia and Herzegovina. 72. The wording of Article 7 § 1 of the European Convention is limited to those cases in which an accused person is found guilty and convicted of a criminal offence. However, Article 7 § 1 of the European Convention neither prohibits the retrospective application of laws nor includes the non bis in idem principle. Further, Article 7 § 1 of the European Convention could not be applied to cases such as those referred to in the United Kingdom’s War Damages Act 1965, which amended with retrospective effect the common-law rule granting compensation for private property in certain wartime circumstances. 73. The Constitutional Court notes that Article 7 § 1 of the European Convention concerns criminal offences ‘under national or international law’. The Constitutional Court also notes, in particular, the interpretation of Article 7 provided in a number of texts dealing with this issue, which are based on the European Court’s position that a conviction resulting from a retrospective application of national law does not constitute a violation of Article 7 of the European Convention where such a conviction is based on an act which was a crime under ‘international law’ when committed. This position is particularly relevant in respect of the present case, and of similar cases, given that the main point of the appeal refers to the application of primarily international law, that is, the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) and the Additional Protocols I ‑ II (1977), rather than to the application of one or another text of criminal law, irrespective of their content or stipulated sanctions. 74. In addition, with regard to the retrospective application of criminal legislation, the Constitutional Court stresses that Article 7 of the European Convention was formulated immediately after World War II with the particular intention of encompassing the general principles of law recognised by civilised nations, where the notion of ‘civilised nations’ was adopted from Article 38 of the Statute of the International Court of Justice (ICJ), the case-law of which is generally recognized as the third formal source of international law. In other words, the Statute of the International Court of Justice is applicable in respect of member states of the ICJ, and the rules established by it are regarded as a source of law, which concern even municipal authorities. Both the Statute of the International Court of Justice and Article 7 of the European Convention exceed the framework of national law, and refer to ‘nations’ in general. Accordingly, the Constitutional Court holds that the standards for their application should be looked for in this context, and not merely within a national framework. 75. The Constitutional Court further notes that the travaux préparatoires refer to the wording in paragraph 2 of Article 7 of the European Convention, which is calculated to ‘make it clear that Article 7 does not have any effect on the laws which were adopted in certain circumstances after World War II and intended for punishment of war crimes, treason and collaboration with the enemy, and it is not aimed at either moral or legal disapproval of such laws’ (see X v. Belgium, no. 268/57, Yearbook 1 (1957); ... compare De Becker v. Belgium no. 214/56), Yearbook 2 (1958)). In fact, the wording of Article 7 of the European Convention is not restrictive and must be construed dynamically so to encompass other acts which imply immoral behaviour that is generally recognized as criminal under national laws. In view of the above, the United Kingdom’s War Crimes Act 1991 confers retrospective jurisdiction on the UK courts in respect of certain grave violations of the law, such as murder, manslaughter or culpable homicide, committed in German-held territory during the Second World War 76. In the Constitutional Court’s opinion, all of the above confirms that war crimes are ‘crimes according to international law’, given the universal jurisdiction to conduct proceedings, so that convictions for such offences would not be inconsistent with Article 7 § 1 of the European Convention under a law which subsequently defined and determined certain acts as criminal and stipulated criminal sanctions, where such acts did not constitute criminal offences under the law that was applicable at the time the criminal offence was committed. On 4 May 2000 the European Court of Human Rights issued a decision in the case of Naletilić v. the Republic of Croatia (no. 51891/99). It follows from that decision that the applicant was charged by the Prosecutor’s Office of the International Criminal Tribunal for the former Yugoslavia with war crimes committed in the territory of Bosnia and Herzegovina, and that he submitted complaints that were identical to those of the appellant in the present case, i.e. he called for the application of ‘more lenient law’. He argued that the Criminal Code of the Republic of Croatia stipulated a more lenient criminal sanction than the Statute of the International Criminal Tribunal for the former Yugoslavia, and called for application of Article 7 of the European Convention. In its decision, the European Court of Human Rights considered the application of Article 7 and emphasised the following: ‘As to the applicant’s contention that he might receive a heavier punishment by the ICTY than he might have received by domestic courts if the latter exercised their jurisdiction to finalise the proceedings against him, the Court notes that, even assuming Article 7 of the Convention to apply to the present case, the specific provision that could be applicable to it would be paragraph 2 rather than paragraph 1 of Article 7 of the Convention. This means that the second sentence of Article 7 paragraph 1 of the Convention invoked by the applicant could not apply. It follows that the application is manifestly ill-founded ... and, therefore, must be rejected ...’ 77. Finally, the Constitutional Court points out that the Nuremberg and Tokyo War Crimes Trials were conducted in 1945 and 1946, after World War II, in respect of crimes that were only subsequently, i.e. by the Geneva Convention, defined as acts amounting to war crimes, crimes against humanity, crimes of genocide, etc. Aggressive war was defined as an ‘international crime’, as confirmed by the International Law Commission in its Yearbook of 1957, Vol. II. Related discussions on the principle of nullum crimen nulla poena sine lege were also held at that time. This is also valid in respect of the 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former SFRY. 78. It is quite clear that the concept of individual criminal responsibility for acts committed contrary to the Geneva Convention or appropriate national laws is very closely related to that of human rights protection, since human-rights and related conventions concern the right to life, the right to physical and emotional integrity, prohibition of slavery and torture, prohibition of discrimination, etc. In the Constitutional Court’s opinion, it seems that an absence of protection for victims, i.e. inadequate sanctions for perpetrators of crime, is not compatible with the principle of fairness and the rule of law as embodied in Article 7 of the European Convention, paragraph 2 of which allows this exemption from the rule set out in paragraph 1 of the same Article. 79. In view of the above, and having regard to the application of Article 4a of the [2003 Criminal Code] in conjunction with Article 7 § 1 of the European Convention, the Constitutional Court concludes that, in the present case, the application of the [2003 Criminal Code] in the proceedings conducted before the [State Court] does not constitute a violation of Article 7 § 1 of the European Convention.” 16. The relevant part of the dissenting opinion of Judge Mato Tadić, attached to that decision, reads as follows: “Pursuant to Article 41 § 2 of the Rules of the Constitutional Court of Bosnia and Herzegovina ( Official Gazette of Bosnia and Herzegovina No. 60/50), I hereby give my separate dissenting opinion, in which I dissent from the opinion of the majority of the Judges of the Constitutional Court of Bosnia and Herzegovina in the aforesaid decision, for the following reasons: ... It is my opinion that the more lenient law should be applied before the domestic courts, i.e. the law which was in force when the criminal offence was committed. It is not easy to give an answer as to which law is more lenient, and this legal issue is much more complex than it appears. Taking into account around ten criteria that have been developed through theory and practice, one may conclude that in the instant case the prescribed penalty is a key factor which is relevant to the question of which law is the more lenient. Given that the same criminal offence existed (Article 142 of the [1976 Criminal Code]) under the criminal legislation of the former Yugoslavia, which Bosnia and Herzegovina inherited by its 1992 Decree, and which provided for a penalty of five years’ imprisonment or the death penalty, while the new criminal legislation applied in the instant case (Article 173 of the [2003 Criminal Code]) provides for a penalty of ten years’ imprisonment or long-term imprisonment, the basic question is which law is more lenient. At first sight, the [2003 Criminal Code] is more lenient, since it does not provide for the death penalty. However, taking into account that subsequent to the entry into force of the Washington Agreement and the Constitution of the Federation of Bosnia and Herzegovina in 1994, the death penalty was abolished, as was merely confirmed by the Constitution of Bosnia and Herzegovina from 1995, and taking into account the positions of the ordinary courts in Bosnia and Herzegovina, the Entities and the Brčko District (Supreme Court of the Federation of Bosnia and Herzegovina, Supreme Court of the Republika Srpska and Appellate Court of the Brčko District) that the death penalty was not to be pronounced (this position was also taken by the Human Rights Chamber in the case of Damjanović and Herak v. Federation of Bosnia and Herzegovina ), it appears that the 1992 law is more lenient. According to the above-mentioned court positions and the law, the maximum term of imprisonment that can be pronounced for this criminal offence is 20 years. Reference to Article 7 § 2 of the European Convention is irrelevant in the instant case. Article 7 § 2 of the European Convention has the primary task of providing a basis for criminal prosecution for violations of the Geneva Conventions before the international bodies established to deal with such cases, for example the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and to provide a legal basis for cases pending before domestic courts where the domestic legislation failed to prescribe the actions in question as criminal offences. In other words, this is the case where the legislature failed to include all of the elements characterising the said offences as referred to in the Geneva Conventions. This case does not raise that issue. The criminal offence in question existed in the domestic legislation, both when the offence was committed and at the time of trial, and therefore all of the mechanisms of criminal law and safeguarded constitutional rights should be consistently applied, including the rights guaranteed under the European Convention. The Naletelić case is irrelevant here, because it concerned an international prosecutor who accused [the applicant] before an international tribunal which had been established on a special basis and is vested with the powers defined by the Resolution of the United Nations and its Statute; it does not apply national legislation, but rather its own procedures and sanctions/penalties. If it were otherwise, a very small number of accused persons would respond to summons for proceedings before that court. Thus, I am of the opinion that the position of the European Court of Human Rights in the Naletelić case was absolutely correct, but that this position cannot be applied in the instant case. I consider that extensive reference to an international court is absolutely unnecessary, such as reference to its jurisdiction, etc., since the issue here is simply the domestic court conducting a trial in compliance with national legislation, and does not involve a case which was transferred to an international tribunal. For the most part, the Naletelić decision deals with history (Nuremberg, Tokyo) and, generally, an international aspect which is completely unnecessary in the instant case, because our national legislation, as pointed out above, incorporated this criminal offence and, when the offence was committed, the sanction was already prescribed, unlike the Nuremberg case. Moreover, the appellant is not challenging the aforesaid. It is in fact the appellant himself who pointed out that the national legislation had the incriminated acts coded as a criminal offence and sanctioned, and the appellant is only asking that it be applied. He also stated that, on account of the failure to apply Article 142 of the inherited [1976 Criminal Code] instead of the [2003 Criminal Code], there had been a violation of the Constitution and of Article 7 § 1 of the European Convention. Wishing to keep this explanation brief, I will recollect the opinion of Mr Antonio Cassese, the esteemed professor of Florence State University, who was appointed President of the International Criminal Tribunal in The Hague. In a 2003 document entitled ‘Opinion on the Possibility of Retroactive Application of Some Provisions of the New Criminal Code of Bosnia and Herzegovina’, Professor Cassese concluded as follows: ‘Finally, let us deal with the issue whether the [State Court] should apply the more lenient sanction in the event of a crime for which the new criminal code prescribes a graver penalty than that envisaged by the former law. The reply to this question can only be affirmative. This conclusion rests on two legal bases: first, there is a general principle of international law according to which, if a single crime is envisaged in two successive provisions with one imposing a less strict penalty, that penalty should be determined according to the favor libertatis principle; secondly, this principle is explicitly mentioned in Article 7 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, wherein it is stated that no heavier penalty shall be imposed than the one that was applicable at the time the criminal offence was committed. Accordingly, the [State Court] should always apply the more lenient penalty whenever there is a difference in length of penalty when the former is compared with the new criminal provision. It is clear that retroactive application of criminal code is related to the penalty only and not to other elements of this Article.’ ... For the aforesaid reasons, I could not agree fully with the opinion of the majority which is presented in this decision.” 17. On 12 June 2009 the applicant completed his sentence and left the country soon afterwards. C. The facts concerning Mr Damjanović 18. Mr Damjanović was born in 1966. He is still serving his sentence in Foča Prison. 19. On 2 June 1992, in the course of the war in Bosnia and Herzegovina, he played a prominent part in the beating of captured Bosniacs in Sarajevo, in an incident which lasted for one to three hours and was performed using rifles, batons, bottles, kicks and punches. The victims were afterwards taken to an internment camp. 20. On 17 October 2005 a Pre-Trial Chamber of the State Court decided to take over this case from the Sarajevo Cantonal Court, where it had been pending for years, in consideration of its sensitivity (the case concerned torture of a large number of victims) and the better facilities available for witness protection at the State Court (a higher risk of witness intimidation at the Entity level). It relied on the criteria set out in paragraph 40 below and Article 449 of the 2003 Code of Criminal Procedure. 21. On 26 April 2006 the applicant was arrested. 22. On 18 June 2007 a Trial Chamber of the State Court convicted him of torture as a war crime and sentenced him to eleven years’ imprisonment for that crime under Article 173 § 1 of the 2003 Criminal Code. An Appeals Chamber of the same court upheld that judgment on 19 November 2007. The second-instance judgment was served on the applicant on 21 December 2007. 23. On 20 February 2008 the applicant lodged a constitutional appeal. It was dismissed as out of time on 15 April 2009. | Both applicants were convicted by the Court of Bosnia and Herzegovina of war crimes committed against civilians during the 1992-1995 war. The first one complained in particular that he had not been afforded a fair hearing by an independent tribunal. He submitted that the adjudicating tribunal had not been independent within the meaning of that provision, notably because two of its members had been appointed by the Office of the High Representative for Bosnia and Herzegovina for a renewable period of two years. |
957 | State’s act on its own territory producing effect in another State | I. PARTICULAR CIRCUMSTANCES OF THE CASE 11. The applicant, Mr Jens Soering, was born on 1 August 1966 and is a German national. He is currently detained in prison in England pending extradition to the United States of America to face charges of murder in the Commonwealth of Virginia. 12. The homicides in question were committed in Bedford County, Virginia, in March 1985. The victims, William Reginald Haysom (aged 72) and Nancy Astor Haysom (aged 53), were the parents of the applicant ’ s girlfriend, Elizabeth Haysom, who is a Canadian national. Death in each case was the result of multiple and massive stab and slash wounds to the neck, throat and body. At the time the applicant and Elizabeth Haysom, aged 18 and 20 respectively, were students at the University of Virginia. They disappeared together from Virginia in October 1985, but were arrested in England in April 1986 in connection with cheque fraud. 13. The applicant was interviewed in England between 5 and 8 June 1986 by a police investigator from the Sheriff ’ s Department of Bedford County. In a sworn affidavit dated 24 July 1986 the investigator recorded the applicant as having admitted the killings in his presence and in that of two United Kingdom police officers. The applicant had stated that he was in love with Miss Haysom but that her parents were opposed to the relationship. He and Miss Haysom had therefore planned to kill them. They rented a car in Charlottesville and travelled to Washington where they set up an alibi. The applicant then went to the parents ’ house, discussed the relationship with them and, when they told him that they would do anything to prevent it, a row developed during which he killed them with a knife. On 13 June 1986 a grand jury of the Circuit Court of Bedford County indicted him on charges of murdering the Haysom parents. The charges alleged capital murder of both of them and the separate non-capital murders of each. 14. On 11 August 1986 the Government of the United States of America requested the applicant ’ s and Miss Haysom ’ s extradition under the terms of the Extradition Treaty of 1972 between the United States and the United Kingdom (see paragraph 30 below). On 12 September a Magistrate at Bow Street Magistrates ’ Court was required by the Secretary of State for Home Affairs to issue a warrant for the applicant ’ s arrest under the provisions of section 8 of the Extradition Act 1870 (see paragraph 32 below). The applicant was subsequently arrested on 30 December at HM Prison Chelmsford after serving a prison sentence for cheque fraud. 15. On 29 October 1986 the British Embassy in Washington addressed a request to the United States authorities in the following terms: "Because the death penalty has been abolished in Great Britain, the Embassy has been instructed to seek an assurance, in accordance with the terms of ... the Extradition Treaty, that, in the event of Mr Soering being surrendered and being convicted of the crimes for which he has been indicted ..., the death penalty, if imposed, will not be carried out. Should it not be possible on constitutional grounds for the United States Government to give such an assurance, the United Kingdom authorities ask that the United States Government undertake to recommend to the appropriate authorities that the death penalty should not be imposed or, if imposed, should not be executed." 16. On 30 December 1986 the applicant was interviewed in prison by a German prosecutor ( Staatsanwalt ) from Bonn. In a sworn witness statement the prosecutor recorded the applicant as having said, inter alia, that "he had never had the intention of killing Mr and Mrs Haysom and ... he could only remember having inflicted wounds at the neck on Mr and Mrs Haysom which must have had something to do with their dying later"; and that in the immediately preceding days "there had been no talk whatsoever [between him and Elizabeth Haysom] about killing Elizabeth ’ s parents". The prosecutor also referred to documents which had been put at his disposal, for example the statements made by the applicant to the American police investigator, the autopsy reports and two psychiatric reports on the applicant (see paragraph 21 below). On 11 February 1987 the local court in Bonn issued a warrant for the applicant ’ s arrest in respect of the alleged murders. On 11 March the Government of the Federal Republic of Germany requested his extradition to the Federal Republic under the Extradition Treaty of 1872 between the Federal Republic and the United Kingdom (see paragraph 31 below). The Secretary of State was then advised by the Director of Public Prosecutions that, although the German request contained proof that German courts had jurisdiction to try the applicant, the evidence submitted, since it consisted solely of the admissions made by the applicant to the Bonn prosecutor in the absence of a caution, did not amount to a prima facie case against him and that a magistrate would not be able under the Extradition Act 1870 (see paragraph 32 below) to commit him to await extradition to Germany on the strength of admissions obtained in such circumstances. 17. In a letter dated 20 April 1987 to the Director of the Office of International Affairs, Criminal Division, United States Department of Justice, the Attorney for Bedford County, Virginia (Mr James W. Updike Jr ) stated that, on the assumption that the applicant could not be tried in Germany on the basis of admissions alone, there was no means of compelling witnesses from the United States to appear in a criminal court in Germany. On 23 April the United States, by diplomatic note, requested the applicant ’ s extradition to the United States in preference to the Federal Republic of Germany. 18. On 8 May 1987 Elizabeth Haysom was surrendered for extradition to the United States. After pleading guilty on 22 August as an accessory to the murder of her parents, she was sentenced on 6 October to 90 years ’ imprisonment (45 years on each count of murder). 19. On 20 May 1987 the United Kingdom Government informed the Federal Republic of Germany that the United States had earlier "submitted a request, supported by prima facie evidence, for the extradition of Mr Soering". The United Kingdom Government notified the Federal Republic that they had "concluded that, having regard to all the circumstances of the case, the court should continue to consider in the normal way the United States request". They further indicated that they had sought an assurance from the United States authorities on the question of the death penalty and that "in the event that the court commits Mr Soering, his surrender to the United States authorities would be subject to the receipt of satisfactory assurances on this matter". 20. On 1 June 1987 Mr Updike swore an affidavit in his capacity as Attorney for Bedford County, in which he certified as follows: "I hereby certify that should Jens Soering be convicted of the offence of capital murder as charged in Bedford County, Virginia ... a representation will be made in the name of the United Kingdom to the judge at the time of sentencing that it is the wish of the United Kingdom that the death penalty should not be imposed or carried out." This assurance was transmitted to the United Kingdom Government under cover of a diplomatic note on 8 June. It was repeated in the same terms in a further affidavit from Mr Updike sworn on 16 February 1988 and forwarded to the United Kingdom by diplomatic note on 17 May 1988. In the same note the Federal Government of the United States undertook to ensure that the commitment of the appropriate authorities of the Commonwealth of Virginia to make representations on behalf of the United Kingdom would be honoured. During the course of the present proceedings the Virginia authorities informed the United Kingdom Government that Mr Updike was not planning to provide any further assurances and intended to seek the death penalty in Mr Soering ’ s case because the evidence, in his determination, supported such action. 21. On 16 June 1987 at the Bow Street Magistrates ’ Court committal proceedings took place before the Chief Stipendiary Magistrate. The Government of the United States adduced evidence that on the night of 30 March 1985 the applicant killed William and Nancy Haysom at their home in Bedford County, Virginia. In particular, evidence was given of the applicant ’ s own admissions as recorded in the affidavit of the Bedford County police investigator (see paragraph 13 above). On behalf of the applicant psychiatric evidence was adduced from a consultant forensic psychiatrist (report dated 15 December 1986 by Dr Henrietta Bullard) that he was immature and inexperienced and had lost his personal identity in a symbiotic relationship with his girlfriend - a powerful, persuasive and disturbed young woman. The psychiatric report concluded: "There existed between Miss Haysom and Soering a ‘ folie à deux ’, in which the most disturbed partner was Miss Haysom. ... At the time of the offence, it is my opinion that Jens Soering was suffering from [such] an abnormality of mind due to inherent causes as substantially impaired his mental responsibility for his acts. The psychiatric syndrome referred to as ‘ folie à deux ’ is a well-recognised state of mind where one partner is suggestible to the extent that he or she believes in the psychotic delusions of the other. The degree of disturbance of Miss Haysom borders on the psychotic and, over the course of many months, she was able to persuade Soering that he might have to kill her parents for she and him to survive as a couple. ... Miss Haysom had a stupefying and mesmeric effect on Soering which led to an abnormal psychological state in which he became unable to think rationally or question the absurdities in Miss Haysom ’ s view of her life and the influence of her parents. ... In conclusion, it is my opinion that, at the time of the offences, Soering was suffering from an abnormality of mind which, in this country, would constitute a defence of ‘ not guilty to murder but guilty of manslaughter ’ ." Dr Bullard ’ s conclusions were substantially the same as those contained in an earlier psychiatric report (dated 11 December 1986 by Dr John R. Hamilton, Medical Director of Broadmoor Hospital ), which was not however put before the Magistrates ’ Court. The Chief Magistrate found that the evidence of Dr Bullard was not relevant to any issue that he had to decide and committed the applicant to await the Secretary of State ’ s order for his return to the United States. 22. On 29 June 1987 Mr Soering applied to the Divisional Court for a writ of habeas corpus in respect of his committal and for leave to apply for judicial review. On 11 December both applications were refused by the Divisional Court (Lord Justice Lloyd and Mr Justice Macpherson ). In support of his application for leave to apply for judicial review, Mr Soering had submitted that the assurance received from the United States authorities was so worthless that no reasonable Secretary of State could regard it as satisfactory under Article IV of the Extradition Treaty between the United Kingdom and the United States (see paragraph 36 below). In his judgment Lord Justice Lloyd agreed that "the assurance leaves something to be desired": "Article IV of the Treaty contemplates an assurance that the death penalty will not be carried out. That must presumably mean an assurance by or on behalf of the Executive Branch of Government, which in this case would be the Governor of the Commonwealth of Virginia. The certificate sworn by Mr Updike, far from being an assurance on behalf of the Executive, is nothing more than an undertaking to make representations on behalf of the United Kingdom to the judge. I cannot believe that this is what was intended when the Treaty was signed. But I can understand that there may well be difficulties in obtaining more by way of assurance in view of the federal nature of the United States Constitution." Leave to apply for judicial review was refused because the claim was premature. Lord Justice Lloyd stated: "The Secretary of State has not yet decided whether to accept the assurance as satisfactory and he has certainly not yet decided whether or not to issue a warrant for Soering ’ s surrender. Other factors may well intervene between now and then. This court will never allow itself to be put in the position of reviewing an administrative decision before the decision has been made." As a supplementary reason, he added: "Secondly, even if a decision to regard the assurance as satisfactory had already been made by the Secretary of State, then on the evidence currently before us I am far from being persuaded that such a decision would have been irrational in the Wednesbury sense." (As to "irrationality" in the Wednesbury sense, see paragraph 35 below.) 23. On 30 June 1988 the House of Lords rejected the applicant ’ s petition for leave to appeal against the decision of the Divisional Court. 24. On 14 July 1988 the applicant petitioned the Secretary of State, requesting him to exercise his discretion not to make an order for the applicant ’ s surrender under section 11 of the Extradition Act 1870 (see paragraph 34 below). This request was rejected, and on 3 August 1988 the Secretary of State signed a warrant ordering the applicant ’ s surrender to the United States authorities. However, the applicant has not been transferred to the United States by virtue of the interim measures indicated in the present proceedings firstly by the European Commission and then by the European Court (see paragraphs 4 above and 77 below). 25. On 5 August 1988 the applicant was transferred to a prison hospital where he remained until early November 1988 under the special regime applied to suicide-risk prisoners. According to psychiatric evidence adduced on behalf of the applicant (report dated 16 March 1989 by Dr D. Somekh ), the applicant ’ s dread of extreme physical violence and homosexual abuse from other inmates in death row in Virginia is in particular having a profound psychological effect on him. The psychiatrist ’ s report records a mounting desperation in the applicant, together with objective fears that he may seek to take his own life. 26. By a declaration dated 20 March 1989 submitted to this Court, the applicant stated that should the United Kingdom Government require that he be deported to the Federal Republic of Germany he would consent to such requirement and would present no factual or legal opposition against the making or execution of an order to that effect. I. Mutual assistance in criminal matters 70. There is no way of compelling American witnesses to give evidence at a trial in the Federal Republic of Germany. However, such witnesses would normally, unless imprisoned, be free to appear voluntarily before a German court and the German authorities would pay their expenses. Furthermore, a United States Federal court may, pursuant to a letter rogatory or a request from a foreign tribunal, order a person to give testimony or a statement or to produce a document or other thing for use in a proceeding in a foreign tribunal (28 United States Code, section 1782). In addition, public documents, for example the transcript of a criminal trial, are available to foreign prosecuting authorities. | The applicant, a German national, was detained in a prison in England pending extradition to the United States of America (USA) to face murder charges for killing his girlfriend’s parents. He complained that, despite the diplomatic assurances, he risked being sentenced to death if extradited to the USA. He maintained in particular that, because of the "death row phenomenon" where people spent several years in extreme stress and psychological trauma awaiting to be executed, if extradited, he would be subjected to inhuman and degrading treatment and punishment. |
800 | Right to liberty and security (Article 5 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1949 and lives in Surrey. He has suffered from autism since birth. He is unable to speak and his level of understanding is limited. He is frequently agitated and has a history of self-harming behaviour. He lacks the capacity to consent or object to medical treatment. For over thirty years he was cared for in Bournewood Hospital (“the hospital”), a National Health Service Trust hospital. He was an in-patient at the Intensive Behavioural Unit (“IBU”) of the hospital from its inception in or around 1987. The applicant ’ s responsible medical officer (who had cared for him since 1977) was Dr M. (clinical director of learning disabilities, deputy medical director and consultant psychiatrist for psychiatry of learning disabilities). 10. In March 1994 he was entrusted on a trial basis to paid carers, Mr and Mrs E. , with whom he successfully resided until 22 July 1997. He was not formally discharged, and the hospital remained responsible for his care and treatment. From 1995 onwards the applicant attended on a weekly basis a day - care centre run by the local authority. A. Admission to the hospital – 22 July to 5 December 1997 11. On 22 July 1997 the applicant was at the day - care centre when he became particularly agitated, hitting himself on the head with his fists and banging his head against the wall. Staff could not contact Mr and Mrs E. and got in touch with a local doctor, who administered a sedative. The applicant remained agitated and, on the recommendation of the local authority care services manager (A. F. ) with overall responsibility for the applicant, he was taken to the accident and emergency unit at the hospital. 12. At the hospital, the applicant remained agitated and anxious and was received and assessed by Dr P. (acting consultant psychiatrist – learning disabilities services) as being in need of in-patient treatment. He was transferred, with the physical support of two nursing assistants, to the hospital ’ s IBU. He was recorded as making no attempt to leave. Having consulted, Dr P. and Dr M. considered that the best interests of the applicant required his admission for in-patient treatment. Dr M. did consider his committal under the Mental Health Act 1983 (“the 1983 Act”) but concluded that that was not necessary as the applicant was compliant and did not resist admission. The applicant was therefore admitted as an “informal patient”. Dr M. later confirmed (in her submissions in the judicial review proceedings referred to below) that, if the applicant had resisted admission, she would have detained him compulsorily under the 1983 Act as she was firmly of the view that he required in-patient treatment. 13. Dr M. ’ s personal attendance notes for that day record the reports she had received of extremely disturbed behaviour at the day-care centre on that day and previously; the suggestion by A. F. that the applicant may have been suffering from a cyclical mood disorder and the recommendation that the applicant be assessed to establish any action required; Dr M. ’ s detailed consultation throughout the day with the applicant ’ s local doctor, Dr P. , A. F. , ward staff and other care professionals; the conclusion that, given the escalation of behavioural problems, the applicant required readmission for “thorough investigation and treatment” but that he would not be “sectioned” as he was “quite compliant” and had “not attempted to run away”; the numerous unsuccessful attempts to contact the applicant ’ s carers; and the decision to discourage visits by the applicant ’ s carers as it risked causing them and the applicant distress. Her notes for the following day, 23 July 1997, recorded that the applicant was calm, had complied with all care needs and accepted the change without problem; that his carers were “happy with [the] suggestion not to visit for a few days”; and the clinical opinion that, given the reports of escalating behavioural problems and self-harm and the suggestion by A. F. of a cyclical mood disorder, time was needed to observe, assess and administer appropriate treatment. Various tests were proposed to rule out any “organic pathology”. The applicant was to be referred to the psychology and speech therapist for assessment and a care plan was to be drawn up as appropriate “for maintenance purposes on discharge”. His carers were to be made aware of the need not to visit until the team treating the applicant felt confident for them to do so. 14. In its letter dated 23 July 1997 to the applicant ’ s social worker (copied to Dr P.), the day-care centre enclosed a detailed report of the incident that had occurred the previous day and outlined serious behavioural issues to be considered by the applicant ’ s health care professionals before he could be allowed to return to the day-care centre. It was noted that the applicant ’ s outbursts had increased over the previous few months and that he had been finding it increasingly difficult to cope with his environment and group. A summary of the applicant ’ s behaviour and attendance at the day-care centre between January and July 1997 was also included. 15. On 18 August 1997 Dr M. prepared a detailed report on the applicant ’ s history, care and progress for the manager (learning disabilities) of the local health authority as a follow-up to their recent discussions regarding the applicant. Dr M. indicated that the hospital was coming to the conclusion that the applicant, as well as being autistic, suffered from a mood disorder, and noted that his discharge at that time would be against medical opinion. 16. On 22 August 1997 a consultant psychiatrist in learning disabilities (Dr G. ) assessed the applicant at the request of Mr and Mrs E. His report described the applicant as suffering from a severe learning disability, autistic traits and a possible cyclical mood disorder. That psychiatrist recommended further assessment of the applicant in the IBU and better cooperation between the hospital ’ s professional team, the day-care centre and Mr and Mrs E. 17. On 29 October 1997 the Court of Appeal indicated (see the proceedings detailed below) that the applicant ’ s appeal would be decided in his favour. Accordingly, on that day the applicant was detained in the hospital under section 5(2) of the 1983 Act (following receipt of a notice from a doctor in charge of an in-patient that an application ought to be made for the latter ’ s detention for, inter alia, treatment under section 3 of the 1983 Act, the patient may be detained for up to seventy-two hours to allow for that application to be processed ). On 31 October 1997 the applicant was admitted for treatment as an involuntary patient under section 3 of the 1983 Act (two medical practitioners having recently examined the applicant would have certified his detention for treatment as necessary). 18. On 2 November 1997 the applicant ’ s carers visited him for the first time since his readmission in July 1997. 19. On 4 November 1997 the applicant ’ s legal representatives applied for a review of his detention by a Mental Health Review Tribunal (“MHRT”). Legal aid was granted to instruct an independent psychiatrist to prepare a report. The psychiatric report, dated 27 November 1997, was prepared jointly by a consultant psychiatrist and a registrar in the psychiatry of learning disability, both attached to the Department of Psychiatry at the University of Cambridge. The psychiatrists recommended the applicant ’ s discharge because they were of the opinion that his mental disorder was “currently neither of a nature or degree to warrant continued detention in hospital, nor [was] it necessary for his health or safety or for the protection of others”. On 4 December 1997 the applicant ’ s representatives applied to the hospital managers for his release (section 23 of the 1983 Act), a meeting of the managers taking less time to convene than a meeting of the MHRT. 20. The multidisciplinary team responsible for the applicant ’ s care and treatment decided that he had settled enough to be managed at home, and on 5 December 1997 he was released on leave of absence (under section 17 of the 1983 Act) into the care of Mr and Mrs E. 21. On 9 December 1997 Dr P. prepared a report for the forthcoming managers ’ review meeting. He noted that the applicant ’ s discharge on 5 December 1997 under section 17 of the 1983 Act was to be complemented by weekly psychiatric outpatient follow-up appointments, continued medication and monitoring by a community nurse. Dr P. was hopeful that the community team and their consultant psychiatrist could take over the applicant ’ s care so that he could be formally discharged from the hospital. 22. On 12 December 1997 the hospital managers decided to formally discharge the applicant to the carers (section 23 of the 1983 Act). B. Correspondence between Dr M. and the applicant ’ s carers 23. The first letter from Dr M. to Mr and Mrs E. after the applicant ’ s admission to the hospital was dated 23 July 1997. Having noted the attempts made to contact them on 22 July 1997, Dr M. outlined in detail what had happened and how the applicant was progressing. Dr M. indicated that, while the aim was to discharge the applicant to them as soon as possible, she was unable to predict the length of his stay as it depended on the completion of all necessary investigations and assessments. Dr M. indicated that visits would be unwise until the hospital staff felt that it would be appropriate, in order to avoid the applicant thinking that he could go home with Mr and Mrs E. following each visit at a time when he was “not clinically fit for discharge”. Dr M. invited Mr and Mrs E. to contact her about meeting her the following week. 24. Dr M. sent a further detailed update on the applicant ’ s care, assessments and progress to Mr and Mrs E. on 31 July 1997. Having noted Mr and Mrs E. ’ s requests to staff to visit the applicant, Dr M. indicated that the current serious observational assessment would be prejudiced by such visits and suggested that the situation be reviewed the following week. Dr M. pointed out that the applicant was not clinically fit for discharge. 25. Since Mr and Mrs E. had expressed concerns to staff at the hospital about the applicant ’ s care and treatment, Dr M. sent a long letter to Mr and Mrs E. on 6 August 1997 in which she explained the clinical team ’ s responsibility to provide the applicant with the care and clinical input he required. In particular, Dr M. noted: “I would like to take the opportunity to stress, through this correspondence, that we, as a Clinical Team, within the [IBU], are here, primarily to provide the treatment for [the applicant] who was admitted under our care, as an emergency. It would be extremely irresponsible of us not to provide [the applicant] with the care and the clinical input that he deserves and is in need of. His disposal/discharge from within the unit is dependent ... on the Multidisciplinary Clinical Professionals ’ considered views, following their assessment and the work that they intend doing with [the applicant], specifically, in relation to his challenging behaviour and/or mental health needs. As I have stressed, in my earlier correspondence, these things do take time and unfortunately we have to be a little patient to allow the professionals some room and space to carry on with their work in the provision of care ... [The applicant] has been admitted to the [IBU] on an ‘ informal ’ basis and this is not a time-limited admission. I am not sure if you have misunderstood his status and are under the impression that perhaps he was admitted and held under ‘ the Mental Health Act ’. Even then, there is no ‘ one month ’ time - limit, as it all depends on the patient ’ s fitness for discharge ... On behalf of the Clinical Team, I would like to stress that [the applicant] is being treated within the [IBU] and once he is fit for discharge, he will be discharged back to the address from where he was admitted, with a ‘ Treatment Plan ’ which will include all aspects of his care and a ‘ maintenance plan ’ prescribed.” Given the ongoing treatment and assessments, it was not possible to specify a discharge date. Dr M. repeated her offer to meet Mr and Mrs E. to discuss the applicant ’ s care. 26. In a further letter of 2 September 1997, Dr M. confirmed to Mr and Mrs E. that the conclusions drawn from the assessments to date meant, and the recent clinical professionals ’ meeting had decided, that the applicant was to be “fully” referred for care and treatment to the IBU and that his stay was likely to be a long one. She invited Mr and Mrs E. to attend a clinical meeting about the applicant ’ s care and treatment on 18 September 1997 and offered to meet Mr and Mrs E. separately to discuss, inter alia, the subject of visits. 27. Mr and Mrs E. replied in a letter of 5 September 1997 that they could not agree with the suggested plan for the applicant and would be in touch again prior to the relevant meeting. By a letter dated 16 September 1997, Mr and Mrs E. confirmed that they would not be able to attend the meeting on 18 September 1997 as they were seeking legal advice. Dr M. responded by letter dated 19 September 1997 expressing regret that Mr and Mrs E. felt that their attendance at the clinical meeting could jeopardise the applicant ’ s position. In a separate letter of the same date, Dr M. outlined the results of the clinical meeting, including a recommendation that Mr and Mrs E. visit the applicant once a week, and requested them to contact her to arrange this. 28. On 20 October 1997 Dr M. reassured Mr and Mrs E. that the subject of them visiting the applicant had been discussed at the hospital at some length and encouraged Mr and Mrs E. to meet her to discuss the applicant ’ s needs. 29. Detailed behaviour management guidelines were issued on 27 November 1997 by the psychology service of the hospital to, among others, Dr M. , Mr and Mrs E. , the applicant ’ s social worker and other therapeutic services that were to be involved in the applicant ’ s future care. Appendix 1 was a detailed clinical description of the applicant ’ s mental state (autism and a cyclical mood disorder), needs and reactions prepared on the basis of extensive psychiatric and behavioural observations and assessments, with a view to achieving a global approach to his condition, treatment and care. Appendix 2 contained an extremely detailed “communication dictionary” which was designed to enhance communication with the applicant through voice, action and routine. Appendix 3 contained recording charts. 30. By a letter of 2 December 1997 to the applicant ’ s legal representatives, Dr M. acknowledged receipt of the guidelines of 27 November 1997 (described above) and explained the clinical team ’ s plans regarding the applicant ’ s release on leave of absence in the near future with a view to a possible full discharge at a later date. C. The applicant ’ s domestic proceedings 31. In or around September 1997, the applicant, represented by his cousin and “next friend”, applied for leave to apply for judicial review of the hospital ’ s decision to admit him on 22 July 1997, for a writ of habeas corpus and for damages for false imprisonment and assault ( a technical assault associated with his admission). 1. The High Court ’ s judgment of 9 October 1997 32. The High Court refused the application. It found that, although the 1983 Act provided a comprehensive statutory regime for those formally admitted to psychiatric care, section 131(1) of the 198 3 Act preserved the common - law jurisdiction in respect of informal patients. Since the applicant had not been “detained” but had been informally admitted and since the requirements of the common - law principle of necessity had been satisfied, his application was rejected. 2. The Court of Appeal ’ s judgment of 2 December 1997 ( R v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1998] 2 Weekly Law Reports 764). 33. Lord Woolf, Master of the Rolls, delivered the principal judgment. On the question of whether the applicant was “detained”, he noted that it was agreed that this was a question of objective fact which did not depend on the presence or absence of consent or knowledge. He considered that a person was detained in law if those who had control over the premises in which he was situated intended that he should not be permitted to leave and had the ability to prevent him doing so. He went on: “We do not consider that the [High Court] judge was correct to conclude that [the applicant] was ‘ free to leave ’. We think it is plain that, had he attempted to leave the hospital, those in charge of him would not have permitted him to do so. ... Mr and Mrs E. had looked after [the applicant], as one of the family, for over three years. They had made it plain that they wanted to take him back into their care. It is clear that the hospital was not prepared to countenance this. If they were not prepared to release [the applicant] into the custody of his carers, they were not prepared to let him leave the hospital at all. He was and is detained there.” 34. Lord Woolf also found that the right to detain a patient for treatment for mental disorder was to be found only in the 1983 Act, the provisions of which applied to the exclusion of the common - law principle of necessity. Section 131 which preserved the right to admit a patient informally applied only to a patient who had the capacity to and did consent to his admission. Since the applicant had been admitted for treatment without his consent and the other formalities required by the 1983 Act, his detention was unlawful: “It follows from our judgment that the whole approach of the [hospital] in this case was based on a false premise. It was based on the belief that they were entitled to treat [the applicant] as an in-patient without his consent as long as he did not dissent. That was a wrong approach. They were only allowed to admit him for treatment if they complied with the statutory requirements. ... [W]here [the 1983 Act] covers the situation, no necessity to act outside the statute can arise. The [hospital ’ s] powers to act under the common - law doctrine of necessity can arise only in relation to situations not catered for by [the 1983 Act].” 35. The Court of Appeal awarded nominal damages and granted leave to appeal to the House of Lords. 3. The House of Lords ’ judgment of 25 June 1998 ( R v. Bournewood Community and Mental Health NHS Trust, ex parte L. [1999] Appeal Cases 458 ). 36. The House of Lords granted leave to, among others, the Mental Health Act Commission to intervene in the proceedings. In its submissions to the House of Lords, the Commission outlined the beneficial consequences to patients of the Court of Appeal ’ s conclusion that persons in the applicant ’ s position were “detained” for the purposes of the 1983 Act, which included the application to such persons of the substantive and procedural safeguards of the Act. The Commission also described the survey it had completed since the Court of Appeal ’ s judgment by sending a questionnaire to all National Health Service Trust hospitals (and registered nursing homes). Sixty-two percent of those establishments responded, from which the Commission was able to submit that, if the Court of Appeal ’ s judgment were applied to patients such as the applicant, there would be an additional 22,000 detained patients resident on any one day and an additional 48,000 compulsory admissions per year under the 1983 Act. 37. The House of Lords gave judgment on 25 June 1998 and unanimously allowed the appeal. Lord Goff (with whom Lords Lloyd and Hope agreed) delivered the principal judgment. Lords Nolan and Steyn also agreed that the appeal should be allowed but for different reasons. 38. Having considered the drafting history of section 131 of the 1983 Act, Lord Goff disagreed with the Court of Appeal and concluded that section 131 applied to patients who consented as well as to compliant but incapacitated patients. He underlined, however, that the statutory history of the section, which put the matter beyond all doubt, appeared not to have been drawn to the attention of the Court of Appeal and that the Court of Appeal did not have the benefit, as did the House of Lords, of assistance from counsel appearing for the Secretary of State. As to the basis upon which a hospital was entitled to treat, and to care for, patients who were admitted as informal patients under section 131(1) but lacked the capacity to consent to such treatment or care, Lord Goff stated as follows : “It was plainly the statutory intention that such patients would indeed be cared for, and receive such treatment for their condition as might be prescribed for them in their best interests. Moreover, the doctors in charge would, of course, owe a duty of care to such a patient in their care. Such treatment and care can, in my opinion, be justified on the basis of the common - law doctrine of necessity ... ( Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1 ) It is not therefore necessary to find such justification in the [1983 Act] itself, which is silent on the subject. It might, I imagine, be possible to discover an implication in the statute providing similar justification; but even assuming that to be right, it is difficult to imagine that any different result would flow from such a statutory implication. For present purposes, therefore, I think it appropriate to base justification for treatment and care of such patients on the common - law doctrine.” 39. Lord Goff then considered whether the applicant had been “unlawfully detained” as alleged and as found by the Court of Appeal. He pointed out that for the tort of false imprisonment to be committed there must, in fact, be a complete deprivation of, or restraint on liberty: an actual and not a potential deprivation of liberty went towards constituting the tort. Lord Goff then turned to the facts and quoted extensively from the affidavit (sworn on 3 October 1997 ) of Dr M.: “At 11 o ’ clock on 22 July 1997 I was contacted by ... [the] social worker and [the applicant ’ s] case manager. She advised me that there had been an incident at Cranstock Day Centre, where [the applicant] had been attending since 1995, when [the applicant] had seriously self-harmed and was extremely disturbed. She said that he had to be sent to the Accident & Emergency Department and she requested assistance from the psychiatric services to assess [the applicant] with a view to admitting him if necessary. One of my team members, [Dr P. ], staff grade psychiatrist, attended the Accident & Emergency Department as requested. His notes state that he took a history from ... the team manager at Cranstock Day Centre who reported that since March 1997 [the applicant ’ s] episodes of self-injurious behaviour had increased in severity. On 22 July 1997 whilst he was at Cranstock he had been agitated, hyperventilating, pacing up and down and hitting himself on the head with his fists. He was also banging his head on the wall. The whole area had to be evacuated to avoid disturbance and assure the safety of others. He was given 4 mgs of Diazepam to try to calm him down at the time but this had no effect. The GP was therefore called who administered 5 mgs of Zimovane. However he still remained agitated in the Accident & Emergency Department. He was assessed and treated at A & E. [Dr P. ] later assessed [the applicant] as being agitated and very anxious. He noted redness of both his temples, that he was punching his head with both his fists at times and hyperventilating. [Dr P. ] assessed that [the applicant] required in-patient treatment and transferred [the applicant] to the Behavioural Unit. [Dr P. ] noted that [the applicant] ‘ makes no attempt to leave ’. I recorded that we considered whether it was necessary to detain [the applicant] under the Mental Health Act 1983 but it was decided that this was not necessary as he was, as I noted at the time, ‘ quite compliant ’ and had ‘ not attempted to run away ’. He was therefore admitted as an informal patient. If [the applicant] had resisted admission I would certainly have detained him under the [1983] Act as I was firmly of the view that he required in-patient treatment. This was clearly thought through and supported following discussion with [Dr P. ], ward staff, other professionals and the Care Services Manager. An appropriate framework of care and treatment was implemented.” 40. Lord Goff then noted how Dr M. had then “ ... described how Mr and Mrs E. were informed on 22 July of [the applicant ’ s] admission, as was [the applicant ’ s] next of kin. At first, with the agreement of Mr and Mrs E., it was arranged that they would not visit [the applicant] for a few days, in accordance with the usual clinical practice. On 23 July Dr M. wrote to Mr and Mrs E. and in her letter invited them to come and meet her the following week when it was her intention to discuss the possibility of phased visits, but they did not accept this invitation to meet her. On the same day an advocacy worker was appointed as [the applicant ’ s] advocate. [The applicant] was again assessed. A programme of tests and observations was then put into effect.” 41. Lord Goff continued to quote from Dr M. ’ s affidavit: “As [the applicant] is an informal patient there has never been any attempt to detain him against his will or carry out any tests, observations or assessments to which he indicated a dislike or with which he refused to cooperate. [The applicant] has always accepted his medication which has always been administered orally. He was also fully compliant when blood was taken from him for testing. He did not however cooperate with the attempts that were made to carry out a CT scan and EEG, which were necessary in view of his old history of fits and temporal lobe abnormality, on 5 and 6 August 1997 and so these tests were abandoned. [The applicant] cooperated to a certain extent with the speech therapy assessment which was carried out on 15 September 1997 and the occupational therapy assessment. However, as soon as he showed any signs of distress the assessments were postponed and reviewed. [The applicant] is accommodated on an unlocked ward and has never attempted to leave the hospital but has accepted the change in his environment very well and is not distressed by it ... It was, in my professional opinion, in [the applicant ’ s] best interests to be admitted on 22 July 1997 and it is also in his best interests to continue with in-patient treatment to prevent further deterioration of his mental health. His discharge at this point in time would therefore be against medical advice. At the time of and since admission [the applicant] has been fully compliant with treatment and never indicated that he wishes to leave the hospital. In view of this it has not been necessary to detain him under the Act ... If [the applicant] stopped cooperating or indicated a wish to leave then I would have to consider at that time whether his condition warranted detention under section 3 of the Act. As these circumstances have not so far arisen detention has not been necessary.” 42. Lord Goff considered that, in the light of the above account by Dr M., the following conclusions might be drawn: “The first is that, as I have already recorded, although [the applicant] had been discharged from hospital into the community on a trial basis, and on that basis had gone to live with Mr and Mrs E. as his paid carers, nevertheless he had not been finally discharged. It followed that the appellant trust remained responsible for his treatment, and that it was in discharge of that responsibility that the steps described by Dr M. were taken. The second is that when, on 22 July, [the applicant] became agitated and acted violently, an emergency in any event arose which called for intervention, as a matter of necessity, in his best interests and, at least in the initial stages, to avoid danger to others. Plainly it was most appropriate that the appellant trust, and Dr M. in particular, should intervene in these circumstances; certainly Mr and Mrs E., as [the applicant ’ s] carers, could not assert any superior position. Third, I have no doubt that all the steps in fact taken, as described by Dr M. , were in fact taken in the best interests of [the applicant] and, in so far as they might otherwise have constituted an invasion of his civil rights, were justified on the basis of the common - law doctrine of necessity. I wish to add that the latter statement is as true of any restriction upon his freedom of movement as then occurred, as it is of any touching of his person. There were times during the episode when it might be said that [the applicant] was ‘ detained ’ in the sense that, in the absence of justification, the tort of false imprisonment would have been committed. I have particularly in mind the journey by ambulance from the Day Centre to the Accident and Emergency Unit. But that journey was plainly justified by necessity, as must frequently be so in the case of removal to hospital by ambulance of unfortunate people who have been taken ill or suffered injury and as a result are incapacitated from expressing consent. I wish further to add that I cannot see that Dr M. ’ s statements to the effect that she would if necessary have taken steps compulsorily to detain [the applicant] under the Act of 1983 have any impact on the above conclusions. Those concerned with the treatment and care of mentally disordered persons must always have this possibility in mind although, like Dr M. , they will know that this power is only to be exercised in the last resort and they may hope, as in the present case, that it would prove to be unnecessary to exercise it. Such power, if exercised in accordance with the statute, is of course lawful. In the present case all the steps in fact taken by Dr M. were, in my opinion, lawful because justified under the common - law doctrine of necessity, and this conclusion is unaffected by her realisation that she might have to invoke the statutory power of detention. Finally, the readmission of [the applicant] to hospital as an informal patient under section 131(1) of the Act of 1983 could not, in my opinion, constitute the tort of false imprisonment. His readmission, as such, did not constitute a deprivation of his liberty. As Dr M. stated in paragraph 9 of her affidavit, he was not kept in a locked ward after he was admitted. And the fact that she, like any other doctor in a situation such as this, had it in her mind that she might thereafter take steps to detain him compulsorily under the Act, did not give rise to his detention in fact at any earlier date. Furthermore, his treatment while in hospital was plainly justified on the basis of the common - law doctrine of necessity. It follows that none of these actions constituted any wrong against [the applicant].” 43. For these reasons, Lord Goff allowed the appeal. He had two “subsidiary points”, the second one being as follows : “ ... the function of the common - law doctrine of necessity [lies] in justifying actions which might otherwise be tortious, and so has the effect of providing a defence to actions in tort. The importance of this was, I believe, first revealed in the judgments in Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1. I wish, however, to express my gratitude to counsel for the appellants ... for drawing to our attention three earlier cases in which the doctrine was invoked, viz. Rex v. Coate (1 772) Lofft 73, especially at p. 75, per Lord Mansfield, Scott v. Wakem (1862) 3 F. and F. 328, 333, per Bramwell B., and Symm v. Fraser (1863) 3 F. and F. 859, 883, per Cockburn CJ, all of which provide authority for the proposition that the common law permitted the detention of those who were a danger, or potential danger, to themselves or others, in so far as this was shown to be necessary. I must confess that I was unaware of these authorities though, now that they have been drawn to my attention, I am not surprised that they should exist. The concept of necessity has its role to play in all branches of our law of obligations – in contract (see the cases on agency of necessity), in tort (see Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1), and in restitution (see the sections on necessity in the standard books on the subject) – and in our criminal law. It is therefore a concept of great importance. It is perhaps surprising, however, that the significant role it has to play in the law of torts has come to be recognised at so late a stage in the development of our law.” 44. Lord Nolan, for his part, agreed with the Court of Appeal that the applicant had been detained: he referred to the contents of Dr M. ’ s long letter of 6 August 1997 and to the additional matters on which the Court of Appeal had relied in this respect (and quoted above). Nevertheless, he allowed the appeal as he was satisfied that “the trust and its medical staff behaved throughout not only in what they judged to be the best interests of [the applicant], but in strict accordance with their common - law duty of care and the common - law principle of necessity”. 45. Lord Steyn also allowed the appeal. He recognised that to uphold the decision of the Court of Appeal would be to ensure that a number of important protections applied to the applicant and that to allow the appeal would result in an indefensible gap in mental health law. However, he considered that it was possible, on a contextual interpretation of the 1983 Act, to allow the appeal. 46. In the first place, he found that the applicant had been detained: “It is unnecessary to attempt a comprehensive definition of detention. In my view, this case falls on the wrong side of any reasonable line that can be drawn between what is or what is not imprisonment or detention. The critical facts are as follows: (1) When on 22 July 199 7 at the Day Centre [the applicant] became agitated and started injuring himself, he was sedated and then physically supported and taken to the hospital. Even before sedation he was unable to express dissent to his removal to hospital. (2) Health care professionals exercised effective power over him. If [the applicant] had physically resisted, the psychiatrist would immediately have taken steps to ensure his compulsory admission. (3) In hospital staff regularly sedated him. That ensured that he remained tractable. This contrasts with the position when he was with carers: they seldom resorted to medication and then only in minimal doses. (4) The psychiatrist vetoed visits by the carers to [the applicant]. She did so, as she explained to the carers, in order to ensure that [the applicant] did not try to leave with them. The psychiatrist told the carers that [the applicant] would be released only when she, and other health care professionals, deemed it appropriate. (5) While [the applicant] was not in a locked ward, nurses closely monitored his reactions. Nurses were instructed to keep him under continuous observation and did so. Counsel for the Trust and the Secretary of State argued that [the applicant] was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of [the applicant], any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital. And if [the applicant] had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that [the applicant] was free to go is a fairy tale. ... In my view [the applicant] was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty”. 47. Secondly, he found that detention to be justified under the common - law doctrine of necessity: “It is now necessary to consider whether there was lawful authority to justify the detention and any treatment of [the applicant]. This is a matter of statutory construction. But it is important to approach the mental health legislation against the context of the principles of the common law. The starting - point of the common law is that when a person lacks capacity, for whatever reason, to take decisions about medical treatment, it is necessary for other persons, with appropriate qualifications, to take such decision for him: Re F. (Mental Patient: Sterilisation) [1990] 2 AC 1, at 55H, per Lord Brandon of Oakbrook. The principle of necessity may apply. For the purposes of the present case it has been assumed by all counsel that the requirements of the principle are simply that (1) there must be ‘ a necessity to act when it is not practicable to communicate with the assisted person ’ and (2) ‘ that the action taken must be such as a reasonable person would in all circumstances take, acting in the best interests of the assisted person ’ : Re F. , supra, per Lord Goff of Chieveley, at 75H. There was not unanimity on this point in Re F. But I am content to approach the matter in the same way as counsel did ... Against this common - law background the Percy Report recommended a shift from the ‘ legalism ’ whereby hospital patients were ‘ certified ’ by special procedures, to a situation in which most patients would be ‘ informally ’ received in hospital, the term ‘ informally ’ signifying ‘ without any legal formality ’. This was to be achieved by replacing the existing system ‘ by the offer of care, without deprivation of liberty, to all who need it and are not unwilling to receive it ’ : see Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency (1954-1957) ... The desired objective was to avoid stigmatising patients and to avoid where possible the adverse effects of ‘ sectioning ’ patients. Where admission to hospital was required compulsion was to be regarded as a measure of last resort. The Mental Health Act of 1959 introduced the recommended changes. Section 5(1) was the critical provision. ... Counsel appearing on behalf of [the applicant] accepted that the effect of section 5 was to leave in place the common - law principle of necessity as a justification for informally receiving in hospital or mental nursing homes compliant incapacitated patients. In 1982 Parliament substantially amended the Act of 1959. In 1983 Parliament enacted a consolidating statute with amendments, namely the Mental Health Act 1983. By section 131(1) of the Act of 1983 the provisions of section 5(1) of the Act of 1959 were re-enacted verbatim. ... Prima facie section 131(1) must be given the same meaning as section 5(1). On this basis, section 131(1) also preserved the common - law principle of necessity as a means of admitting compliant incapacitated individuals. But counsel for [the applicant] submitted that section 131(1), unlike its predecessor, only applies to consenting capacitated patients. He argued that contextual differences between the statutes of 1959 and 1983 required the court to interpret the language of section 131(1) of the Act of 1983 in a narrower sense than section 5(1) of the Act of 1959. ... On orthodox principles of statutory interpretation the conclusion cannot be avoided that section 131(1) permits the admission of compliant incapacitated patients where the requirements of the principle of necessity are satisfied. Having had the benefit of the fuller argument produced by the intervention of the Secretary of State, I have to accept that the view of the Court of Appeal on the meaning of section 131(1) cannot be upheld.” 48. Accordingly, the common- law doctrine of necessity had been preserved by section 131(1) of the 1983 Act and the applicant ’ s detention and treatment were justified on that basis. 49. Lord Steyn went on to note that the effect of the House of Lords ’ judgment was to leave compliant incapacitated patients without the safeguards enshrined in the 1983 Act: “This is an unfortunate result. The common - law principle of necessity is a useful concept, but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of the hospital psychiatrist and other health care professionals. It is, of course, true that such professionals owe a duty of care to patients and that they will almost invariably act in what they consider to be the best interests of the patient. But neither habeas corpus nor judicial review are sufficient safeguards against misjudgments and professional lapses in the case of compliant incapacitated patients. Given that such patients are diagnostically indistinguishable from compulsory patients, there is no reason to withhold the specific and effective protections of [the 1983 Act] from a large class of vulnerable mentally incapacitated individuals. Their moral right to be treated with dignity requires nothing less. The only comfort is that counsel for the Secretary of State has assured the House that reform of the law is under active consideration.” D. The Health Service Commissioner (“the Commissioner”) 50. In March 2000 Mr and Mrs E. complained to the Commissioner about the applicant ’ s readmission to hospital. The complaints subjected to investigation were: (a) that the clinical decision to admit the applicant on 22 July 1997 was unreasonable; and (b) that the clinical management of his admission was inadequate. The independent assessors investigated. In their report, they considered that the applicant ’ s admission to the IBU on 22 July 1997 was “probably unavoidable”. He had a significantly better quality of life with his carers and more serious consideration should have been given to sending him home on the day his carers had been located or, at least, the following day. The assessors considered that it was difficult to see why, even if it was necessary to retain him overnight, he was not discharged the following day and his subsequent evaluation conducted on an outpatient basis. The process of assessment of the applicant had been too long and resources should have been available to speed up that process. In this latter respect, the assessors did not believe that any of the clinicians were acting irresponsibly or maliciously and their main recommendation for the future was that admissions to the IBU be “strictly time-limited” and that adequate resources be made available to enable a multi-disciplinary assessment to be carried out if at all possible on an outpatient basis and, if not, as speedily as possible. 51. The Commissioner, in his report of 15 November 2001, agreed with the assessors ’ conclusions, adopted their recommendations and conveyed the hospital ’ s apologies to Mr and Mrs E. for the shortcomings identified. The hospital had also informed the Commissioner that, through the Intensive Assessment and Treatment Service, the assessors ’ recommendations for outpatient assessment had been implemented. | The applicant is autistic, unable to speak and his level of understanding is limited. In July 1997, while at a day centre, he started inflicting harm on himself. He was subsequently transferred to a hospital’s intensive behavioural unit as an “informal patient”. The applicant mainly alleged that his treatment as an informal patient in a psychiatric institution amounted to detention and that this detention had been unlawful, and that the procedures available to him for a review of the legality of his detention did not satisfy the requirements of Article 5 (right to liberty and security) of the Convention. |
124 | Minor’s exposure to violent arrest of parent | THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1998 and lives in Apsheronsk. A. The applicant ’ s father ’ s arrest 6. On 31 May 2008 the applicant ’ s father (B), a police officer employed by the Apsheronsk police department at the time, was arrested by the Krasnodar regional branch of the Federal Service for Drug Control (“the FSKN”), following a test purchase of drugs. The undercover operation had been organised by an FSKN unit in Tuapse and the Belorechensk unit of the Krasnodar regional department of the Federal Security Service. B ’ s car was searched and a bag containing money was seized. Criminal proceedings were brought against him on the same day by an FSKN investigator, A.F., on the basis of the record of the test purchase of drugs, which had been prepared by FSKN officers. B was charged with selling cannabis to E.N., an undercover officer of the FSKN unit in Tuapse, who had acted as a buyer. The prosecution alleged that B had handed the drugs over to E.N. on 30 May 2008 and had received money from him on 31 May 2008, immediately before his arrest. 7. The arrest was carried out in the presence of the applicant, who was nine years old at the time. On that day, B had taken her to school for an event marking the end of the school year. At about 8.45 a.m. the applicant, accompanied by B, left the school and was getting into their car when B was approached by E.N., with whom he had previously worked at the Apsheronsk police department, and they talked. The parties ’ accounts of the events which followed differ. 1. The applicant ’ s account of the events of 31 May 2008 8. According to the applicant, E.N. asked B to look after his bag while he went to buy cigarettes at a nearby kiosk. B took the bag and E.N. left. Several men then ran up to B. One of them knocked him to the ground and started beating him. The applicant jumped out of the car and shouted that they should stop beating her father. One of the men shouted at her: “Shut your mouth and get into the car!” The applicant, scared, obeyed. For some time she sat in the car watching her father being beaten up and arrested. She felt unwell and needed more air. She tried to get out of the car but the men held the doors of the car from the outside so that she could not get out. At some point, when they were no longer standing near the car, she opened the car door and ran home. When approaching her house she saw men she did not recognise coming out. That also scared her and she ran towards her grandmother ’ s house nearby. While running she started to feel giddy and thought that she would fall over. Her uncle, V.K., saw her in the street and took her to his home. She was in a state of shock and could not explain well what had happened. 9. The applicant submitted her father ’ s written statement. She also submitted her own statement, her mother ’ s and other witnesses ’ statements recorded by a lawyer, R.V., from the interregional NGO “Mothers in defence of the rights of detainees, defendants and convicts” ( межрегиональная общественная организация «Матери в защиту прав задержанных, подследственных и осужденных» ) and signed by the interviewees. 10. According to B ’ s statement of 20 July 2008, at 7.45 a.m. on 31 May 2008 he took his daughter A (the applicant) to school no. 1 for a school event. Shortly after 8 a.m. he received a call from E.N. asking where he was. He replied that he was at school with his child. When he and A came out of the school, E.N. was waiting for him. A got into their car, and he talked to E.N. Then E.N. asked B to look after his bag while he went to buy cigarettes at a nearby kiosk. E.N. left and B went back to his daughter, who was waiting for him to go home. As E.N. had not come back, B put the bag in the boot of the car and was about to get into the car himself. At that moment a car stopped nearby and several men wearing tracksuits jumped out. They knocked him to the ground and started kicking him. He tried to protect his face by covering it with his hands. Then they handcuffed him and lifted him from the ground. During the beating they tore his shirt. His daughter saw him being beaten. V.E., a deputy head of the FSKN unit in Tuapse, told him that he had been arrested for selling drugs. B asked V.E. to let A go home or back to her school teacher. V.E. refused. A herself tried to get out of the car but two officers, standing at either side of the car, blocked the car doors. When the officers opened the boot of his car, he saw that A was very frightened. He pleaded with V.E. and the others to let her go but they refused. He tried to calm her down and asked her to be patient. All of this lasted for about an hour. When the officers were busy and not looking, A got out of the car and ran away in the direction of her home. 11. According to the applicant ’ s statement of 15 August 2008 made in the presence of her mother and describing the events of 31 May 2008, a man ran up to B and pushed him in the back. B fell and the man started kicking him. B asked the men to let her go home or to call her mother so that she could come and fetch her, but the men would not listen. The applicant provided some details concerning the appearance of the men who had arrested B. 12. According to the statement given by the applicant ’ s mother on 2 August 2008, when leaving home for school at about 7.45 a.m. on 31 May 2008, her daughter A (the applicant) and her husband (B) had had no injuries and had not complained of any health problems. Later that morning she found her daughter at their relatives ’ home. She was in a state of shock, unable to speak and having breathing difficulties. She was shaking, and her hands and face were trembling. The FSKN officers brought her husband home in a car that morning, in order to carry out a search. He was handcuffed. His jeans were dirty and dusty. His shirt was open, torn in some places and the buttons had been ripped off. His face was pale. 13. According to a statement of 2 August 2008 given by witness R.G., an electrician of the limited liability company Energoservis, at about 8.30 a.m. on 31 May 2008 he was checking the traffic lights at the pedestrian crossing near school no. 1. After replacing a light bulb, he climbed down from the traffic lights and saw police officer B approaching a car from the driver ’ s door side. A girl was sitting in the back seat of the car. At that moment an FSKN officer, S.K., wearing a blue tracksuit, approached B and hit him from behind so that he fell face down, and started kicking him. B was trying to protect himself from the blows by covering his head with his hands. S.K. did not stop until someone shouted at him to do so. The girl was also shouting. An FSKN chief officer and another man were present when S.K. was beating B. Immediately thereafter R.G. left in his company car to check other traffic lights. R.G. knew the names of the police officers because he had worked on the electrical system at the local police station and the FSKN premises. 14. According to a statement of 15 August 2008 given by V.K., a police officer of the Apsheronsk police department and B ’ s cousin, on his way home after work at about 10.30 a.m. on 31 May 2008 he met B ’ s daughter, A, who was running somewhere. She saw him and stopped and told him that someone was beating her father. She was very frightened, stuttering and gasping for air. V.K. took her to his home and called her mother. 15. According to a statement of 15 August 2008 given by G.A., the applicant ’ s violin teacher, before the events of 31 May 2008 the applicant had been a sociable, cheerful, hardworking, able and promising student. After those events she became slow and reserved, as opposed to the quick learner she had been before. She became tired easily and wanted to abandon her violin studies. 16. The applicant ’ s mother submitted photographs of the shirt B had been wearing during his arrest. Except for three buttons on the lower part of the shirt, the other buttons on the shirt were missing. The shirt was torn in the places where the buttons had been. 2. The Government ’ s account of the events of 31 May 2008 17. According to the Government, no physical force was used against B during his arrest and the applicant was not treated in the way alleged by her. They referred to records from the detention facility in which B had been detained after his arrest (see paragraph 27 below), and to “explanations” submitted by FSKN officers S.K., V.D., A.O., V.E., E.N. and S.S. (see paragraphs 24, 36 and 38 below), Federal Security Service officer S.P. (see paragraph 39 below), Apsheronsk police officers K.A. and M.I. (see paragraph 37 below), attesting witnesses A.Sh. and P.M. (see paragraphs 31 and 35 below), and FSKN officer A.Z., who had carried out the FSKN internal investigation (see paragraph 40 below). B. State of the applicant ’ s health after the events of 31 May 2008 18. The applicant described her state of health after the incident of 31 May 2008 as follows. She started screaming at night, wetting herself and suffering panic attacks when left alone. She stopped communicating with other children, became reserved, lost her vivaciousness, had difficulties speaking and developed a tremor affecting her face and limbs. She lost her interest in music, despite having previously been a successful violin student. 19. On 3 June 2008 the applicant was examined by a neurologist and diagnosed with a neurological disorder and neurosis-like enuresis. On 6 June 2008 she was examined by a psychologist, to whom she complained that her stress had caused screaming at night, fears and unsociability. She was diagnosed with post ‑ traumatic stress disorder, high levels of anxiety and fixation on the stressful situation. The diagnosis of post-traumatic stress disorder was confirmed on 25 June 2008 by children ’ s psychiatrists and psychologists at Specialised Clinical Psychiatric Hospital no. 1 in Krasnodar and the Krasnodar regional children ’ s hospital. On the same day a neurologist from the regional children ’ s hospital also diagnosed her with neurogenic hyper ‑ reflective urinary bladder. A cardiologist from the same hospital confirmed her previously known diagnosis of mitral valve prolapse. She received out-patient treatment and was supervised at the Apsheronsk central district hospital. She was again seen by doctors for her post ‑ traumatic stress disorder in July and August 2008. 20. It follows from a record of the applicant ’ s statements to a lawyer of 12 October 2017 that her state of health improved after her father ’ s release. Her enuresis almost ceased but her nightmares continued for about two more years. She confirmed that she was currently not suffering any health problems. 21. According to a preliminary conclusion of psychologist D.S. from “Independent Expert Examination Bureau Versia ” based in Moscow and St Petersburg, who interviewed the applicant on 15 February 2018 and examined her medical records, there could have been a cause-and-effect relationship between the events of 31 May 2008 and the medical condition she developed immediately thereafter, which lasted for more than two years. In order to substantiate such a conclusion, complex psychological and psychiatric examinations needed to be carried out on the applicant with the involvement of her parents. A psychiatrist would be competent to carry out a clinical assessment of the consequences of the impact which the events of 31 May 2008 had had on her health. D.S. provided details of the cost and duration of the proposed examination. 22. An “experimental psychological examination” was carried out on the applicant by psychologist D.T. from the non-commercial organisation “Sotsialnaya Sfera” based in Nizhniy Novgorod. According to D.T. ’ s report of 7 March 2018, the results of the examination could be interpreted as indicating the presence of elements of post-traumatic stress disorder and a number of other conditions (high level of anxiety and low level of adaptability, “sub-depression or masked depression” and experiencing phobic disorders) as a consequence of the events of 31 May 2008 and the ensuing inquiry. C. Inquiry by the investigating authority 23. On 10 July 2008 the applicant ’ s mother lodged an application with the Apsheronsk district prosecutor ’ s office, complaining that the FSKN officers had beaten up her husband, B, in the presence of her daughter, A, which had caused harm to A ’ s health. B had not resisted arrest. His clothes had been torn during the beatings. A had been kept in a car and had thus been deprived of her liberty. The application was transferred to the Belorechenskiy inter ‑ district unit of the investigative committee at the Krasnodar regional prosecutor ’ s office (the “investigative committee”), which carried out a pre ‑ investigation inquiry. 24. On 10 July 2008 FSKN officers S.K., V.D. and A.O., who had apprehended B, and deputy head of the FSKN unit in Tuapse V.E., who had been present at the time, submitted identical written “explanations” to the head of the investigative committee, claiming no physical force had been applied to B during his arrest. They stated that they had apprehended B near his car in which his daughter, A, had been sitting, and that after the arrest B himself had forced her to get out of the car and sent her home. 25. Relying on the FSKN officers ’ explanations, on 14 July 2008 investigator M.V. refused to institute criminal proceedings against them on the grounds that their actions lacked the elements of a crime under Article 286 of the Criminal Code (abuse of power). The investigator noted that given A ’ s young age and the fact that she suffered from heart disease, her father ’ s arrest as such could have provoked her post-traumatic stress disorder. 26. The investigator ’ s decision was annulled as unlawful and unfounded, and an additional pre-investigation inquiry was ordered. 27. The investigator obtained records from the temporary detention facility at the Tuapse police station, in which B had been detained after his arrest. According to those records, B had not made any complaints, had not asked for medical aid and no injuries on him had been recorded. 28. The investigator interviewed the applicant and her mother, V.K. and his wife, G.A. and A.Sh. 29. V.K., a police officer of the Apsheronsk police department, stated that at about 10.30 a.m. on 31 May 2008 he was going home after his shift. He already knew about his cousin B ’ s arrest by FSKN officers. He saw B ’ s daughter, A, running down the street. She was frightened. She told him that some people were beating her father. According to V.K. ’ s wife, an investigator at the Apsheronsk police department, she had been at home at about 10 a.m. on 31 May 2008. At some point thereafter her husband came home with A, who was frightened and in a state of shock. 30. According to G.A., the applicant ’ s violin teacher, after the events of 31 May 2008 the applicant, previously a successful student and winner of a regional competition, was unable to play the violin as before. 31. According to A.Sh. (interviewed on 19 August 2008), on 30 May 2008 he was approached by two individuals who asked him to participate in a test purchase operation as an attesting witness. He agreed. The operation lasted two days. On 31 May 2008 he witnessed B ’ s arrest near school no. 1. An FSKN officer, E.N., handed over a bag containing money to B, after which B was approached by several persons in civilian clothing who showed him their documents and took him to their car. There was another car nearby in which a girl was sitting. B told the girl quickly to go home. The FSKN officers did not shout at the girl, did not close the doors of the car in which she was sitting, or block her way out. About fifteen minutes later they started searching the car and the girl came out. She was frightened but was not hysterical and did not cry. She walked away and then ran. The officers did not use any physical force against B. 32. On 21 August 2008 investigator M.V. again refused to institute criminal proceedings against the FSKN officers on the grounds that their actions lacked the elements of a crime under Article 286 of the Criminal Code. He stated that it had not been established that physical force had been used against B or that A had been forcibly kept in a car. The doors of the car had been open and she had been able to leave the car on her own afterwards. No physical or psychological violence or threats had been used against her. The FSKN officers ’ presence near the car had not obstructed her freedom of movement. After she had run away, she had not been pursued and there had been no attempts to return her in order to hold her in the car and restrict her liberty. Having taken note of medical certificates concerning A ’ s state of health after the events of 31 May 2008, the investigator stated that the FSKN officers ’ actions aimed at arresting A ’ s father, the uncertainty of what exactly had been going on and how to act in such a situation, the mistaken assessment of the police officers ’ behaviour as deliberate restriction of her freedom of movement, together with A ’ s well-developed imagination and sensitivity, had served as a powerful source of stress to her, which could have caused her subsequent health disorder. 33. The investigator ’ s decision was annulled again and an additional round of the pre-investigation inquiry was ordered. 34. Investigator M.V. obtained the transcript of B ’ s examination by an investigator of the investigative committee in the presence of a lawyer on 24 July 2008. According to B ’ s statement, S.K. and other FSKN officers had knocked him to the ground, delivered several blows to his torso and handcuffed him. While apprehending him they had torn his shirt. B had not resisted arrest. The blows he had received had not left bruises on his body. 35. On 22 August 2008 investigator M.V. interviewed P.M., another attesting witness of the test purchase of drugs carried out in relation to B. According to P.M. ’ s explanations, which were essentially similar to those of A.Sh. (see paragraph 31 above), the arresting officers were in civilian clothing. B behaved calmly, his shirt was unbuttoned but not damaged, and there were no injuries on him. B talked to [A] firmly. The FSKN officers asked him why he was ordering her to go home, stating that they could take her along with him when going to his house to carry out a search. B disagreed. 36. According to an operational officer of the FSKN unit in Tuapse, E.N., who acted as a buyer in the drugs test-purchase operation (interviewed by investigator M.V. on 24 August 2008), on 30 May 2008 B gave him drugs and they agreed that he would pay B the following day. The transfer was watched by the attesting witnesses from a car. At about 8.30 a.m. on 31 May 2008 near school no. 1, after a telephone conversation between them, E.N. handed over a bag with money to B. B ’ s daughter was sitting in a car nearby. After the transfer of the money, E.N. and B were arrested by approximately eight persons in civilian clothing who had jumped out of two cars. They introduced themselves and produced their documents. They were from the FSKN and the Federal Security Service. No physical force, strong ‑ arm tactics or holds were used against B during his arrest. B behaved calmly and did not resist arrest. No physical or psychological violence or threats were used against B ’ s daughter. Nobody blocked the doors of the car in which she was sitting. 37. According to Apsheronsk police officers K.A. (interviewed on 22 August 2008) and M.I. (interviewed on 1 September 2008), on 31 May 2008 they were passing by school no. 1 in a car and saw their colleague, B. They stopped, got out of the car and walked towards him. Their way was blocked by several persons in civilian clothing who explained that they could not go any further since there was an operation underway. B was about ten metres away. His shirt was open and apparently slightly torn. The buttons on the shirt were missing. They did not see any bodily injuries on B. The situation was calm, and they left. 38. According to FSKN officer S.S. (interviewed on 24 August 2008), on 31 May 2008 he arrived at the place of the arrest after B ’ s apprehension and went to B ’ s house together with his colleagues. He saw the applicant approaching her house and then going away. 39. According to S.P., an operational officer of the Belorechensk unit of the Krasnodar regional department of the Federal Security Service (interviewed by investigator R.Z. from the investigative committee on 29 August 2008), who had been present during B ’ s arrest, physical force was used against B because he had been trying to flee the scene of the crime. The force used was necessary and not excessive, that is it did not involve B being beaten up. B ’ s daughter was sitting in B ’ s car. B was invited to inform his wife that she should come and take the girl away. However, B insisted that the girl should run home. The girl listened to her father and ran home. No one held her or chased her. 40. On 29 August 2008 investigator M.V. also interviewed A.Z., a senior operational officer of the internal security unit of the FSKN ’ s Krasnodar regional branch, who had carried out (from 30 July 2008 to 7 August 2008) an internal investigation following the complaint lodged by the applicant ’ s mother with the FSKN. A.Z. related his findings as follows. According to explanations received from FSKN officers S.K., V.D., A.O. and V.E., as well as individuals P.M., I. and G., B was not beaten up during his arrest, and A was not held forcibly in a car. B himself ordered her to get out of the car and she ran away. No one chased her or used measures of psychological influence against her. R.G., an electrician working for Energoservis, was checking traffic lights at the intersection near the place of the arrest. He confirmed having seen FSKN officer S.K. apprehending B and delivering several blows to his body. However, given that the director of Energoservis had not “officially” confirmed whether R.G. had been working that day, and that R.G. had been registered since 25 February 2007 as a drug user and had been repeatedly arrested by the FSKN for administrative offences involving drugs consumption, he could have given false statements aimed at discrediting the FSKN officers. According to a “specialist” consulted in relation to A ’ s medical documents, A was highly sensitive, emotionally unstable, selective in her contacts, and had a high level of anxiety. Taking into account her pre-existing neurological pathology, even a minor stressful situation, especially involving her father, would have sufficed to cause her psychological trauma. Her father might not necessarily have been beaten up in her presence. The fact that she had been in a car for a long time was irrelevant for the stress she had suffered. Therefore, the internal investigation did not establish the FSKN officers ’ guilt in relation to the temporary damage to A ’ s health which had occurred during B ’ s arrest. 41. On 1 September 2008, relying on the above material and using the same reasoning as in his previous decision, investigator M.V. refused to institute criminal proceedings against FSKN officers S.K., V.D., A.O., V.E., E.N. and S.S. He added that in the absence of intent to harm A ’ s health, the FSKN officers ’ lawful and justified actions in arresting B lacked the elements of a crime. D. Judicial review of the decision not to investigate 42. In proceedings conducted under Article 125 of the Code of Criminal Procedure on 12 September 2008, the Apsheronsk District Court dismissed an appeal lodged by the applicant ’ s mother against the investigator ’ s decision of 1 September 2008, holding that the decision had been lawful and well ‑ founded because it was supported by a comprehensive and objective pre ‑ investigation inquiry and complied with the Code of Criminal Procedure. On 22 October 2008 the Krasnodar Regional Court upheld the District Court ’ s decision on the applicant ’ s appeal. It stated that in certain circumstances force could be used lawfully by law-enforcement officers. Moreover, no injuries had been recorded on B. The conclusion of the FSKN internal investigation about the lack of guilt on the part of the FSKN officers in the applicant ’ s temporary health disorder had been based on a specialist ’ s opinion concerning her reaction to a conflict situation. The District Court had therefore rightly assessed the investigator ’ s refusal to institute criminal proceedings. E. Termination of the criminal proceedings against B 43. On 30 December 2009 investigator R.K. from the investigative committee of the Krasnodar regional prosecutor ’ s office terminated the criminal proceedings against B for lack of the elements of a crime in his actions, on the grounds that evidence in the case had been obtained unlawfully. The original copy of the record of the test purchase of drugs, on the basis of which the criminal proceedings had been instituted, was missing. The available copy of the record was different from the original (in particular, indicating a different place at which E.N. had handed over the drugs to the FSKN officers) and therefore fictitious. In order to establish the circumstances of the drugs sale, investigator R.K. questioned P.M., one of the attesting witnesses to the sale of drugs. According to P.M. ’ s witness statement, he had testified falsely, at the request of the FSKN officers, to having seen the transfer of drugs from B to E.N. and from E.N. to the FSKN officers on 30 May 2008. That day P.M. had not met the FSKN officers and had not witnessed any transfers of drugs. On 31 May 2008 FSKN officer S.S. had taken him and another attesting witness, A.Sh., to a place near school no. 1 in Apsheronsk. When they had arrived, B had been standing handcuffed near a car. There had been a bag containing money in the car. P.M. had not seen who had put it there. Then they had gone to B ’ s home in order for a search to be carried out, but they had not been let in by B ’ s wife. They had gone to the FSKN office where P.M. had been shown a plastic bag and had been told that the bag with drugs had been sold by B to E.N., who had then handed it over to the FSKN officers. P.M. remembered signing documents at the FSKN officers ’ request without reading them. 44. Investigator R.K. noted that there were no video recordings or any other evidence which could objectively confirm that B had transferred drugs to E.N. Therefore, it was impossible to establish the circumstances of a sale of drugs. Furthermore, the criminal proceedings against B had been instituted by investigator A.F. in breach of Article 151 of the Code of Criminal Procedure, which provided that criminal cases concerning crimes committed by police officers were to be investigated by investigative committees of the prosecutor ’ s office. The FSKN officers had been aware of B ’ s status as a police officer. Therefore, the investigative actions carried out by the FSKN investigator A.F. had been unlawful and the evidence obtained had been inadmissible. | This case concerned the applicant’s allegation that she had been traumatised by witnessing her father’s violent arrest by the police when she was nine years old. The applicant argued in particular that the arrest had taken place near her school and therefore the authorities should have anticipated the likelihood of her being present. She also alleged that the pre investigation inquiry into the incident had been superficial and inadequate. |
929 | Impression of independence | I. Circumstances of the case 6. The applicant, Alexander Findlay, is a British citizen who was born in 1961 in Kilmarnock, Scotland, and now lives in Windsor, England. 7. In 1980 he joined the British army and became a member of the Scots Guards. His service was due to terminate in October or November 1992 when he would have received a resettlement grant and, at the age of sixty, an army pension. 8. In 1982 Mr Findlay took part in the Falklands campaign. During the battle of Mount Tumbledown he witnessed the death and mutilation of several of his friends and was himself injured in the wrist by a mortar-shell blast. According to the medical evidence prepared for his court martial (see paragraphs 11-13 below), as a result of these experiences he suffered from post-traumatic stress disorder ("PTSD"), which manifested itself by flashbacks, nightmares, feelings of anxiety, insomnia and outbursts of anger. This disorder was not diagnosed until after the events of 29 July 1990 (see paragraph 10 below). 9. In 1987 he sustained an injury during training for service in Northern Ireland when a rope which he was climbing broke and he fell to the ground, severely damaging his back. This injury was extremely painful and affected his ability to perform his duties, which, again according to the medical evidence, led him to suffer from feelings of stress, guilt and depression. 10. In 1990 the applicant, who had become a lance-sergeant, was sent with his regiment to Northern Ireland. On 29 July 1990, after a heavy drinking session, he held members of his own unit at pistol point and threatened to kill himself and some of his colleagues. He fired two shots, which were not aimed at anyone and hit a television set, and subsequently surrendered the pistol. He was then arrested. 1. The medical evidence 11. On 31 July 1990 an ex-naval psychiatrist, Dr McKinnon, examined Mr Findlay and found that he was responsible for his actions at the time of the incident. However, a combination of stresses (including his back injury and posting to Northern Ireland ) together with his heavy drinking on the day, had led to an "almost inevitable" event. Dr McKinnon recommended "awarding the minimum appropriate punishment". Following this report, the decision was taken to charge Mr Findlay with a number of offences arising out of the incident on 29 July (see paragraph 14 below). 12. In order to establish that he was fit to stand trial, at the request of the army he was examined on two occasions by Dr Blunden, a civilian consultant psychiatrist who had been employed by the Ministry of Defence since 1980. In her report of January 1991, Dr Blunden confirmed that Mr Findlay was fit to plead and knew what he was doing at the time of the incident. However, his chronic back problem (which caused him to be frustrated and depressed at not being fit for duty in his Northern Ireland posting) together with "his previous combat stresses and a very high level of alcohol ... combined to produce this dangerous behaviour". In her second report, of March 1991, she explained that the applicant had reacted to the stress caused by his back problems in the way he did on 29 July 1990 because of his experiences in the Falklands war. Whilst she did not clearly state that he suffered from PTSD, she confirmed that similar patterns of behaviour frequently occurred at a late stage in those who experienced this disorder. She confirmed that the consumption of alcohol on the relevant day was a result of his condition and not a cause of it. 13. Mr Findlay was also examined by Dr Reid, at the request of his (Mr Findlay ’ s) solicitor. Dr Reid diagnosed him as suffering from PTSD as a result of his service in the Falklands. 2. The composition of the court martial 14. The position of "convening officer" (see paragraphs 36-41 below) for the applicant ’ s court martial was assumed by the General Officer Commanding London District, Major General Corbett. He remanded Mr Findlay for trial on eight charges arising out of the incident of 29 July 1990 and decided that he should be tried by general court martial. 15. By an order dated 31 October 1991, the convening officer convened the general court martial and appointed the military personnel who were to act as prosecuting officer, assistant prosecuting officer and assistant defending officer (to represent Mr Findlay in addition to his solicitor) and the members of the court martial (see paragraph 37 below). 16. The court martial consisted of a president and four other members: (1) the president, Colonel Godbold, was a member of London District staff (under the command of the convening officer: see paragraph 14 above). He was appointed by name by the latter and was not a permanent president; (2) Lieutenant-Colonel Swallow was a permanent president of courts martial, sitting in the capacity of an ordinary member. He had his office in the London District Headquarters. He was appointed by name by the convening officer; (3) Captain Tubbs was from the Coldstream Guards, a unit stationed in London District. His reporting chain was to his officer commanding, his commanding officer and the Brigade Commander, after which his report could, in exceptional circumstances, go to the convening officer; he was a member of a footguard unit and the convening officer, as General Officer Commanding, was responsible for all footguard units. He was appointed to the court martial by his commanding officer; (4) Major Bolitho was from the Grenadier Guards, also a footguard unit stationed in London District. The convening officer was his second superior reporting officer. He was appointed to the court martial by his commanding officer; (5) Captain O ’ Connor was from the Postal and Courier Department, Royal Engineers (Women ’ s Royal Army Corps), which is under the direct command of the Ministry of Defence and is administered by the London District. She was appointed by her commanding officer. In summary, all of the members of the court martial were subordinate in rank to the convening officer and served in units stationed within London District. None of them had legal training. 17. The assistant prosecuting and defending officers were both officers from the Second Scots Guards stationed in the London District and had the same reporting chain as Captain Tubbs (see paragraph 16 (3) above). 18. The judge advocate for the general court martial was appointed by the Judge Advocate General (see paragraphs 42-45 below). He was a barrister and assistant judge advocate with the Judge Advocate General ’ s Office. 3. The court martial hearing 19. On 11 November 1991, Mr Findlay appeared before the general court martial, at Regent ’ s Park Barracks in London. He was represented by a solicitor. He pleaded guilty to three charges of common assault (a civilian offence), two charges of conduct to the prejudice of good order and military discipline (a military offence) and two charges of threatening to kill (a civilian offence). 20. On 2 November 1991, his solicitor had made a written request to the prosecuting authorities to ensure the appearance of Dr Blunden at the court martial and on 5 November 1991 the prosecuting officer had issued a witness summons requiring her attendance. However, the defence was informed on the morning of the hearing that Dr Blunden would not be attending. Mr Findlay claims that her absence persuaded him to plead guilty to the above charges. However, his solicitor did not request an adjournment or object to the hearing proceeding. 21. The defence put before the court martial the medical reports referred to above (paragraphs 11-13) and called Dr Reid to give evidence. The latter confirmed his view that the applicant suffered from PTSD, that this had been the principal cause of his behaviour, that he had not been responsible for his actions and that he was in need of counselling. During cross ‑ examination, Dr Reid stated that this was the first time he had dealt with battle-related PTSD. The prosecution did not call any medical evidence in rebuttal or adopt any of the evidence prepared by the army-instructed psychiatrists, Drs McKinnon and Blunden (see paragraphs 11-13 above). 22. In the course of his speech in mitigation, Mr Findlay ’ s solicitor urged the court martial that, in view of the fact that his client had been suffering from PTSD at the time of the incident and was extremely unlikely to reoffend, he should be allowed to complete the few remaining months of his service and leave the army with his pension intact and a minimal endorsement on his record. 23. Having heard the evidence and speeches, the court martial retired to consider their decision on sentence, accompanied by the judge advocate. On their return they sentenced the applicant to two years ’ imprisonment, reduction to the rank of guardsman and dismissal from the army (which caused him to suffer a reduction in his pension entitlement). No reasons were given for the sentence (see paragraph 46 below). 4. The confirmation of sentence and review process 24. Under the Army Act 1955, the decision of the court martial had no effect until it was confirmed by the "confirming officer" (see paragraph 48 below). In Mr Findlay ’ s case, as was usual practice, the confirming officer was the same person as the convening officer. Mr Findlay petitioned him for a reduction in sentence. Having received advice from the Judge Advocate General ’ s Office, the confirming officer informed the applicant on 16 December 1991 that the sentence had been upheld. 25. The applicant, who had been under close arrest since the morning before the court martial hearing, was removed on 18 November 1991 to a military prison and thereafter to a civilian prison on 21 December 1991. 26. He appealed by way of petition to the first of the "reviewing authorities" (see paragraph 49 below), the Deputy Director General of Personal Services, as delegate of the Army Board, a non-legally qualified officer who obtained advice from the Judge Advocate General ’ s Office. By a letter dated 22 January 1992, Mr Findlay was informed that this petition had been rejected. 27. He then petitioned the second of the reviewing authorities, a member of the Defence Council who also was not legally qualified and who also received advice from the Judge Advocate General ’ s Office. This petition was rejected on 10 March 1992. 28. The advice given by the Judge Advocate General ’ s Office at each of these three stages of review was not disclosed to the applicant, nor was he given reasons for the decisions confirming his sentence and rejecting his petitions. 29. On 10 March 1992, the applicant applied to the Divisional Court for leave to challenge by judicial review the validity of the findings of the court martial. He claimed that the sentence imposed was excessive, the proceedings were contrary to the rules of natural justice and that the judge advocate had been hostile to him on two occasions during the hearing. On 14 December 1992 the Divisional Court refused leave on the basis that the court martial had been conducted fully in accordance with the Army Act 1955 and there was no evidence of improper conduct or hostility on the part of the judge advocate (R. v. General Court Martial (Regent ’ s Park Barracks), ex parte Alexander Findlay, CO/1092/92, unreported). 5. Civil proceedings 30. Mr Findlay commenced a civil claim in negligence against the military authorities, claiming damages in respect of his back injury and PTSD. In a report dated 16 January 1994 prepared for these purposes, Dr Blunden confirmed her previous opinion (see paragraph 12 above) and clearly diagnosed PTSD. 31. In March 1994 the civil action was settled by the Secretary of State for Defence, who paid the applicant £100,000 and legal costs, without any admission of liability. The settlement did not differentiate between the claims in respect of PTSD and the back injury. | The applicant, who served in the army, complained that the martial court, that had sentenced him to two years’ imprisonment, demoted him to the rank of guardsman and dismissed him from the army, had not been an independent and impartial tribunal, because, inter alia, all the officers appointed to it were directly subordinate to the convening officer who also performed the role of prosecuting authority. |
1,038 | Proceedings to divest individuals of their legal capacity | I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1923 and 1948 respectively and live in I. 5. The applicants are mother and daughter. Until 17 July 2006 they lived together in a house in B. owned by the first applicant. A. Placement of the first applicant in the Caritas Home in I. 6. On an unspecified date in 2006 the I. Social Welfare Centre ( Centar za socijalnu skrb I. – the “Centre”) instituted proceedings with a view to establishing the first applicant’s right to care outside her family ( pravo na skrb izvan obitelji ). On 6 July 2006 the Centre appointed its employee Z.J. as the first applicant’s special guardian ( poseban skrbinik ) in these proceedings on the ground that the first applicant, owing to old age and illness, was unable to undertake acts in these proceedings on her own. It was also stated that her daughter Y, the second applicant, could not adequately care for the first applicant, since she suffered from muscular dystrophy. This decision was served on the second applicant on 12 July 2006. 7. On 11 July 2006 the second applicant submitted a statement to the Centre, stating that she was unable to contribute towards the expenses arising from her mother’s care. 8. An official note drawn up by Z.J. on 16 July 2006 indicates that the second applicant urged that her mother be placed in a home and had entered into a private agreement with the I. Caritas Home for elderly and dependent persons (“the Caritas Home”) in order to place her mother there at her own expense until such time as the decision in the above-mentioned proceedings had been adopted. The first applicant was moved to the Caritas Home. She was placed in a room with three other persons. 9. The agreement, dated 17 July 2006, stipulated that the second applicant was to bear the costs of her mother’s accommodation in the Caritas Home, which in turn would provide the first applicant with accommodation and food, medical care and care for her social needs. In order to stay close to her mother and to be able to visit her frequently, the second applicant moved to her own flat in I. 10. A medical report drawn up on 19 July 2006 indicates that the first applicant was an elderly and disabled person, suffering from psycho-organic changes and dementia, and required the constant (full-day) help and care of another person. 11. On 31 August 2006 the Centre established the first applicant’s right to permanent placement in the Caritas Home from 1 September 2006. She was to cover the costs of her accommodation up to the amount of her pension, and the difference between that amount and the full price was to be paid by the Ministry of Health. The first applicant’s pension was to be paid directly into the Centre’s bank account. 12. On 23 November 2006 Z.J. ceased to be the first applicant’s special guardian. 13. On 18 February 2008 the second applicant asked the Caritas Home to allow her mother single-room occupancy on health grounds. She offered to pay the difference between the costs of such accommodation and her mother’s pension. The Caritas Home informed her that if her mother was placed in a single room she would have to pay the full cost. 14. Since the first applicant was a person in care of the State, Z.J., as the social worker from the Social Welfare Centre with responsibility for the first applicant, drew up a report on 28 February 2008, in which she stated that the first applicant was disoriented and dependent on help from others and that it was impossible to establish contact with her. She suggested that proceedings be instituted with a view to divesting the first applicant of legal capacity, because she was unable to care for her rights and interests. She also stated that the second applicant often behaved strangely, in the sense that she showed constant dissatisfaction and had locked herself in her home, refusing food. 15. On 3 March 2008 the second applicant again asked the Home to allow her mother single-room occupancy on health grounds, stating that her mother needed calm and rest. On 10 March 2008 the Caritas Home informed the second applicant that her mother had been provided with adequate health and other care and that they were waiting for a reply from the Ministry of Health and Social Care on payment for a single-occupancy room. 16. On 25 March 2008 the second applicant urged the transfer of her mother to a single-occupancy room. She also asked the Home to provide her with information on the amount of her mother’s pension in order to pay the difference in the cost of single-room occupancy. 17. On 31 March 2008 the Head Nurse of the Caritas Home drew up an official note stating that over the previous year the second applicant had frequently expressed discontent with regard to the care provided to her mother by nurses, physiotherapist and physicians at the Home; this had disrupted the work of the personnel. She had held an interview with the second applicant, who denied these allegations and was very pleasant in communication with the Head Nurse during the interview. The Head Nurse further stated that the second applicant had been in the habit of visiting her mother twice a day, in the morning and afternoon, staying for a few hours. Over the previous two weeks she had been coming to the front of the Home before the reception’s opening hours and had stayed until the end of working hours; she had stopped communicating with the Head Nurse, but continued to intervene in the dynamics of her mother’s health care and to insult the other patients. 18. In her letter of 1 April 2008 the Directress of the Caritas Home informed the Centre of the above. In her letter of 5 April 2008 the second applicant denied these allegations and reiterated that, owing to her mother’s health, it was necessary to place her in a single-occupancy room. 19. On 8 April 2008 the Caritas Home informed the second applicant that she was free to seek her mother’s placement in a single-occupancy room at her own expense and that the cost of such accommodation was 4,680 Croatian kuna (HRK) per month. On 14 April 2008 the Caritas Home further explained that, in order to place her mother in a single-occupancy room she would first have to terminate her mother’s accommodation on the basis of a decision adopted by the Centre and then apply in writing for her mother’s placement in the Home on the basis of a private contract. 20. On 10 April 2008 the second applicant again sought to have her mother placed in a single room. 21. On 18 April 2008 the Centre informed the second applicant that the price of accommodation in the Caritas Home for persons placed there on the basis of a decision by a social welfare centre was HRK 3,000 per month. This amount had been partly covered by her mother’s pension in the monthly amount of HRK 2,237.80. 22. On 22 April 2008 the Centre invited the second applicant to come to the Centre on 5 May 2008 in order to give a statement in connection with appointing a guardian for her mother in the proceedings to divest her of legal capacity. On 28 April 2008 the second applicant asked the Centre that she be appointed as her mother’s guardian in these proceedings. 23. On 21 May 2008, in a letter to the V. Diocese, the owner of the Caritas Home, the second applicant sought help in placing her mother in a single room. There was no reply. 24. On 27 May 2008 the Caritas Home limited visits to multi-occupancy rooms in the Intensive Care Ward to one hour a day. Visits were allowed in the common premises between 9 a.m. and 7 p.m. in winter and between 9 a.m. and 8 p.m. in summer. 25. It appears that the second applicant did not thereafter pursue the question of placing her mother in a single room. In 2009 the second applicant submitted that she no longer had problems with the Caritas Home’s management and that she was peacefully spending time with her mother. B. Medical reports in respect of the first applicant 26. The relevant part of a discharge letter of 28 February 2002 issued by the Varaždin Hospital reads: “The patient was hospitalised at the neurological ward of the V. Hospital owing to a cerebral-vascular accident, brain atrophy and psycho-organic changes. During her stay respiratory difficulties occurred and continuation of treatment in our institution was indicated. ... On admission she was not febrile, was able to move about, communication was possible ( kontaktibilna ), she was eupneic ..., disoriented in time. ... Conclusion: The patient was hospitalised for exacerbation of chronic bronchitis, post-CVA [cerebral vascular accident] condition and psycho-organic changes. During her stay she was treated with Irumed, Andol and Prazine. Clinical status has improved and she is discharged with a recommendation to continue therapy with Irumed, Andol and Prazine. She is in need of care and the aid of others.” 27. The relevant part of the medical report of 13 December 2005 reads: “The patient has been unable to control her sphincter for three years; she is confused and moves about with difficulty. Today she got lost and became even more confused. Neurological status: psycho-organic syndrome, free neck [movement], no focal neurological excess, she walks with assistance ...” 28. The relevant part of a medical report of 19 July 2006 reads: “The patient is eighty-three years old and in 2000 she suffered an (ischemic) brain stroke. She subsequently developed psycho-organic syndrome, high blood pressure and incontinence. The medical documentation shows that she underwent cataract surgery. In 2002 she was hospitalised in a neurological ward for CVA and was then transferred to the Special Hospital for Lung Diseases in K. ... Examination reveals that she moves about with difficulty but does walk slowly with aid. She answers basic and short questions, but is disoriented in time and space and towards persons. ... Eupneic... Since the patient is an elderly person who moves about with difficulty, has undergone psycho-organically changes [and] suffers from dementia, I consider that she needs the constant care and aid of others.” C. Proceedings to divest the first applicant of legal capacity 29. On 17 April 2008 D.P.D., the first applicant’s niece, was heard in the Centre with a view to appointing her as the first applicant’s guardian. 30. On 16 June 2008 the Centre appointed D.P.D. as the first applicant’s guardian. On the same day the Centre asked the I. Municipal Court to institute proceedings with a view to having the first applicant divested of her legal capacity. The relevant part of the Centre’s submission reads: “Owing to a brain stroke and brain atrophy the respondent has suffered psycho-organic changes, is incapable of independent life and entirely dependent on the help and care of others. In view of the above, this Centre recognised her right to care outside her family and she was accommodated in the Caritas Home for elderly and dependent persons ... in I. The level of the respondent’s social and intellectual functioning is significantly reduced; no communication is possible, she is disoriented and suffers from dementia. In order to protect her [person], her rights and interests it appears reasonable to give her protection through the institution of guardianship. In view of the above, the Centre considers that the respondent is incapable of caring for her own needs, rights and interests and that the conditions for divesting her entirely of her legal capacity under section 159 of the Family Act have been met.” Z.J.’s opinion of 28 February 2008 and medical documentation in respect of the first applicant was enclosed. 31. In a letter to the Centre of 17 June 2008 the second applicant objected that the decision appointing D.P.D. as her mother’s guardian had not been served either on her or her mother. She also objected to statements in the report drawn up by Z.J. on 28 February 2008, enclosed in the Municipal Court’s case file, and in particular to the statements concerning her ability to be her mother’s guardian and alleging that her behaviour had been strange and that she had locked herself in her house and refused food. In particular, she questioned how Z.J. could have established these facts, since she lived alone. She further stressed that she had moved to I. only to be close to her mother and that she had been caring for her mother, while D.P.D. lived in Z. and only occasionally contacted the first applicant by telephone. The first applicant considered that she was the most appropriate person to be appointed as her mother’s guardian. 32. A note from the Caritas Home of 20 June 2008 confirmed that the first applicant had received the decision of 16 June 2008 and had confirmed that fact with her fingerprint. 33. On 24 June 2008 the second applicant informed the Centre that she objected to the institution of the above court proceedings. 34. At a hearing held before the I. Municipal Court on 10 July 2008 in the presence of the Centre’s representative and the first applicant’s guardian D.P.D., a psychiatric report on the first applicant’s mental state was commissioned. D.P.D. stated that Z.J.’s allegations in her report on the first applicant were true and added that the first applicant was bed-ridden, disoriented and completely incapable of autonomous life. She depended on the constant help of others and was unable to feed herself. Her condition was not improving but was expected to deteriorate. She was able to use only one hand, could move it and put food into her mouth, but even that hand was not functional to the extent that she could properly feed herself. D.P.D. suggested that a medical examination of the first applicant be carried out. 35. The psychiatrist submitted his report on the basis of an examination of the first applicant on 18 July 2008 and medical documentation from 2002. The relevant part of the report reads: “For the purposes of this examination the patient was seen by a psychiatrist on 18 July 2008 in the Home where she is placed. I found her lying awake in her bed. It is not possible to establish meaningful verbal contact because she is unable to talk clearly. To my question about her name and where she is from, she incomprehensibly repeats the same word. From her mimics and gestures it is possible to conclude that the patient has preserved a basic idea of herself. Clinical findings on her mental status: General impression: she lies in the typical “embryo” posture – on her side with legs bent in to the knees and drawn towards the chest, the upper body and head bent forward, so that her chin almost touches her knees (posture typical for persons with serious brain damage). Impression: a gravely ill person, completely dependent on the help of others, bed-ridden. Contact: it is obvious that she can hear and understands something, but she is not able to form comprehensible words. It is to be expected that she [has] only a basic idea of herself. During the interview she looks aside with a dull, expressionless look or closes her eyes. When asked something loudly and directly she pays only brief attention to the speaker. Occasionally she mumbles incomprehensibly. General facial expression reveals a mentally impaired person: empty stare and empty facial mimic. Only basic orientation towards self is preserved. Thought functions completely reduced – no thought process. Movement-impaired – central psychomotor damage (brain). No coordination of hands, incapable of feeding herself. Comprehension, understanding and ability to connect causes and consequences of events are completely damaged – non-existent. Gravely reduced overall mental capacity, with only basic idea of herself preserved. She has no idea of relations between persons or of her own interests. Disabled to the extent that she is dependent on help of another person for mere survival. ... Conclusion: Severe impairment of global cognitive ability, with emphasis on memory, thought process, ability to develop new ideas and make conclusions and decisions; impaired motor functions, to the extent that it renders the person so incapable that she is dependent for her survival on the care of another person. Prognosis unfavourable. Incapable of caring for herself and her rights and interests. On medical grounds protection of the person’s interest under guardianship is indispensable; the court is recommended to divest her entirely of legal capacity.” 36. On 14 August 2008 the first applicant submitted a power of attorney, authorising the second applicant to represent her in the proceedings. She signed the letter in her handwriting. 37. The second applicant objected to the psychiatric report in her written submission to the I. Municipal Court, arguing that it was based on five ‑ year ‑ old medical documentation and a twenty-minute observation by the psychiatrist and that the conclusions of the report were therefore superficial, imprecise and untrue. She maintained that the first applicant could pronounce words, had good hand movement and was able to sit and dress with help. She also claimed that the psychiatrist saw the first applicant in the afternoon, when the first applicant was tired and drowsy, under the influence of medication and alarmed by the presence of an unknown person and of the Head Nurse of the Home. She also objected to the statement given by D.P.D., and argued that D.P.D. had not even seen the first applicant. 38. The second applicant also requested the withdrawal of the judge conducting the proceedings, alleging bias. 39. On 21 August 2008 the request for withdrawal was declared inadmissible by the President of the I. Municipal Court because the second applicant was not a party to the proceedings. At a hearing held the same day in that court D.P.D. stated that she had no objections to the psychiatric report but noted that there was no medical documentation in respect of the first applicant more recent than 2002. 40. On the same day the I. Municipal Court divested the first applicant of legal capacity. The decision states that the persons present at the hearing were the Centre’s representative lawyer M.G., and the first applicant’s special guardian D.P.D. The relevant part of the decision reads: “The requesting party lodged a request to divest the respondent of her legal capacity, alleging that the respondent, owing to psycho-organic changes caused by a brain stroke and brain atrophy, was incapable of autonomous life. She was entirely dependent on the help and care of others. By a decision of the requesting party her right to care outside her family had been established and she was placed in the Caritas Home for elderly and dependent persons ... in I. Her social and intellectual functioning was significantly reduced, it was not possible to establish contact with her, and she was disoriented and demented. She was in need of protection through the institution of guardianship because she was incapable of caring for her own needs, rights and interests, and therefore all requirements under section 159 of the Family Act for divesting her of legal capacity had been met. The respondent’s guardian ad litem replied that the allegations in the request were true and added that the respondent was bedridden, disoriented and completely incapable of autonomous life. She depended on the constant help of others and was unable to feed herself. Her condition was not improving but was expected to deteriorate. She was able to use only one hand, [and] could move it and put food into her mouth; however, even that hand was not functional to the extent that she could properly feed herself. In view of the respondent’s old age, the guardian suggested that a medical examination of the respondent be carried out. She did not oppose the requesting party’s application. This court consulted the opinion of a social worker (page 2), a birth certificate (page 3), medical records (pages 4-5), a decision of the I. Social Welfare Centre of 26 June 2008 (page 6) and a report by medical expert Š.D., doctor in psychiatry, of 18 July 2008 (pages 21-24). On the basis of the above evidence, this court has found the requesting party’s application founded and has accepted it. This court has established that the respondent is an eighty-three-year-old who suffered a brain stroke, after which she developed psycho-organic syndrome, high blood pressure and incontinence. In 2002 she underwent cataract surgery and was hospitalised at the neurological ward for a CVA [cerebral vascular accident]; she was subsequently placed in the Special Hospital for Lung Diseases in K. on account of exacerbated COLD [chronic obstructive lung disease]. Furthermore, this court has established that the respondent’s entire mental capacity, in particular as regards her memory, thought processes, ability to form new ideas and reach conclusions and decisions, together with her psychomotor functions, is damaged to such an extent that it renders the respondent incapable, so that she is dependent on the help of another person for mere survival. She is incapable of caring for herself, her rights and interests and protecting them, and therefore it is necessary to protect the respondent by means of social care, since the prognosis is unfavourable. This court accepted the report and opinion of the medical expert Š.D., doctor in psychiatry, to which the parties made no objections, because the report is detailed, objective and drawn up in accordance with the rules of the profession.” 41. This decision was not served on the applicants. 42. On 22 August 2008 the first applicant asked the I. Municipal Court that the decision of 21 August 2008 be served on the second applicant. She signed the authorisation with her full name. There was no reply. 43. The first applicant is today still accommodated in the Caritas Home. D. Medical reports in respect of the second applicant 44. The relevant part of a discharge letter of 20 December 2006, issued by the psychiatric ward of the V. Hospital, reads: “Brought for treatment by ambulance... there is information that her behaviour has altered since July when her mother, with whom she had lived, was accommodated in a Caritas Home in I. She subsequently locked herself in the house [and] isolated herself from everyone. The relatives who visited her noticed that she had weakened, refused communication and food; she lost a lot of weight, neglected personal hygiene. On admission she appeared as a chronic mental patient, [was] skinny, manic conduct, affectively inadequate... she verbalised fear and the feeling of being threatened, was suspicious and complained of hallucinatory experience. Treatment She has been treated in a closed psychiatric ward with classical pharmacotherapy (Moditen together with Normabel). By the second day following admission and therapy the patient started to take normal meals (first light food and then a regular diet). She has visibly recovered physically. The psychopathology for which she was hospitalised has completely ceased – she has no fears, no psychosis towards her environment, is joyful about every visit and when information has been sought about her. She has good introspection with regard to her physical weakness. She is willing to talk and accept solutions for her life. Optimistic prognosis for further treatment is based on the fact that her first hospitalisation in 1994, which involved deterioration of her mental health and the same clinical picture, was provoked by an external factor, as in the current episode, and in the meantime she has been in good remission, and functioned satisfactorily in society.” E. Proceedings for divesting the second applicant of legal capacity 45. On 17 September 2008 the Centre held a hearing with a view of appointing a guardian for the second applicant, since they intended to institute court proceedings divesting her of legal capacity as well. The second applicant objected to the institution of these proceedings and stated that she had not been informed of the grounds for their institution. 46. On 18 September 2008 the Centre appointed a lawyer, N.C., as guardian ad litem for the second applicant in the forthcoming proceedings to divest her too of the capacity to act. The relevant part of the decision reads: “... the case-file of this Centre shows that ... it instituted proceedings to divest Y of legal capacity in a competent court because owing to her illness and altered personality, she is not able to care for her personal needs, rights and interests. ... Y stated that she had no objections with regard to the person [proposed] as her legal representative, but that she considered it entirely unnecessary to appoint a guardian for her and to institute proceedings before a court to divest her of legal capacity.” 47. On the same day the Centre asked the I. Municipal Court to institute proceedings with a view to having the second applicant divested of her legal capacity. The relevant part of the Centre’s submission reads: “From early youth the respondent has suffered from muscular dystrophy, which makes it difficult for her to move about. Since two years ago, when her mother X was placed in the Home for elderly and dependent persons... the respondent has started to behave in a strange manner and once locked herself in her family house in B., refusing food and any contact with her doctor and worried neighbours. ... the medical documentation shows that the respondent was treated in the psychiatric ward of the V. General Hospital in 1994 with a diagnosis of reactive depressive psychosis. There is no evidence that the respondent continued with medical checkups following a check-up in July 1994, when she had received therapy; this shows that she does not see the need to take care of her own health. The attitude of the respondent towards her mother X ... is possessive. At the beginning the Home’s administration tolerated her whole-day visits. As a result of constant objections concerning the Home’s employees as regards care [to her mother] and verbal and sometimes physical aggression, and also the fact that she disturbed other patients, necessitating a police intervention, her visits have been restricted ... The respondent has unrealistic demands concerning her mother (she constantly seeks her placement in a single room, not accepting the explanations given as to why that is not possible). In her contacts with the employees of the institutions involved in the proceedings conducted for the protection of her own rights and interests and those of her mother, she does not see the purpose [of these proceedings], viewing them as planned personal attacks. She has a very low tolerance level, is unable to preserve self-control [and] insults and denigrates the employees. Also, the fact that she often changes her legal representatives, who refuse to provide further services after a short while, shows the respondent’s increasing problem in establishing and maintaining any kind of social relations in everyday life. In view of the above, the Centre considers that the respondent is not capable of caring for her personal needs, rights and interests ...” 48. The second applicant lodged an appeal against the decision of 18 September 2008 to appoint a special guardian for her, arguing that she was capable of taking care of herself and that there was no need to appoint a guardian for her. 49. On 28 October 2008 the second applicant also filed her submissions opposing the request to divest her of legal capacity lodged by the Centre. She argued that it was not correct that she had been suffering from muscular dystrophy since early youth, but that she had had a road accident in 1991, since when she had been using a walking stick. She denied the Centre’s allegations as regards her behaviour over the previous two years. She stressed that she had been taking care of her elderly mother, had placed her in the Caritas Home at her own initiative and then continued to visit her regularly; she also bought a wheelchair for her mother, had been taking her out in the Home’s courtyard, had succeeded in teaching her again how to feed herself and to hold a bottle with water, and provided her with all necessary care. She had also been caring for her own needs, preparing her meals or paying a maid to prepare her meals and clean her flat. She had also been regularly seeing her doctor. In 1994 she had retired and had been hospitalised in a psychiatric ward of the V. Hospital. She had not subsequently seen a psychiatrist since there had been no need and her doctor had not recommended it. She had had regular contacts with others; she was a member of two libraries, had been reading a lot, growing flowers, doing handcrafts and going on short trips. For the purposes of these proceedings she had engaged the services of a lawyer, which showed her ability to care for her interests. 50. On 2 June 2009 the Ministry of Health and Social Welfare quashed the decision of 18 September 2008 on the ground that the same person could not be a legal representative and a special guardian. 51. On 27 July 2009 the Centre issued a fresh decision appointing lawyer I.R. as Y.’s special guardian. The relevant part of the decision reads: “On 18 September 2008 ... N.C. was appointed as a special guardian to Y. in order to represent her in the proceedings with a view of divesting her of legal capacity ... The guardian was also authorised to ... represent her in all personal matters and matters concerning her property, to manage her assets and to take proper care of her person, rights, obligations and wellbeing. ... The Ministry also referred to a wide range of powers given to the special guardian, calling into question the need for such powers. In this connection and on the basis of the evidence presented ... this Centre assessed that the special guardian would properly protect her person, rights and interests, with understanding of the purpose of the proceedings to divest her of legal capacity and the protection provided through the institution of guardianship. It therefore gave [N.C.] the authority to care for [Y.’s] assets, because this Centre is doubtful as to whether Y. is capable of caring for her rights and interests, including her property rights, and has therefore instituted proceedings to divest her of legal capacity, the final decision on which is to be taken by a court. ... N.C. will continue to represent Y in these proceedings on the basis of a power of attorney [given to her by Y] ... ...I.R. is appointed as special guardian for Y ...” 52. On 7 August 2009 the second applicant lodged an appeal against the above decision, arguing that there was no need to appoint a guardian for her or to institute proceedings to divest her of legal capacity because she had been adequately protecting her needs, rights and interests. She explained that she had been caring for her material needs, paying all bills, preparing her meals and maintaining social contacts, as well as regularly seeing her doctor, attending cultural events and visiting her mother. Her way of life did not show in any respect that there was a need to place her under guardianship. It appears that no decision has been adopted upon this appeal. 53. On 30 June 2009 a psychiatric report concerning a telephone interview with the second applicant was submitted to the I. Municipal Court. The relevant part of the report reads: “The respondent is sixty years old. She has been receiving an invalidity pension for some fifteen years. She lives alone in her own flat. She is unmarried [and] has no children. Her physical health is impaired – and that is about all that we can establish without doubt with regard to her physical condition. Owing to the lack of cooperation on the part of the respondent, we have no medical records ... At the outset it should be pointed out that the respondent refused to cooperate. During an interview (organised with great difficulty!) she held a monologue for a whole hour, in which she referred to all the injustice done to her and her mother. She ignored any attempt by the doctor to conduct a dialogue, let alone a structured one. The respondent’s biography or her present life was not addressed. The only thing that happened was her raised voice, rudeness, hostility, a clearly paranoid attitude towards her surroundings, the feeling of being persecuted and a need to defend herself from the institutions that had been interfering with her life, ill-treating her, etc. The expert’s expectation that during a home visit, on her own territory, the respondent would participate in the interview in a more cooperative manner was not met. More than ten telephone calls were not answered. The attempts to find her at her home address were also unsuccessful. After a few weeks she made a telephone call - shouting, accusing, insulting and attacking – in which she did not want to hear any answers. On the basis of all this information and the expert’s personal experience with the respondent, it is easy to conclude that she is a person of a very bizarre mental structure. She suffers from serious emotional disharmony and grave dysphoria and a flood of uncontrolled affective outbursts. In the background, a general paranoid attitude towards her entire surroundings is perceptible, with a fixation on institutions. She is ruled by a feeling that she is exposed to injustice, and to ill-treatment, abuse and systematic denial of her rights. She has succeeded in developing a strong hatred for the employees of the I. Social Welfare Centre and that whole institution. The same is true (maybe even more so) about the Home where her mother is placed. She is argumentative. Her behaviour is often disorganised and chaotic. She has deeply estranged herself from everyone, chased away all good-willed people, broken all threads of cooperation. She is entirely uncooperative and is prone to describe everyone who dares to say or do anything she dislikes as an ignorant person, an adversary, [or] even an enemy. In all that ‘rashomon’ the respondent does not even make an attempt to control herself, does not try to hide her hostility, does not try even for a second to reflect and analyse her own contribution to the situation; she rejects any suggestion that there had been any wrong on her part. She is entirely uncritical and has no introspection; she automatically seeks the guilty parties in her surroundings. She opposes any suggestion that she address problems regarding her own person or her behaviour and threatens [to appeal to] a higher instance. In her entire mental world there is a lot of system, that is, logical concepts – and this would all be fine if that logic were not based on an entirely false, at times even psychotic, basis. ... her entire mental world is of a paranoid nature. In the best case we are speaking of a paranoid personality disorder, that is, the condition of personal derangement in which feelings of insecurity, being exploited and having suffered damage prevail. Without restrictions and with no basis she seeks enemies in her surroundings, people who are against her, who want to exploit her or injure her. She has difficulty in trusting anyone, if that is possible at all. She is mistrustful, negative towards others who are or could become traitors; she sees hidden meaning in everything. Such an attitude warrants constant guard, suspicion and defensiveness. It is difficult to assert that this all amounts to a definitive paranoia, but the respondent – even if she is not in paranoia – is surely approaching it. We stress that paranoia is a real psychotic disorder (that is to say mental derangement) characterised by the development of and fixation on one psychotic thought – usually of a persecuting type – or on several such thoughts which are grouped, interconnected and systematised (connected in a psychotic system). In any case, the respondent is not far from mental derangement, which, unfortunately, she does not see and does not understand and therefore refuses any professional help. Overwhelmed with this personal condition, the respondent most often estimates the world around her entirely wrongly, giving immense importance to trivialities and at the same time ignoring crucial things. By insisting on the irrelevant, she seriously neglects her vital interests and thus directly compromises them. She exhausts her limited resources on irrelevant, sporadic things, thus calling into question her ability to organise her existence, to structure it adequately and to exploit what she has at her disposal in her best interests. Her mental condition is entirely (which still does not mean irreversibly) impaired. She has lost the ability to anticipate and to react and adapt in a preventive manner. Her understanding of the world and her position in it is limited by a feeling of injustice, and is also superficial, wrong and strict. She is incapable of locating herself correctly in the complex, abstract laws of the outside world. She is not capable of recognising the institutional resources at her disposal; even when they are presented to her, she rejects them uncritically, putting herself in a dangerous, unacceptable and miserable position. In her mental condition she has no chance of exploiting outside resources and protecting her rights and interests. She will follow – without caution, without reflection – her first impression and thus immediately puts at risk her economic, material and health interests. At the same time she will ignore favourable outcomes and situations and potential opportunities for improvement. On account of her clearly deeply impaired mental vitality, the respondent is in a perilous condition - her physical, economic, social and health safety is compromised and she has no resources to resist peril constructively and properly. She is not able to participate actively in the outside world and to act in a constructive manner. She is lost in everyday specific situations and exhausts herself in trivialities. Therapeutic possibilities in her condition are still possible. The problem is that the respondent will refuse them categorically and systematically, seeing them as an attack on herself or a sign of grave hostility. The respondent is in a situation which absolutely excludes any possibility for her to take care of her rights and interests and to show responsibility towards her obligations. Her only interest is to confirm her paranoid views – and here she does not spare her mental, financial or institutional resources. In this respect it is not possible to leave her on her own, since that will immediately put her at risk at all levels. Her mental resources have brought her to a critical mental and social situation where it is not to be expected that those same resources could save her. I recommend that the request by the requesting party be accepted and that the respondent be entirely divested of legal capacity. There is no aspect of legal capacity that she could perform responsibly and to her own advantage. It is to be stressed that the above statement could and should be revised in the case of a fortunate outcome, that is, if the respondent starts psychiatric treatment, offers her cooperation in therapy and achieves mental rehabilitation. However, no new assessment of her mental condition ... is recommended for at least one year in view of the nature and gravity of her disorder.” 54. At a hearing held on 25 November 2009 in the I. Municipal Court the second applicant was heard. The relevant part of the written record of the hearing reads: “... the respondent alleges that she is entirely capable of caring for her needs and interests, that she receives a pension and lives in her own flat; her next-door neighbour M.Š. prepares her lunches and sometimes she goes to a restaurant. She further alleges that she is able to address all issues concerning her household and paying her bills. She is seeing her doctor and is able to carry out all administrative and other tasks in the city. She retired fifteen years ago because of a road accident; she is an economist with a high school education. She had enrolled in a law faculty, but had not completed her studies ... She watches television, reads daily newspapers, books, has a wide circle of friends who visit her and sometimes she also visits them; in particular, she is also visited by her relatives. She is a very communicative person and leaves a good impression on others and has never had any problems in communication with others. When her mother was placed in a home, she was overwhelmed by sadness because until then they had been living together. However, she did not lock herself in and she does not know who called the doctors and the ambulance - that happened after a report by the Centre. The discharge letters following her two hospitalisations show that her condition was good and satisfactory. Since 2006 she has not been taking any medication save for her underlying illness, which is muscle weakness (a mild form of paraplegia). Between 9 October and 10 November 2009 she was hospitalised for rheumatic diseases and rehabilitation, in order to maintain her customary condition as regards her ability to walk ... She specifically stresses that she has reacted very badly to the institution of these proceedings to divest her of legal capacity because she considers herself entirely legally capable and healthy and able to care for her rights and interests and fulfil all her obligations as she has already described. To the question what her condition would be if she were divested of legal capacity, she answers that she could not even imagine it... it would be bad, such a decision would lead to depression and exacerbation of her illness; her soul would thus be killed and her whole life as well. She stresses that her condition does not require a guardian ... She stresses further that before these proceedings were instituted she had not been given a chance by the Centre or the expert who prepared a report in these proceedings, to give her own overview of her condition, and therefore she has now explained her situation. She also drew up a six-page statement which she attaches to the case file. ... She stresses further that the guardian did not contact her at all ... ... she also stresses that in her view these proceedings were instituted because the Centre wants to deprive her of her property (a flat in I. and part of a family house in B.) and various other property that she might inherit from her mother, since she has no spouse or children, but only a sister. She alleges that her current situation is such that she is capable of caring for herself, even if her illness were to worsen, so as to choose by herself a person to care for her; she also has enough assets to pay for the care that she wishes. She has been thinking about it and she always tries to find solutions for the future. She wants to continue to live in her own flat and does not wish to leave it. Should she be divested of legal capacity, her condition would worsen; she had seen it happen to others. Then she could be placed somewhere she would not want to be. She does not want to live in a home ... because she is used to her own home ... and wishes to be left in peace ...” 55. On 29 March 2010 the same expert in psychiatry submitted his additional report on the second applicant, in which he repeated his previous conclusions, without any further contact with her. 56. The above court proceedings are apparently still pending. | This case concerned proceedings brought by the social services to divest a mother and a daughter of their legal capacity. The first applicant, who was born in 1923, was bedridden and suspected to be suffering from dementia. She was first appointed a guardian in July 2006 and was divested of her legal capacity in August 2008. She alleged that these proceedings had been unfair as she had not been notified of them and had therefore not been heard by a judge or been able to give evidence. |
1,034 | Prohibition of slavery and forced labour (Article 4 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1946 and is currently in detention in Regensdorf. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. By a judgment of 4 July 2003, the Court of Appeal ( Obergericht ) of the Canton of Zürich sentenced the applicant to four years and four months’ imprisonment for multiple sexual acts with minors and multiple acts of sexual coercion. 8. On 1 March 2010 the Court of Appeal suspended the execution of the custodial sentence, replacing it with preventive detention ( Verwahrung ) designed to prevent the applicant from reoffending. 9. On 6 December 2011 the applicant requested exemption from the requirement to work in the context of custodial sentences and measures. On 19 March 2012 the Judicial Enforcements Office of the Canton of Zürich refused his request. 10. By a decision of 29 May 2012, the competent authority of Pöschwies Prison placed the applicant under a stricter prison regime, confining him to his cell, and confiscated his television and computer for fourteen days on account of his refusal to work. That decision was revoked on 31 July 2012 by the Directorate of Justice and Internal Affairs following an appeal by the applicant. 11. By a decision of 20 June 2012, the Directorate of Justice and Internal Affairs of the Canton of Zürich dismissed an appeal by the applicant against the decision of 19 March 2012. 12. On 10 January 2013 the Administrative Court of the Canton of Zürich dismissed an appeal by the applicant against the decision of 20 June 2012. 13. On 15 February 2013 the applicant appealed to the Federal Court, arguing in particular that Articles 74, 75 and 81 of the Criminal Code had been wrongly applied, and alleging a violation of his human dignity and personal freedom within the meaning of Articles 7 and 10 respectively of the Federal Constitution (see paragraphs 15-17 below). 14. In judgment 6B_182/2013 of 18 July 2013 (ATF 139 I 180), which was notified to the applicant on 31 July 2013, the Federal Court dismissed the applicant’s appeal. The Federal Court found that the requirement for prisoners to work was not in itself in breach of human rights, and specifically of Article 4 of the Convention (point 1.5 of the reasoning). Hence, the purpose of compulsory work in the context of the execution of custodial sentences and measures was to develop, maintain or promote prisoners’ capacity to resume working life after their release. In the Federal Court’s view, the requirement to work contributed to the execution of sentences and fostered appropriate social behaviour and the capacity to avoid reoffending. It was also designed to occupy prisoners, give structure to their daily lives and maintain order in the institution (point 1.6). The Federal Court added that, as prisoners got older, greater emphasis was placed on the obligation to provide them with the necessary support (necessary-support principle) and on reducing the negative impact of detention (principle of least possible harm). In the case of prisoners over the age of 65, the requirement to work served the purpose of avoiding the harmful effects of detention, for instance the isolation of persons who had reached retirement age, and preventing mental and physical deterioration. The work had to be tailored to the prisoner’s abilities, training and interests, and it was therefore necessary to avoid placing an excessive burden on prisoners over the age of 65. Lastly, in the case of persons who were less physically and mentally able, the occupation could take the form of therapeutic activity (point 1.6). The Federal Court further held that the Old-Age and Survivors’ Insurance Act was designed to guarantee a living income to persons who were no longer able to work because of their age. However, work performed in connection with the execution of a custodial sentence or measure was not comparable to an employment contract on the competitive labour market, but rather should be regarded as an occupation within a closed system. The Federal Court therefore held that the rules governing persons of pensionable age did not apply to prisoners (point 1.8). The Federal Court also found that an occupation carried out on a voluntary basis was not apt to fulfil the aims pursued by the requirement to work in prison (point 2.6.2). | This case concerned the requirement for a prisoner to work beyond the retirement age. The applicant alleged in particular that there had been a violation of his right not to be required to perform forced or compulsory labour. |
27 | Affiliation- and inheritance-related rights | I. THE CIRCUMSTANCES OF THE CASE 10. The first applicant, Mr Antoni Pla Puncernau, who was born in 1966, is the adopted son of the second applicant, Mrs Roser Puncernau Pedro. The second applicant was the first applicant ’ s supervisor, as Mr Pla Puncernau is mentally handicapped. They both lived in Andorra. She died when the proceedings were still pending before the Court. A. Background to the case 11. In 1949 Mrs Carolina Pujol Oller, the widow of Francesc Pla Guash, died leaving three children: Francesc-Xavier, Carolina and Sara. She had made a will before a notary in 1939. Under the seventh clause of her will, she settled her estate on her son, Francesc-Xavier, as tenant for life. Should he be unable to inherit, the estate was to pass to his sister, Carolina, and if she was also unable to inherit, it was to pass to Sara ’ s son, Josep Antoni Serra Pla. 12. The testatrix indicated that Francesc-Xavier, the beneficiary and life tenant under her will, was to transfer the estate to a son or grandson of a lawful and canonical marriage. To that effect she had inserted the following clause in her will: “The future heir to the estate must leave it to a son or grandson of a lawful and canonical marriage ...” (“El qui arribi a ésser hereu haurà forçosament de transmetre l ’ herència a un fill o net de legítim i canònic matrimoni ... )”. Should those conditions not be met, the testatrix had stipulated that the children and grandchildren of the remaindermen under the settlement would be entitled to her estate. 13. The beneficiary under the will, Francesc-Xavier, contracted canonical marriage to the second applicant, Roser Puncernau Pedro. By deed drawn up on 11 November 1969 before a notary in La Coruña ( Spain ), they adopted a child, Antoni, in accordance with the procedure for full adoption. They subsequently adopted a second child. 14. In 1995 Francesc-Xavier Pla Pujol made a will in which he left 300,506 euros (EUR) to his son, Antoni (the first applicant), and EUR 180,303 to his daughter. He named his wife, Roser (the second applicant), sole heir to the remainder of his estate. In a codicil of 3 July 1995, Francesc-Xavier Pla Pujol left the assets he had inherited under his mother ’ s will to his wife for life and to his adopted son, Antoni, as remainderman. The assets in question consisted of real estate. On 12 November 1996 Francesc-Xavier Pla Pujol died. The codicil was opened on 27 November 1996. 15. Accordingly, the only potential heirs to the estate under the will are the applicants, Antoni Pla Puncernau and his mother, and two sisters, Carolina and Immaculada Serra Areny, who are the great-grandchildren of the testatrix. B. Civil action brought by the sisters Carolina and Immaculada Serra Areny to have the 1995 codicil set aside 16. On 17 July 1997 Carolina and Immaculada Serra Areny brought proceedings in the Tribunal des Batlles of Andorra to have the codicil of 3 July 1995 declared null and void and seeking an order requiring the applicants, as defendants in the proceedings, to return to the plaintiffs all the assets of the estate of Carolina Pujol Oller, their great-grandmother, and to pay them damages for unlawful possession of the assets. 17. In a judgment delivered on 14 October 1999, after hearing submissions from both sides, the Civil Division of the Tribunal des Batlles of Andorra dismissed the action for the following reasons: “ ... IV. In her will dated 12 October 1939, the testatrix stipulated that ... ‘ The future heir to the estate must leave it to a son or grandson of a lawful and canonical marriage ... ’ [ ‘ El qui arribi a ésser hereu haurà forçosament de transmetre l ’ herència a un fill o net de legítim i canònic matrimoni ... ’ ]. In doing so, the will in question set up a family settlement si sine liberis decesserit. An analysis of this type of settlement shows that the purpose is to secure and preserve the estate by keeping it in the settlor ’ s family. V. In interpreting the contents of the will in question, account has to be taken, as has previously been stated, of the testatrix ’ s intention in the light of the words used and the actual nature of the society in which she lived. When the will was made, the Constitution had not been enacted and there was no ordinary statute or other relevant analogous provisions. Consequently, for the purposes of interpreting the wording in the will reference has to be made to customary law, the ius commune, deriving from the influence of Roman law as amended by canon law, and to the relevant case-law of the Andorran courts ... Foreign legislation, case-law and legal theory cannot apply in the present case. The Corpus Iuris provided for the institution of adoption and included in the word ‘ child ’, children born out of wedlock and adopted children ... by providing for two forms of adoption: one undertaken under the authority of a princep and the other before a judge. The procedure followed in the first case was to ask the adoptive parent if he sought to take the adopted child as his legitimate child and to ask the adopted child if he consented. It was also stipulated that ‘ a consanguineous relationship is not instituted by deed but by birth or solemn adoption ’ (Diocletian and Maximianus, Codi 4, 19, 13). Furthermore, ‘ the father-child bond is not created by mere declarations or false assertions, even if both parties consent, but only by lawful marriage or solemn adoption ’ (Diocletian and Maximianus, Codi 4, 19, 14) ... Consequently, according to the Roman concept of adoption, the adopted child leaves his family of origin and terminates all legal connection with it. On doing so he becomes the son of the adoptive parent ’ s family and, as such, takes the family name and above all acquires inheritance rights. This institution has essentially been used for inheritance purposes. Subsequently, two forms of adoption became available: full adoption and simple adoption [ menys plena ], the sole purpose of the latter being to safeguard the adopted child ’ s rights over the adoptive parent ’ s estate. Full adoption is based on the idea that adoption must replace or imitate biological filiation. ... VI. ... If account is taken of the fact that adoption is a legal institution whose purpose is to enable childless couples to have children ... At that time adoption therefore already satisfied a need, with the adopted child being regarded as a legitimate child. That approach was subsequently confirmed by the Constitution and by statute. It cannot therefore be said that, by inserting that clause, the testatrix intended to prevent adopted or non-biological children from inheriting her estate. If that had been her intention, she would have made express provision for it. Accordingly, the codicil made by the late heir, Francesc-Xavier Pla Pujol, is compatible with the deceased Carolina Pujol Oller ’ s will and cannot be declared null ...” C. Appeal to the High Court of Justice of Andorra 18. The Serra Areny sisters appealed to the High Court of Justice of Andorra. In a judgment delivered on 18 May 2000, after hearing submissions from both sides, the High Court set the lower court ’ s judgment aside. It allowed the appeal, set aside the codicil of 3 July 1995, declared that the appellants were the legitimate heirs to their great-grandmother ’ s estate and ordered the applicants to return the property in question. The grounds for the court ’ s judgment were as follows: “II. ... Accordingly, the fundamental question to be resolved in the instant case is whether a child who has been adopted in accordance with the procedure for full adoption can be regarded as a child of a lawful and canonical marriage, as required by the testatrix ... III. This question has to be resolved in accordance with the legal rules on the relationship of adopted children to their adoptive parents that were in force in 1939 and 1949, that is, between the time when Mrs Carolina Pujol i Oller made her will and the date of her death. A will becomes a legal deed from the date on which it is made in accordance with the statutory formalities. Accordingly, in interpreting the testamentary dispositions, regard must be had in the instant case to the legal position of adopted children in the social and family conditions existing in 1939 when the will was made and possibly in 1949 when the testatrix died ... Legal commentators with first-hand experience of Andorran life stress that adoption is practically unheard of in Andorra (Brutails: ‘ Andorran customs ’, p. 122). That assertion is borne out by all the Andorran case-law reports, in which there is no reference to adoption. This silence on the subject is perfectly understandable, moreover, given that the provisions of Roman law on adoption could not easily be transposed to Andorran families living in the first half of the twentieth century for the following reasons: since the nineteenth century it could be regarded as an institution that had become obsolete and, to a certain extent, unnecessary given that the main purpose – to appoint a successor or heir – had been achieved in the Principality of Andorra through the institution of heretament (agreement, specific to Catalan law, on the succession of a living person), introduced by customary law. In that social and family context, it is difficult to sustain the proposition that, in setting up a family settlement in case her heir should die without leaving offspring of a lawful and canonical marriage, the testatrix was also referring to adopted children, given that, at the time, adoption was not an established institution in the Principality of Andorra. The fact that in the instant case the adoptive parents were married to each other does not make their adopted child a legitimate child or a child born of the marriage. The distinction according to whether a child was born in or out of wedlock is relevant only to illegitimate children ... with regard to adopted children, the distinction according to whether a child was born in or out of wedlock does not apply. Accordingly, a child adopted by a couple is an adopted child and not a legitimate child or a child of the marriage. Furthermore, the notarially recorded deed of adoption was drawn up in Spain in accordance with the Spanish procedure for full adoption ... The Law of 24 April 1958, amending the Civil Code, is applicable to the conditions and general effects of full adoption. Under that Law, the act of adopting a child gave him or her the status of the adoptive father/mother ’ s child, but did not give the child family status with regard to the adoptive parents ’ family. Under Article 174-VII of the Spanish Civil Code, adoption created a filial tie between the adoptive parent, the adopted child and his or her legitimate descendants, but not with the adoptive parent ’ s family. Moreover, the inheritance rights were also limited in the present case: the deed of adoption referred to the relevant 1960 Catalan legislation, that is, a compilation of 1960 Catalan civil law. Article 248 provided that on an intestate succession adopted children were entitled to inherit only from their adoptive father or mother and not from the rest of their adoptive parents ’ family. That rule reflected the idea that adoption created only a filial status and not a family status. IV. Accordingly, from a legal standpoint, the adopted children of persons on whom an estate was settled by their father or mother were unconnected with the family circle with regard to the beneficiary ’ s ascendants. That approach can largely be explained by the minimal impact of adoption on the social and family consciousness in Andorra, both at the time when the will was made and when the testatrix died. The testatrix ’ s presumed intention has to be established in the light of the circumstances existing at the time of her death. The adopted children of her legitimate son or of the marriage were unconnected with the family circle both from a legal and a sociological point of view. The purpose of a family settlement si sine liberis decesserit under Catalan law is to keep the family estate in the legitimate or married family and Catalan legal tradition has always favoured the exclusion of adopted children from such family settlements ... Thus, in order for adopted children to inherit under this type of settlement, there must be no doubt as to the testatrix ’ s intention to depart from the usual nature of this institution. In the instant case, the expression ‘ offspring of a lawful and canonical marriage ’, which appears in the 1939 will, does not suffice to infer that the testatrix intended to depart from the usual meaning given to family settlements si sine liberis decesserit under the Catalan and Andorran law of succession. | The first applicant, an adopted child, was disinherited and his mother, the second applicant, consequently lost her right to the life tenancy of the family estate after the Andorran courts interpreted a clause in a will – stipulating that the heir must be born of a “legitimate and canonical marriage” – as referring only to biological children. |
242 | The definition of idem | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1957 and lives in Sevastopol. 6. At about 5 a.m. on 26 January 2002 the applicant had a fight in a local bar during which injuries were sustained by bar staff and damage was caused to property in the bar. The police arrived to handle the matter. They took the applicant and his companion, I., to the police station. The applicant was arrested for an administrative offence of “minor disorderly acts ” provided for in Article 173 of the Code of Administrative Offences. A. Conviction for an administrative offence 7. On 28 January 2002 the Nakhimovskyy District Court of Sevastopol (“the District Court”) found the applicant guilty of the above offence and sentenced him to five days ’ administrative detention. The court set out the following grounds for the conviction: “ ... At about 5 a.m. on 26 January 2002 Tarasov, being drunk in the [ L .N. ] bar located at ... used obscene language about the bar staff, grabbed and swung a wooden chair leg, threatened physical violence, ignored the remarks addressed to him, and thereby breached the public order and peace of the citizens. In other words, he engaged in minor disorderly acts. ... ” 8. The judgment was not open to appeal and became final. B. Criminal proceedings against the applicant 9. On 29 January 2002 the investigator of Nakhimosvkyy District Police Department of Sevastopol instituted criminal proceedings against the applicant and I. for disorderly acts in the bar on 26 January 2002. At a certain point an additional charge against the applicant was included in the case in relation to the injuries which he had allegedly caused to his wife in a separate incident. 10. On 14 October 2003 the District Court adopted the judgment in the criminal case. It also resolved a civil dispute lodged by the victims within the criminal proceedings. With respect to the applicant, the District Court convicted him of two offences : the offence provided for in Article 122 § 1 of the Criminal Code ( “ intentional infliction of medium-severity bodily injuries ” ) and the offence provided for in Article 296 § 4 of the Criminal Code ( “ disorderly acts ” with aggravating circumstances). 11. As regards the first crime the District Court found it established that on 13 August 2001 the applicant had beaten his wife, intentionally causing injuries of medium severity. 12. As to the second crime, the District Court established that at about 4.30 a.m. on 26 January 2002 the applicant and his accomplice I., both drunk and armed with wooden chair legs, entered the L.N. bar where they committed a serious breach of public order. In describing the applicant ’ s conduct, the court stated that the latter, using obscene language, approached a table occupied by N., B., and K. ( bar employees ) and, using the wooden chair leg, inflicted minor bodily injuries on N. and K. The applicant also hit N. on the head with a bottle. Further, the applicant hit a table, which was covered with dishes, using the wooden chair leg, he then broke a mop and threw a beer bottle at the wall, thus causing damage to property. The applicant then went up to a waitress, M., kicked her in the hip and slapped her in the face. 13. In its judgment the District Court cited statements of the victims and some indirect evidence to support these factual findings. In particular, it referred to the statements of N., B., K., and M ., who had submitted that the applicant had shouted obscenities, threatened physical violence, inflicted the above - mentioned injuries and caused damage to property, and that B. had tried to calm him down. 14. The District Court classified the applicant ’ s acts under Article 296 § 4 of the Criminal Code as the offence of “disorderly acts ” committed with the use of an instrument constructed beforehand to inflict bodily injuries ( the wooden chair leg). It sentenced the applicant to three years ’ imprisonment for the two crimes taken together, combined with mandatory medical treatment in prison. The District Court also considered the applicant ’ s objection that he had earlier been convicted of an administrative offence as regards the same events of 26 January 2002. That argument was dismissed by the court on the ground that the applicant had previously been convicted under the Code of Administrative Offences and had received an administrative penalty, which was a different type of legal responsibility; accordingly, the administrative case did not constitute any obstacle to the criminal proceedings. 15. On 20 July 2004 the Sevastopol Court of Appeal upheld the applicant ’ s conviction, having amended the judgment of the District Court as regards the medical treatment of the applicant and his civil liability. On 27 January 2005 the Supreme Court dismissed, in the absence of the applicant, his appeal on points of law. The applicant was informed of the Supreme Court decision by the letter sent to him on 21 May 2005. The applicant ’ s allegation that he had been tried and punished twice for the same offence was dismissed by both courts as unfounded. | This case concerned administrative and criminal proceedings brought against the applicant following an altercation in a bar. The applicant complained in particular about being tried and punished twice for the same offence. |
270 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 11. The applicants were born in 1959 and 1971 respectively and are currently in custody in the Republic of Uzbekistan. They are members of Erk (Freedom), an opposition party in Uzbekistan. A. The first applicant 12. On 3 March 1999 the first applicant arrived in Istanbul from Alma-Ata (Kazakhstan), on a tourist visa. He was arrested by the Turkish police at Atatürk Airport (Istanbul) under an international arrest warrant and taken into police custody on suspicion of homicide, causing injuries through the explosion of a bomb in Uzbekistan and an attempted terrorist attack on the President of Uzbekistan. 13. The Republic of Uzbekistan requested his extradition under a bilateral treaty with Turkey. 14. On 5 March 1999 the Bakırköy public prosecutor made an application to the investigating judge for the first applicant to be remanded in custody. The first applicant, who was assisted by his lawyer, was brought before the judge on the same day and remanded in custody for forty-five days, in accordance with the European Convention on Mutual Assistance in Criminal Matters. 15. On 11 March 1999 the first applicant was interviewed by the judge of the Bakırköy Criminal Court. In an order made on the same day under the expedited applications procedure, the judge referred to the charges against the first applicant and noted that the offences concerned were not political or military in nature but ordinary criminal offences. The judge also made an order remanding him in custody pending his extradition. The first applicant, who was assisted by his lawyer and an interpreter, denied the charges and protested his innocence. 16. In written pleadings that were lodged at a hearing on 11 March 1999, the first applicant ’ s representative argued that his client was working for the democratisation of his country and that political dissidents in Uzbekistan were arrested by the authorities and subjected to torture in prison. He added that the first applicant had been in Kazakhstan at the material time and had asked the Turkish authorities for political asylum as his life was at risk. He argued that his client was being prosecuted for an offence of a political nature and, relying on Article 9 § 2 of the Turkish Criminal Code, asked the Criminal Court to refuse Uzbekistan ’ s request for extradition. 17. On 15 March 1999 the first applicant appealed to the Bakırköy Assize Court against the order made under the expedited applications procedure on 11 March 1999. Having examined the case file, the Assize Court dismissed the first applicant ’ s appeal on 19 March 1999. B. The second applicant 18. The second applicant entered Turkey on 13 December 1998 on a false passport. On 5 March 1999, acting on a request for his extradition by the Republic of Uzbekistan, the Turkish police arrested him and took him into police custody. He was suspected of homicide, causing injuries to others through the explosion of a bomb in Uzbekistan and an attempted terrorist attack on the President of Uzbekistan. 19. On 7 March 1999 the Bakırköy public prosecutor made an application to the investigating judge for the second applicant to be remanded in custody. On the same day the second applicant was brought before the judge, who remanded him in custody. 20. At a hearing on 11 March 1999, the second applicant ’ s representative submitted that the offence with which his client had been charged was political in nature and that political dissidents in Uzbekistan were arrested by the authorities and subjected to torture in prison. He added that the second applicant had been in Turkey at the material time on a false passport. 21. In a letter of 12 March 1999 the Fatih public prosecutor applied to the Fatih Criminal Court for a determination of the second applicant ’ s nationality and of the nature of the alleged offence. 22. In a decision of 15 March 1999, after hearing the applicant, the Criminal Court determined his nationality and the nature of the offence pursuant to Article 9 of the Turkish Criminal Code. It held that the offences with which he had been charged were not political or military in nature but ordinary criminal offences. It also made an order remanding the applicant in custody pending his extradition. 23. On 18 March 1999 the second applicant appealed to the Istanbul Assize Court against the judgment of 15 March 1999. Having examined the case file, the Assize Court dismissed the appeal on 26 March 1999. C. The extradition of the applicants and subsequent events 24. On 18 March 1999 the President of the relevant Chamber of the Court decided to indicate to the Government, on the basis of Rule 39 of the Rules of Court, that it was desirable in the interest of the parties and of the smooth progress of the proceedings before the Court not to extradite the applicants to Uzbekistan prior to the meeting of the competent Chamber, which was to take place on 23 March 1999. 25. On 19 March 1999 the Turkish government issued a decree ordering the applicants ’ extradition. 26. On 23 March 1999 the Chamber decided to extend the interim measure indicated pursuant to Rule 39 until further notice. 27. On 27 March 1999 the applicants were handed over to the Uzbek authorities. 28. In a letter of 19 April 1999, the Government informed the Court that it had received the following assurances regarding the two applicants from the Uzbek authorities: on 9 March and 10 April 1999 the Uzbek embassy in Ankara had transmitted two notes from the Ministry of Foreign Affairs to which were appended two letters from the Public Prosecutor of the Republic of Uzbekistan, stating: “The applicants ’ property will not be liable to general confiscation, and the applicants will not be subjected to acts of torture or sentenced to capital punishment. The Republic of Uzbekistan is a party to the United Nations Convention against Torture and accepts and reaffirms its obligation to comply with the requirements of the provisions of that Convention as regards both Turkey and the international community as a whole.” 29. On 11 June 1999 the Government transmitted to the Court a diplomatic note dated 8 June 1999 from the Uzbek Ministry of Foreign Affairs setting out the following points: “It appears from investigations conducted by the Uzbek judicial authorities that Mr Mamatkulov and Mr Askarov have played an active role in planning and organising terrorist acts against the leaders of the Republic of Uzbekistan and its people since May 1997, as members of a criminal organisation led by C.H. and T.Y., who are notorious religious extremists. It appears from information obtained through cooperation with the intelligence services of foreign countries that Mr Mamatkulov and Mr Askarov have committed offences in Kazakhstan and Kyrgyzstan. Their indictment, which was drawn up on the basis of previously obtained evidence, includes a number of charges: setting up a criminal organisation, terrorism, a terrorist attack on the President, seizing power through the use of force or by overthrowing the constitutional order, arson, uttering forged documents and voluntary homicide. All the investigations have been conducted with the participation of their lawyers. The defendants have made statements of their own free will on the activities of the criminal organisation and their role within it. That information has been corroborated by the other evidence that has been obtained. The assurances given by the Public Prosecutor of the Republic of Uzbekistan concerning Mr Mamatkulov and Mr Askarov comply with Uzbekistan ’ s obligations under the United Nation ’ s Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984. The defendants and their lawyers have examined the prosecution evidence relating to the investigation and the proceedings and a copy of the indictment transmitted to the Supreme Court has been served on them. Arrangements for the accused ’ s security during the investigation and trial have been made through the use of secure premises (with cells specially equipped for that purpose) and appropriate measures have been taken to prevent them being attacked. The defendants ’ trial in the Supreme Court has recently begun with hearings in public. The hearings are attended by members of the local and foreign press. Members of diplomatic missions and representatives of human rights organisations also attend the hearings. Officials from the embassy of the Republic of Turkey may also attend.” 30. In a letter of 8 July 1999, the Government informed the Court that by a judgment of 28 June 1999 the Supreme Court of the Republic of Uzbekistan had found the applicants guilty of the offences charged and had sentenced them to terms of imprisonment. 31. In a letter to the Court dated 15 September 1999, the applicants ’ representatives said that they had not been able to contact their clients, that conditions in Uzbek prisons were bad and prisoners subjected to torture. They noted, inter alia : “... The applicants did not have a fair trial in the Republic of Uzbekistan. The rule requiring trials to be held in public was not complied with. Our only information about the applicants ’ trial comes from the Uzbek authorities. We wrote to the Uzbek embassy in Ankara on 25 June 1999 requesting permission to attend the trial as observers in our capacity as lawyers, but have received no reply. As to the assertion that the applicants ’ trial was followed by ‘ members of the local and foreign press and representatives of human rights organisations ’, the only non-governmental organisation present in Uzbekistan that was able to follow the trial was Human Rights Watch. Although we have made express requests to that organisation, we have not been able to obtain any detailed information about the hearings and events at the trial. Since the applicants ’ extradition, we have been unable to contact them by either letter or telephone. We still have no means of contacting them. This state of affairs serves to confirm our suspicions that the applicants are not being held in proper prison conditions. According to the letter sent by the Court on 9 July 1999 and information published in the press, Mr Mamatkulov has been sentenced to twenty years ’ imprisonment. That is the heaviest sentence that can be handed down under the Uzbek Criminal Code. Furthermore, if account is taken of the conditions of detention in Uzbek prisons, and in particular of the use of torture, it is very difficult for prisoners to serve their sentences in the prisons in proper conditions. Moreover, it is generally believed that certain prisoners, in particular those convicted of offences pertaining to freedom of expression, are given additional sentences.” 32. On 15 October 2001 the Uzbek Ministry of Foreign Affairs sent the following information to the Turkish embassy in Tashkent: “On 28 June 1999 the Supreme Court of the Republic of Uzbekistan found R. Mamatkulov and Z. Askarov guilty of the offences listed below and sentenced them to twenty years ’ and eleven years ’ imprisonment respectively: R. MAMATKULOV (a) Eighteen years ’ imprisonment pursuant to Articles 28 and 97 of the Criminal Code (homicide with aggravating circumstances, namely: (i) murder of two or more people; (ii) murder of a person on official duty or of a close relative of such a person; (iii) use of means endangering the lives of others; (iv) use of cruel means; (v) offence committed in the defendant ’ s own interests; (vi) offence committed on the basis of religious beliefs; (vii) offence committed with the aim of concealing another offence or of facilitating its commission; (viii) offence committed by a group of people or a criminal organisation in the interests of that organisation; (ix) repeat offence); (b) Eighteen years ’ imprisonment pursuant to Article 155 § 3 (a) and (b) of the Criminal Code (terrorist offence); (c) Ten years ’ imprisonment pursuant to Article 156 § 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion); (d) Eighteen years ’ imprisonment pursuant to Article 158 § 1 of the Criminal Code (attempted terrorist attack on the President of the Republic of Uzbekistan); (e) Eighteen years ’ imprisonment pursuant to Article 159 § 4 of the Criminal Code (attempt to undermine the constitutional regime of the Republic of Uzbekistan, conspiracy to take power or overthrow the constitutional regime of the Republic of Uzbekistan); (f) Fifteen years ’ imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability); (g) Twelve years ’ imprisonment pursuant to Article 168 § 4 (a) and (b) of the Criminal Code (fraud, obtaining the property of others by fraud or deception by or in the interests of a group of individuals); (h) Ten years ’ imprisonment pursuant to Article 223 § 2 (b) (entering or leaving Uzbek territory illegally and with premeditation); (i) Two years ’ community service pursuant to Article 228 § 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper); (j) Eighteen years ’ imprisonment pursuant to Article 242 § 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang). Is sentenced to twenty years ’ imprisonment pursuant to Article 59 of the Criminal Code (aggregation of sentences for several offences) to be served in strict-regime penal institutions. R. Mamatkulov is currently serving his sentence in Zarafshan Prison, which is under the authority of the Office of Internal Affairs of the province of Navoi. He is in good health and is entitled to receive visits from close relatives. He did not receive an amnesty under the Amnesty Decree of 22 August 2001. Z. Abdurasulovich ASKAROV (a) Ten years ’ imprisonment pursuant to Articles 28 and 97 of the Criminal Code (homicide with aggravating circumstances, namely: (i) murder of two or more people; (ii) murder of a person on official duty or of a close relative of such a person; (iii) use of means endangering the lives of others; (iv) use of cruel means; (v) offence committed in the defendant ’ s own interests; (vi) offence committed on the basis of religious beliefs; (vii) offence committed with the aim of concealing another offence or of facilitating its commission; (viii) offence committed by a group of people or a criminal organisation in the interests of that organisation; (ix) repeat offence); (b) Ten years ’ imprisonment pursuant to Article 155 § 2 (a) and (b) of the Criminal Code (terrorist offence, causing another ’ s death); (c) Ten years ’ imprisonment pursuant to Article 156 § 2 (d) of the Criminal Code (incitement to hatred and hostility giving rise to discrimination on grounds of race and religion); (d) Nine years ’ imprisonment pursuant to Article 158 § 1 of the Criminal Code (attempted terrorist attack on the President of the Republic of Uzbekistan); (e) Nine years ’ imprisonment pursuant to Article 159 § 4 of the Criminal Code (attempt to undermine the constitutional regime of the Republic of Uzbekistan, conspiracy to take power or overthrow the constitutional regime of the Republic of Uzbekistan); (f) Nine years ’ imprisonment pursuant to Article 161 of the Criminal Code (attempt to destroy property or to damage peoples ’ health, massacres committed with the intention of harming the activities of State bodies and undermining social, political and economic stability); (g) Nine years ’ imprisonment pursuant to Article 173 § 3 (b) (destruction of, or intentional damage to, property belonging to others by or in the interests of a group of individuals); (h) Ten years ’ imprisonment pursuant to Article 223 § 2 (b) (entering or leaving Uzbek territory illegally and with premeditation); (i) Two years ’ community service pursuant to Article 228 § 3 (manufacture, use and sale of false documents: seal, stamp, headed notepaper); (j) Ten years ’ imprisonment pursuant to Article 242 § 1 (forming an armed organisation or gang to commit offences and holding a position of authority or special position within such organisation or gang). Is sentenced to eleven years ’ imprisonment pursuant to Article 59 of the Criminal Code (aggregation of sentences for several offences) to be served in strict-regime penal institutions. Z. Askarov is currently serving his sentence in Şayhali Prison, which is under the authority of the Office of Internal Affairs of the province of Kashkadarya. He is in good health and is entitled to receive visits from close relatives. He did not receive an amnesty under the Amnesty Decree of 22 August 2001.” 33. At the hearing on 23 October 2001, the Government informed the Court that on 19 October 2001 two officials from the Turkish embassy in Tashkent had visited the applicants in Zarafshan Prison and Şayhali Prison, which are respectively 750 and 560 kilometres from Tashkent. According to the embassy officials, the applicants were in good health and had not complained about their prison conditions. 34. On 3 December 2001 the Uzbek authorities communicated to the Government medical certificates that had been drawn up by military doctors in the prisons in which the applicants were being held. The doctors made the following findings: “... Mr Mamatkulov was imprisoned on 9 December 2000. He did not present any health problems on arrival. Examinations on 14 December 2000 and 2 April 2001 did not reveal any pathological symptoms. On 19 November 2001 the prisoner attended the prison medical centre complaining of general weakness and a bout of coughing. ... on examination he was diagnosed as suffering from acute bronchitis and was prescribed medication ...” “... Mr Abdurasulovich Askarov was imprisoned on 21 July 2001. He did not complain of any health problems on arrival. Examinations conducted on 25 July, 30 August and 23 October 2001 did not reveal any pathological symptoms ...” 35. On the basis of lists that had been communicated by the Uzbek authorities, the Government informed the Court on 16 April 2004 that the applicants had received a number of visits from close relatives between January 2002 and 2004. 36. To date, the applicants ’ representatives have been unable to contact the applicants. IV. BRIEFING AND REPORT OF AMNESTY INTERNATIONAL ON UZBEKISTAN 54. As regards the situation in Uzbekistan at the material time, Amnesty International stated in a briefing for the United Nations Committee against Torture that was made public in October 1999: “... Amnesty International remains concerned that Uzbekistan has failed to implement its treaty obligations fully despite numerous, wide-ranging and officially endorsed national initiatives in the fields of human rights education and democratisation and judicial and legislative reforms aimed at bringing national legislation into line with international standards. Since December 1997, when several murders of law enforcement officials in the Namangan region sparked a wave of mass detentions and arrests, the organisation has received a growing number of reports of ill-treatment and torture by law enforcement officials of people perceived to be members of independent Islamic congregations or followers of independent imams (Islamic leaders). Hundreds of these so-called ‘ Wahhabists ’ were sentenced to long terms of imprisonment in trials that fell far short of international fair trial standards. The organisation ’ s concern was heightened in February 1999 when hundreds of people, men and women, were detained following a reported six bomb explosions in the capital Tashkent. This time the list of those reported to have been arrested, ill-treated and tortured included suspected supporters of the banned political opposition parties and movements Erk [Freedom] and Birlik [Unity], including family members and independent human rights monitors, as well as alleged supporters of banned Islamic opposition parties and movements, such as Hizb-ut-Tahrir [Liberation Party]. In the majority of these cases, if not all, that have come to the attention of Amnesty International, those detained were denied prompt access to a lawyer of their choice, to their families and to medical assistance. The responsible authorities, from procurators to courts at all levels and the parliamentary ombudsman, persistently failed to launch timely, full and independent investigations into widespread allegations of torture and ill-treatment. According to independent and credible sources, self-incriminating evidence reportedly extracted by torture was routinely included in trial proceedings and served in many of the cases reviewed by Amnesty International as the basis for a guilty verdict. Amnesty International was disturbed by public statements by Uzbek officials, including the President of Uzbekistan, in the wake of both the Namangan murders and the Tashkent bombings, which, if not directly sanctioning the use of violence by State agents against certain sections of the population, could be perceived at the very least to condone the use of unlawful methods such as torture and ill-treatment. In April 1999, for example, President Karimov, portrayed as the guarantor of democracy and human rights, stated publicly that he was prepared to tear off the heads of two hundred people in order to protect Uzbekistan ’ s freedom and stability ... Amnesty International is concerned that such statements together with the authorities ’ persistent failure to initiate impartial and thorough investigations into allegations of torture and ill-treatment, may create an impression that torture and ill-treatment by law enforcement officials is acceptable, and even necessary conduct, and that they can engage in such conduct with impunity. This briefing does not attempt to be a comprehensive study of torture and ill-treatment in Uzbekistan. Instead it concentrates on those Articles of the Convention which are most relevant to Amnesty International ’ s current and most pressing concerns. Failure to ensure that all acts of torture are offences under the criminal law (Article 4) Uzbekistan fails to fully meet the requirements under Article 4 of the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] to ensure that all acts of torture are offences under its criminal law and that such offences are punishable by appropriate penalties which take into account their grave nature. Neither the Constitution nor the Criminal Code, although respectively prohibiting and punishing acts of torture, contain a definition of torture as set out in Article 1 of the Convention. ... Article 235 of the [Uzbek] Criminal Code criminalises obtaining a confession by coercion. Although explicit in its description of prohibited methods of coercion (beatings, inflicting grievous or less grievous bodily harm, torture) and specific in naming the perpetrators (investigating and interrogating officers, procurators) the Article is still far more narrow in its definition of torture than Article 1 of the Convention. The maximum penalty prescribed under this Article is five to eight years ’ imprisonment. Other Articles, including Article 110 of the Uzbek Criminal Code, punish various assaults but do not relate specifically to agents of the State ... The Uzbek press has reported that law enforcement officers have been prosecuted for using unlawful methods in detaining and interrogating suspects. However, to Amnesty International ’ s knowledge, in the period under review, none of the law enforcement officials identified as perpetrators of acts of torture by victims of human rights violations whose cases the organisation has taken up has been charged under the above Articles of the Criminal Code ... Time and again Amnesty International has received credible reports that suspects were denied access to a lawyer of their choice. Often the lawyers are only given access by law enforcement officials after the suspect has been held in custody for several days, which is when the risk of torture or ill-treatment is the greatest. In many cases law enforcement officials will only grant access to the lawyer after the suspect has signed a confession. Meetings between lawyers and clients, when they are granted, are generally infrequent, because unlimited access to a client as prescribed by the law is difficult for lawyers to obtain. Defence lawyers are rarely allowed to be present at all stages of the investigation ... Article 17 of the Code of Criminal Procedure explicitly prohibits the use of torture and obliges judges, procurators, investigators and interrogators to respect a person ’ s honour and dignity at every stage of legal proceedings. Nevertheless, Amnesty International has received countless reports from different sources – former prisoners, relatives of prisoners, defence lawyers, human rights monitors, international human rights organisations, diplomats, copies of court documents – that law enforcement officials continue to routinely violate legal obligations not to subject any person to torture or cruel, inhuman or degrading treatment. ... Prison conditions Conditions under which detainees are held pre-trial are reportedly so poor as to amount to cruel, inhuman and degrading treatment. In 1997 the Uzbek authorities admitted that conditions of detention fall far short of the UN basic minimum standards for the treatment of prisoners. Overcrowding is the norm, with at least two inmates to a bunk bed, sleeping in turns. Inadequate sanitation, shortages of food and basic medication exacerbate the risk of disease, such as tuberculosis. Former prisoners have described punishment cells as underground ‘ holes ’, one square metre with standing room only near the door. The rest of the cell is said to be only 1.5 metres in height, allowing the prisoner only to crouch or sit. Cells are also said to be overrun with vermin. As with the conditions on death row, these allegations are difficult to verify independently given the Uzbek authorities ’ refusal to allow access to independent monitors.” 55. In its annual report of 28 May 2002, Amnesty International noted with respect to the Republic of Uzbekistan: “Reports of ill-treatment and torture by law enforcement officials of alleged supporters of banned Islamist opposition parties and movements, such as Hizb-ut-Tahrir, continued unabated. Thousands of devout Muslims and dozens of members or supporters of the banned secular political opposition parties and movements Erk and Birlik were serving long prison sentences, convicted after unfair trials of membership of an illegal party, distribution of illegal religious literature and anti-State activities. Reports continued to be received that devout Muslim prisoners were singled out for particularly cruel, inhuman and degrading treatment in places of detention, particularly prison camps. Several prisoners, among them a prominent human rights defender, died in custody, allegedly as a result of torture. There were at least 22 death sentences, reportedly imposed after unfair trials, and at least four executions were carried out. ... In November Muhammad Salih, the exiled leader of the banned opposition democratic party Erk, was detained by Czech police at Prague Airport, Czech Republic. He was remanded in custody while an extradition request from Uzbekistan was being examined. In December he was released and returned to Norway, where he had received refugee status in 1999, after Prague City Court ruled against extradition to Uzbekistan. In September President Karimov publicly stated that around 100 people were executed each year. In October the number of offences punishable by death was reduced to four. Allegations of torture and ill-treatment ... Reports continued to be received that devout Muslim prisoners were singled out for particularly cruel, inhuman and degrading treatment in places of detention, especially in strict regime prison camps... In June [2001], 73 ethnic Tajik mountain villagers were found guilty of collaborating with the IMU during their incursion into Uzbekistan in August 2000 and sentenced to between three and 18 years ’ imprisonment in four separate closed trials. This was despite earlier government assurances to the UN Human Rights Committee that the action to evacuate the villagers was taken in order to improve the living conditions of the people concerned and that no criminal cases would be opened against these forcibly displaced villagers. The group trials, which opened simultaneously and without prior notice at the end of May in Tashkent, were held in separate court buildings cordoned off by armed police. Relatives trying to gain access to the court proceedings were reportedly intimidated and attempts were made to force them to leave the city. Only one foreign observer, representing the non-governmental organisation Human Rights Watch, obtained access to one of the trials. All others, including foreign diplomats, local human rights monitors and the media, were barred. According to the Human Rights Watch observer, the prosecution failed to provide any substantive evidence to prove the defendants ’ guilt. All the defendants had allegedly been held incommunicado until their trial and had not been granted the right to be represented by a lawyer of their own choice. In court the defendants reportedly withdrew their confessions and alleged that they had been tortured in order to force them to confess to fabricated charges. They alleged that they had been forced to memorise and recite prepared confessions on film. Some of the men showed the court marks on their bodies allegedly caused by torture. The court, however, failed to take any of these allegations into consideration. ...” | This case concerned the extradition to Uzbekistan in 1999 of two members of an opposition party in Uzbekistan suspected of the explosion of a bomb in that country as well as an attempted terrorist attack on the President of the Republic. Although the Court had on 18 March 1999 indicated to the Turkish Government, under Rule 39 (interim measures) of the Rules of Court, that “it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicants to Uzbekistan until the Court had had an opportunity to examine the application further at its forthcoming session on 23 March”, on 19 March 1999, the Turkish Cabinet had issued a decree for the applicants’ extradition and they were handed over to the Uzbek authorities on 27 March 1999. In a judgment of 28 June 1999 the High Court of the Republic of Uzbekistan later found the applicants guilty of the offences as charged and sentenced them to 20 and 11 years’ imprisonment respectively. |
560 | Anti-Roma rallies and demonstrations | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1978 and lives in Budapest. 7. On 8 May 2007 the Hungarian Guard Association ( Magyar Gárda Egyesület – “the Association”) was founded by ten members of the political party Movement for a Better Hungary ( Jobbik Magyarországért Mozgalom ) with the stated aim of, inter alia, preserving Hungarian traditions and culture. 8. In its turn, on 18 July 2007 the Association founded the Hungarian Guard Movement ( Magyar Gárda Mozgalom – “the Movement”). The Bureau of the Association stated that it had decided to “ create the Hungarian Guard, first operating it as a movement but later attempting to integrate it into the Association as a section ”. It was also decided that “in order to integrate the Hungarian Guard into the Association, [the latter ’ s current ] charter need [ ed ] to be amended ... by 10 October 2007”. The Movement ’ s objective was defined as “defending a physically, spiritually and intellectually defenceless Hungary ”. The tasks undertaken by the Movement, as listed in its deed of foundation, included the physical and psychological training of its members, participation in disaster management and in ensuring public safety, as well as the initiation of a social dialogue regarding these issues through public events. 9. On 4 October 2007 the Budapest public prosecutor ’ s office addressed a notice to the Association calling on it to terminate its unlawful activities. It was noted that the Association had carried out activities that were not in accordance with its aims as defined in its charter. In particular, it was observed that on 25 August 2007 it had organised the swearing-in of fifty - six “guardsmen” in Buda Castle. Subsequently, the Association had conducted a national campaign aimed at popularising tasks defined for the Movement which were not in accordance with the aims of the Association. It was noted that certain aims of the Movement were not amongst those defined for the Association, nor were they in conformity with the Association ’ s cultural and tradition-preserving nature. On 9 November 2007 the applicant, as chairman of the Association, notified the public prosecutor ’ s office that the unlawful activities had been terminated by deleting the impugned part from the Movement ’ s deed of foundation, and that he had initiated the amendment of the Association ’ s charter. Accordingly, on 7 December 2007 the General Assembly of the Association had decided to add the following provision to paragraph 2 of its charter: “(f) In accordance with its name, the Hungarian Guard Association has the aim of engaging in dialogue with society and of holding public events and gatherings for citizens on issues affecting their security, such as disaster management, national defence and life-saving techniques. ” 10. Purportedly in pursuit of these goals, members of the Movement dressed in uniform subsequently held rallies and demonstrations throughout Hungary, including in villages with large Roma populations, and called for the defence of “ethnic Hungarians” against so-called “Gypsy criminality”. These demonstrations and rallies were not prohibited by the authorities. One of these demonstrations, involving some 200 activists, was organised in Tatárszentgyörgy, a village of around 1,800 inhabitants, on 9 December 2007. The police were present and did not allow the march to pass through a street inhabited by Roma families. 11. In reaction to this event, on 17 December 2007 the Budapest Chief Prosecutor ’ s Office lodged a court action seeking the dissolution of the Association. The action was based on the Association ’ s alleged abuse of the right to freedom of assembly and the fact that it had conducted activities which infringed the rights of the Roma by generating fear among them through speeches and appearance, that is to say, by the activists wearing uniforms, marching in formation and issuing military-style commands. The Chief Prosecutor ’ s Office was of the view that the Movement constituted a division of the Association, and that its activity in fact represented a significant part of the latter ’ s activities. It argued that the Movement was not a “ spontaneous community ”, in that its members were all registered, and stressed that it had been created by the presidency of the Association, that applications for membership were assessed by the Association and that its uniform could be bought from the Association. 12. In the ensuing proceedings the Association claimed, however, that there were no organisational ties between itself and the Movement of a kind amounting to a unity of the two; accordingly, it argued that it bore no responsibility for the Movement. It also stated that, in any event, the Movement ’ s activities did not present any objective danger to anyone. According to the Association, a subjective feeling of fear could not give rise to any limitation on fundamental rights, including freedom of assembly; the Movement ’ s conduct had not been intimidating if regarded objectively. 13. After holding four hearings the Budapest Regional Court ruled in favour of the Chief Prosecutor ’ s Office on 16 December 2008 and disbanded the Association under section 16(2 ) ( d) of Act no. II of 1989 on the right to freedom of association (see paragraph 18 below). The court did not accept the arguments concerning the distinction between the two entities and held that a “symbiotic relationship” existed between them. It held that the principal activity of the Association had been the founding, operation, guidance and financing of the Movement, observing, inter alia, that the Movement received donations through the Association ’ s bank account. The legal effect of the judgment was nevertheless limited to the dissolution of the Association; since, in the court ’ s view, the Movement did not have any legal personality, the judgment did not directly extend to it. As regards the assembly in Tatárszentgyörgy, the Regional Court held as follows: “The essential purpose of the event was indeed to place the spotlight on ‘ Gypsy criminality ’. The use of this generalisation, clearly based on racial and ethnic grounds, violated the principle of equal human dignity ... Moreover, this was not a one-off occasion ... [The Movement] based its programme on discrimination between people and expressed it by way of marches in several cases; this amounted to a demonstration of power and to threatening others through the appearance [of the participants in the marches]. ... The court is of the opinion that, from a constitutional point of view, to raise fear, virtually as a mission, is unacceptable as an aim or role.” 14. The court noted that the participants, who were uniformed, had worn armbands quite similar to those of officers of the Arrow Cross (responsible for the reign of terror in Hungary in 1944/45). It took the view that marches with participants dressed in this way were objectively capable of wounding “historical sensitivities”. The court went on to declare that, despite the Association ’ s stated purpose, its actions had violated Hungary ’ s laws on associations and created an atmosphere of anti-Roma sentiment. According to the court, the verbal and visual demonstration of power alone amounted to an infringement of the law, in the light of historical experience; thus, for the Association to be dissolved it was not necessary for it to have committed an actual offence : the fact that its programme encompassed discrimination amounted to prejudicing the rights of others within the meaning of section 2(2) of Act no. II of 1989 (see paragraph 18 below). 15. On 2 July 2009 the Budapest Court of Appeal upheld the judgment of the Regional Court. It also considered two further similar demonstrations staged by the Movement, in the village of Fadd on 21 June 2008 and in the village of Sárbogárd on an unspecified date. The Court of Appeal noted that the speeches given by Movement members in the course of the Fadd rally had contained numerous remarks aimed at the exclusion of Roma. As to the Sárbogárd event, the Court of Appeal observed that there had been several anti-Semitic utterances. This court established a closer connection between the two entities, extending the scope of its judgment also to the Movement. It held that the Association in fact included the Movement as a “unit”; consequently, the judgment concerned both of them. The Association ’ s dissolution also dismantled the organisational framework of individuals operating within any movements related to the dissolved association. The court ruled that the choice of locations for the demonstrations, that is, villages with large Roma populations, could not be seen as social dialogue, but as an extreme form of expression in the context of a quasi ‑ military demonstration of force consisting of the cumulative effects of military- style uniforms, formations, commands and salutes. The Court of Appeal, while it upheld in essence the arguments of the Regional Court, argued that the population of the villages had been subjected as a “ captive audience ” to these extreme and exclusionist views without being able to avoid receiving them. In the court ’ s view, the events organised by the Movement constituted a risk of violence, generated conflict, breached public order and peace and violated the right to liberty and security of the inhabitants of the villages, despite the fact that all the demonstrations, which were tightly controlled by the police, had finished without any acts of actual violence. The court also considered the applicant ’ s freedom of expression. It stated, upholding the arguments of the first-instance judgment and citing the case-law of the Court, that this freedom did not cover hate speech or incitement to violence. 16. On 15 December 2009 the Supreme Court upheld the judgment of the Budapest Court of Appeal. It endorsed the Court of Appeal ’ s finding that the Movement was in fact an entity within the Association. It also agreed with the lower courts as to the necessity of disbanding the Association, pointing out that the Movement ’ s rallies had caused situations of conflict whose protagonists might potentially have had recourse to violence. This decision was served on 28 January 2010. IV. 1. The potential harms resulting from incitement to hate, and from humiliating expressions of contempt for certain groups in a population are amply documented in the annals of human experience. ... The tragic historical experiences of our century prove that views preaching racial, ethnic, national or religious inferiority or superiority and the dissemination of ideas of hatred, contempt and exclusion endanger the values of human civilization. It is proved both by history and by the events of our times that any utterance expressing an intention to arouse hatred against a specific group of people can push social tension to extremes, disturb social harmony and peace and in an extreme case can result in violent clashes between certain groups of society. In addition to the historical and contemporary experiences proving the extremely damaging effects of arousing hatred, it is necessary to consider the everyday threats that result from the unlimited expression of ideas and concepts liable to arouse hatred. Such expression prevents human communities from living in harmony with other groups. By intensifying emotional and social tensions within a smaller or bigger community, this can destroy ties within the society, reinforce extreme positions and increase prejudice and intolerance. All this results in a diminution of the chances of creating a tolerant and multicultural society which acknowledges pluralism, the right to be different and the equal dignity of all people, and in which discrimination is not regarded as a value. 2. To afford constitutional protection to the incitement of hatred against certain groups under the guise of freedom of expression and of the press would present an irresolvable contradiction with the value system and political orientation expressed in the Constitution, that is, with the democratic rule of law, the equality of human beings, equal dignity, the prohibition of discrimination, freedom of religion and conscience and the protection of national and ethnic minorities, as recognised by the various Articles of the Constitution. ... Incitement to hatred is a negation of the above-mentioned notions, an emotional preparation for the use of violence. It is an abuse of freedom of expression, being an intolerant classification of a group characteristic of dictatorships rather than democracies. To tolerate the exercise of freedom of expression and of the press in a manner prohibited by Article 269 § 1 of the Criminal Code would contradict the requirements flowing from the democratic rule of law. ... As a summary of its position, the Constitutional Court points out that the restriction of freedom of expression and of the press is necessitated and justified by the negative historical experiences surrounding the arousal of hatred against certain groups of people, by the protection of constitutional values and by the obligation of the Republic of Hungary to comply with its commitments under international law. ...” 23. Decision no. 14/2000 (V.12) AB of the Constitutional Court contains the following passages: “3. The freedom to express one ’ s opinion is not only a subjective right but also a guarantee of the free expression of various views shaping public opinion. ... Although this right can be restricted, it enjoys special protection due to its primary role, and thus may be restricted only in relation to a few other rights. Therefore, secondary theoretical values such as public peace enjoy less protection than the right concerned. ... Like the right to life, the right to human dignity is eminently protected in the Constitution ... The Constitution is not value-neutral but has its own set of values. Expressing opinions inconsistent with constitutional values is not protected by Article 61 of the Constitution. ... The Constitutional Court points out that, also under the Convention, freedom of expression carries with it ‘ duties and responsibilities ’. All State authorities are obliged to protect the values of a democratic State under the rule of law and to respect the dignity of persons. Action must be taken against conduct representing force, hatred and conflict. Rejecting the use or threat of force as a means of solving conflicts is part of the complex concept of democracy.” 24. Decision no. 18/2004 (V.25) AB of the Constitutional Court contains the following passage: “III. 2.1. ... Even in the case of extreme opinions, it is not the content of the opinion but the direct and foreseeable consequences of its communication that justify a restriction on free expression and the application of legal measures under civil or, in some cases, criminal law.” 25. Decision no. 95/2008 (VII.3) AB of the Constitutional Court contains the following passages: “III. 3.4. ... The aim of the amendment [to the Criminal Code] is to punish hate speech and gestures even if the injured party cannot be identified. As a result, however, the amendment would punish not only conduct violating the honour and dignity of particular persons but all forms of hate speech, including racist statements containing generalisations, meaning that the ‘ affected ’ parties or the parties that consider themselves to be ‘ affected ’ are not forced to take part in or follow the exchange of communication between persons expressing hatred or to face hate thoughts in certain media outlets. ... Extremist voices are not suppressed in constitutional democracies simply on account of their content. In a democratic society such generalising, racist speech cannot change the fact that, from the State ’ s perspective, each citizen is equally valuable and has the same basic rights. In its present form, the amendment would also punish speeches containing only such generalisations. Participation in the communication by persons belonging to the group being attacked, that is, their listening to or being exposed in any way to the racist statements, is not a statutory element of the offence as defined in the amendment. However, these are precisely the cases in which the expression of an opinion may offend not only the sensitivity or sense of dignity of certain persons but also their constitutional rights. For example, if a perpetrator expresses his extremist political convictions in such a manner that a person belonging to the injured group is forced to listen to the communication in a state of intimidation, and is not in a position to avoid it [ ‘ captive audience ’ ] ... In this case, the right of the person concerned not to listen to or become aware of the distasteful or injurious opinion deserves protection. ... Persons belong not only to the community of citizens but also to a narrower group or community. An individual can, also by virtue of belonging to such a group, be exposed to an injury of such gravity and intensity that recourse to criminal - law sanctions may even be warranted to redress the issue.” III. OBSERVATIONS of international Human rights monitoring bodies 26. The Concluding Observations of the United Nations Human Rights Committee in respect of Hungary (adopted in Geneva, 11-29 October 2010) contain the following passage: “18. The Committee is concerned at the virulent and widespread anti-Roma statements by ... members of the disbanded Magyar Gárda. ... Furthermore, it is concerned at indications of rising anti-Semitism in the State party. The Committee is concerned at the Constitutional Court ’ s restrictive interpretation of article 269 of the Penal Code on incitement to violence, which may be incompatible with the State party ’ s obligations under article 20 ... ” 27. The Fourth Report of the European Commission against Racism and Intolerance on Hungary, adopted on 20 June 2008, contains the following passages: “61. ... [ T ] here has been a disturbing increase in racism and intolerance in public discourse in Hungary. In particular, the creation and rise of the radical right-wing Hungarian Guard ( Magyar Gárda ) ... is consistently cited as a cause for deep concern. Since its creation in August 2007 and the public swearing in of several hundred new members in October 2007, the Hungarian Guard has organised numerous public rallies throughout the country, including in villages with large Roma populations; despite apparently innocuous articles of association, amongst the group ’ s chief messages is the defence of ethnic Hungarians against so-called ‘ Gipsy crime [1] ‘. Members of the Hungarian Guard parade in matching, paramilitary-style black boots and uniforms, with insignia and flags closely resembling the flag of the Arrow Cross Party, an openly Nazi organisation that briefly held power in Hungary during World War II, and during whose spell in power tens of thousands of Jews and Roma were killed or deported. ... 73. ... Groups such as the Hungarian Guard also openly express antisemitic views, ... the expression of antisemitic views is currently on the rise in Hungary.” 28. The Third Opinion on Hungary of the Advisory Committee of the Framework Convention for the Protection of National Minorities, adopted on 18 March 2010, contains the following passage: “75. Since its creation in 2007, the Hungarian Guard (Magyar Gárda ), has organised numerous public rallies throughout the country, including in villages with large Roma populations, during which members of the Hungarian Guard parade in matching, paramilitary-style black boots and uniforms, with Nazi insignia and flags. ... the Advisory Committee is concerned by this threatening behaviour. ... ” | This case concerned the dissolution of an association on account of the anti-Roma rallies and demonstrations organised by its movement. |
74 | Parental authority, child custody and access rights | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant is a French citizen who was born in 1963 and lives in Alcira, near Valencia (Spain). 8. The applicant married in January 1983. She and her husband had two children, born in 1984 and 1989. 9. In August or September 1994 the applicant's husband left the matrimonial home and moved in with his mistress. In December 1994 the applicant petitioned for divorce. 10. By a judgment of 5 September 1996, the Nîmes tribunal de grande instance ruled on the divorce petition. It found, firstly, that a reading of the submitted documents had not established that the applicant's membership of the Jehovah's Witnesses had been the cause of the break-down in the couple's relationship, but that it had been attested that her husband had left the matrimonial home to live with his mistress, and had also prevented the applicant from working in the pizzeria they ran. Accordingly, it granted the divorce, attributing fault to the husband alone. 11. With regard to the children, the court decided that they would reside with their mother in Spain and that parental responsibility would be exercised jointly. The father was to have visiting and residence rights on an unrestricted basis and, in the absence of agreement, during the whole of the children's school holidays, provided that he collected them himself and escorted them back to their mother's home. It set the amount of the father's maintenance payments at 1, 500 French francs (FRF) per month and per child. 12. On 21 November 1996 the applicant appealed against this judgment. She asked to be given access for one month during the children's summer holidays and one week during the Christmas and Easter holidays. She also renewed her request for a complementary allowance. In her pleadings in reply, the applicant complained that her ex-husband had not returned the children to her at the end of the 1997 summer holidays and had enrolled them in a school in Aigues-Mortes, where he lived with his new companion. She submitted that the father had influenced the children so that they would express a wish to live with him; she filed statements and photographs intended to show that she was bringing up her children with great care and that they were allowed to take part freely in any activity that interested them. She requested that a social inquiry report be drawn up. 13. The Nîmes Court of Appeal delivered judgment on 14 January 1998. It upheld the judgment with regard to the divorce pronouncement and awarded the applicant a complementary allowance of FRF 1, 500 per month for three years. With regard to the children's place of residence, the court found as follows : “ The two under - age children, C., aged 13, and M., aged 8, currently live with their father in Aigues-Mortes, where they attend school. This is a de facto situation which has been brought about by the father, who, contrary to the provisions of the appealed judgment, failed to return the children to their mother's home at the end of the summer holidays. In justifying his behaviour, R. claims that he has acted in the children's interests, in order to remove them from the detrimental influence of their mother and her circle, who oblige them to practice the religion known as'the Jehovah's Witnesses'. Furthermore, R. has submitted a letter from child C., expressing the latter's wish to remain with his father, together with a medical certificate drawn up by Doctor D., a psychiatrist, on 7 January 1997, which states that child C.'experiences his mother's prohibitions, via the Jehovah's Witnesses, as distressing and frustrating'and that'child M. suffers from the religious constraints imposed on him and expressed a wish to live in Aigues-Mortes with his father as far back as the beginning of 1997'. Finally, numerous other witness statements testified to the children's expressed wish not to return to Spain. Séraphine Palau-Martinez does not deny that she is a Jehovah's Witness or that the two children were being brought up in accordance with the precepts of this religion. Admittedly, she has submitted numerous statements attesting to her affection for her children and showing that she provides for their well-being, and has filed group photographs in which her children appear happy. Taken together, however, the submitted documents are not inconsistent with the arguments of R., who does not wish to deny the mother's maternal attributes but restricts himself to criticising the strict upbringing received by the children on account of their mother's religious convictions. The rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers'children are open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise. It is in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembles that of a sect. There is no reason to order a social inquiry report which, in the present circumstances, would serve only to unsettle the children. In the light of the above analysis, the Court considers that, contrary to the lower court's decision, the two under - age children's place of residence should be their father's home, but that parental responsibility should continue to be exercised jointly. Should no agreement be reached [between the parents], Séraphine Palau-Martinez will enjoy free right of access and the right to have the children to stay: – for the whole of the February and All Saints holidays; – for one month during the summer holidays; – for half of the Easter and Christmas holidays, when it will be for the mother to collect the children from the father's home and for the latter to collect them from the mother's home; ...” 14. The applicant appealed on points of law. In particular, she complained that the Court of Appeal had reversed the first-instance judgment on the central ground that the rules regarding child-rearing imposed by the Jehovah's Witnesses on their followers'children were open to criticism mainly on account of their strictness and intolerance and the obligation on children to proselytise; in so deciding, it had done no more than apply a general and abstract ground and had failed to investigate whether, in reality, the children's upbringing was disrupted to an extent that justified changing their place of residence. She considered that this value judgment on the way in which she practised her religion, taken in abstracto, did not justify the court's decision. She added that the manner in which the court had asserted that it was in the children's interests to be free from the constraints and prohibitions imposed by a religion whose structure resembled a sect had been just as abstract. She also complained that the Court of Appeal had refused to grant her request for a social inquiry report. Referring to freedom of conscience and religion and to the rules of a fair hearing, she relied on Articles 9 and 6 of the Convention. 15. The Court of Cassation delivered its judgment on 13 July 2000. After summarising the grounds of the Court of Appeal's judgment, it ruled as follows: “It is apparent from these findings and considerations that the Court of Appeal, which replied to the submissions without inconsistency, was not obliged to order a social inquiry report and did not interfere with Ms Palau-Martinez's freedom of conscience, ruled, on the basis of the evidence which it alone is empowered to assess, that the children's interests required that their father's home be established as their habitual place of residence; ...” | The applicant, a Jehovah’s Witness, submitted in particular that the residence order providing that her two children should live with their father had interfered in her private and family life and was discriminatory. |
650 | Lawyers | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1946 and lives in Sant ’ Angelo In Campo (Lucca ). A. The applicant ’ s “circular letter” 6. In 2001 the applicant was practising law. In September 2001 he sent a letter to the Italian National Legal Service Commission ( Consiglio Superiore della Magistratura – the “ CSM ” ) in which he complained about the conduct of a judge, X, at the Lucca District Court. He subsequently transmitted the content of that letter by means of a “circular letter” to a number of judges of the same court, but without expressly referring to X by name. 7. The relevant parts of that circular letter read as follows : “ Before you receive any incorrect or untrue information, before the corporatist spirit prevails over a correct interpretation of the reasons that drove me to write to the CSM, to the Ministry of Justice, to the National Council of Notaries and to the National Bar Council, about the conduct of two judges of the Lucca District Court in the context of a judicial partition procedure to which my clients were parties, and before any of my colleagues come to apologise, on my behalf, for my initiative, perhaps making out that I am insane or irresponsible, my intention is to clarify and tell you the reasons which led me to do so. An appeal on points of law is pending against a judgment of the Lucca District Court in which that court, ruling against the claims by a female partner and deciding on the related issue of the partition of an inheritance, asked the investigating judge to proceed with the sale of a flat, which was the sole item of property to be divided between the heirs, and which was occupied by the partner and her daughter, an heir, born to the cohabiting couple. Since the judgment of the Lucca District Court was not final, it was not possible to proceed with the sale or to initiate the procedure relating thereto, since this was prohibited expressly by Article 791 of the Code of Civil Procedure. The other heir, however, applied for ... the sale, and the investigating judge, in spite of our repeated requests for suspension of the sale, which were all rejected, brought about, after two auctions without a buyer, the conveyance of the property to a third party at the third auction. Here are the specific reasons for which all our requests were rejected : ... In spite of this, I would like to point out at the outset that I do not feel any animosity towards the judiciary and judges in general, and that I consider, by contrast, that the role played by judges is crucial and irreplaceable for civil society. There are and have been judges who carry out and have carried out their duties with great dignity and decorum [ decoro ], and who deserve my admiration and the admiration of all those who have worked in the field of justice. None of us can forget Y, who died, one can say, on the ‘ battlefield ’. I still remember that, in the courtroom, he was the one, out of all his colleagues, who, even in his state of extreme and obvious suffering, took the greatest number cases for adjudication, and he carried on doing this until the bitter end. I confess that if I had been able to spare him the effort, in view of his condition, I would willingly have taken over his workload. But there are other equally deserving judges who work, even during their holidays, going to the office, talking to lawyers, and with whom we can have a form of collaboration and dialogue – and to them I also express my esteem and admiration. I am well aware that justice is done by men and precisely for that reason decisions may be erroneous and incomplete. I still prefer, however, a human justice to one that is automated. But what I refuse to accept is the idea that, when the rights of the individual and the dignity of those whose task it is to defend him or her are at stake, those rights could be decided upon in a partial manner, perhaps with a display of arrogance, or that a ruling could be given with total indifference and lack of commitment. I personally believe strongly in the autonomy of the judiciary and I feel that without respect for the autonomy of the person whose task it is to decide, it would be impossible to have dispassionate and fair judgments. Autonomy, however, cannot be turned into an absolute discretionary power because that would be bordering on or tantamount to arbitrariness. I have pointed out how I see the meaning of justice and reiterate that I think very highly of the duties exercised by judges, and that my full admiration goes to those who act with dedication, commitment and decorum [ decoro ]. I am even envious of judges, because they probably have more time to study and to dwell on issues, and also to attend to other cultural and social interests, than lawyers who, by the nature and specificity of their work, do not always manage to do things or to do things well. I often take home things to read and to study and I end up, mid-evening, nodding off over a book after a busy day, running from one office to another in the morning, and answering the phone or receiving clients in the afternoon. I also understand that the judiciary is burdened with work and with problems, that the staffing is insufficient and the workload huge – and for that reason it is true that protests [ esposti ] do not help to get the work done more easily, and that more collaboration and dialogue would be better than protests. There are limits, however, that in my view should not be passed and, after thinking about this for quite some time, I decided to submit this particular protest [ the letter to the CSM]. I will now quote the last part of my protest in which I dwell on the meaning of the lawyer ’ s profession and ask whether it is legitimate that any decision or conduct should always be accepted : ‘ This lawyer would point out as follows : It is regrettable to direct this letter against individuals who, even [ if they have ] different duties, are considered by this lawyer to be “colleagues”, as practitioners in law usually call each other. He considers, however, that he is obliged to do so in response to a lack of commitment and total indifference towards the legitimate demands of the citizen in whose name justice is done, with a belief in impunity, as the position is one of “power”, even though it should be seen as the discharge of a “duty”, and “ last but not least ”, a lack of respect for the dignity and responsibility of this lawyer ’ s profession. This lawyer has practised law in courts at three levels of jurisdiction, has borne very high costs on behalf of his clients – to the point where, if one were to apply the professional rate, one would exceed the amount of the claim – has sought, in three statements of claim filed in the Florence Court of Appeal, a stay of execution under Article 373 of the Code of Civil Procedure, but his requests were all rejected by reasoning that leaves much to be desired – but that is not the subject of this protest – has accumulated a formidable pile of documents of all descriptions, and has seen the attachment of funds in respect of his own claim go up in smoke. In the time it has taken to work on these cases, he could probably have dealt with fifteen ordinary cases of average complexity. If work – any type of work, provided it is lawful – has its own protection and its own dignity, then the judge too ( more than any person, as a result of his function and role ) cannot but allow himself not to respect for the work of others, including that of the lawyer. As a legal practitioner, this lawyer has a duty to provide some certainty to his client, who is the citizen in whose name justice is done ( judgments are headed “In the name of the Italian People” ). What certainty can the lawyer provide if each judge, instead of applying the law, gives his preferred interpretation and does not even explain his interpretation of the laws in question? It should be noted that the system of appeals and claims is no guarantee for the citizen. Judges are only human and can make mistakes ( errare humanum est ), but they cannot and must not wilfully make mistakes, by malicious intent, serious misconduct or negligence, and the citizen must have his or her claims upheld, provided they are well founded, from the earliest stage. There are a large number of cases; this can be explained by the fact that if many decisions had been taken correctly from the outset, one could have avoided the proliferation of cases, procedures and claims, as can be seen here; and not forgetting the many cases where the citizen, disappointed and bemused to receive abnormal decisions, having lost all confidence in the justice system, decides not to appeal. This entails a justified loss of confidence in the courts and an increase in workload and expense for the State, because of the extra work for other judges, registries and bailiffs. And what justification and explanation could be given by the lawyer to this client, to whom he had predicted a certain result, with all due caution, only to present a decision by the judge that is diametrically opposed to that which he predicted ?? If that is the result of an error, or a lack of knowledge or commitment or analysis on the part of the lawyer, he should take responsibility for it; but when this depends on the judge, it is damaging to the lawyer because the client will necessarily have a negative opinion of the lawyer ’ s work. Are clients and citizens capable of understanding whether it is the lawyer or the judge who has made a mistake and to what extent?? If the lawyer does not obtain appropriate results with legal argument, what other means are available ?? What must the lawyer do to obtain something to which he is professionally entitled ?? ... Or should the lawyer not make life difficult for himself and carry on regardless, tending to his garden [ il suo orticello ], while protecting his head from any tiles that might fall off the roof – because on the one hand he is not protected and on the other he is at the mercy of another person ’ s discretionary power ?? ... Without any regard for his own professional dignity ?? ... When this letter reaches you I will be undergoing a medical operation. I am sorry that, for the time being, I cannot provide any further clarification or explanations to those who may wish them. I am however ready, if necessary, to answer for my conduct and to provide any clarification that may be requested of me after my operation, when I am in a better state of health again. ’ ” B. First- instance proceedings 8. Finding that certain expressions used in the circular letter had impugned his reputation, X filed a criminal complaint for defamation against the applicant. 9. As X was a judge in Lucca, the file was transferred, under Article 11 of the Code of Criminal Procedure, to the judicial authorities of Genoa. 10. On 13 February 2003 the Genoa public prosecutor requested that the applicant be committed to stand trial before the court of that city. 11. X joined the criminal proceedings against the applicant as a civil party. 12. According to the charge, in the circular letter the applicant had expressed admissible ( lecite ) criticism in so far as he spoke about interpreting and performing the work of a judge, but had then overstepped the limits to his freedom of expression by writing the following sentences in particular : (a) “Autonomy ... cannot be turned into an absolute discretionary power because that would be bordering on or tantamount to arbitrariness”. (b) “... in a partial manner, perhaps with a display of arrogance, or ... a ruling ... given with total indifference and lack of commitment ”. (c) “... the judge ... cannot allow himself not to respect the work of others, including that of the lawyer”. (d) “Judges are only human and can make mistakes ... but they cannot and must not wilfully make mistakes, by malicious intent, serious misconduct or negligence”. 13. At the hearing of 4 March 2004 the representative of the public prosecutor ’ s office stated that the applicant also had to be charged with proffering insults, given that it transpired from X ’ s statement that he had been one of the recipients of the circular letter. 14. In a judgment of 3 February 2005, deposited in the court ’ s registry on 11 February 2005, the Genoa District Court convicted the applicant of defamation and proffering insults and sentenced him to four months ’ imprisonment and to the reimbursement of X ’ s court costs ( amounting to 2, 000 euros (EUR)) with reparation for the damage sustained by X. The amount of that damage was to be fixed in separate civil proceedings; the court nevertheless awarded X an advance payment ( provisionale ) of EUR 15, 000. 15. The District Court observed that it was not in dispute that the applicant had written the circular letter and had asked his secretary to send copies to the judges in the civil divisions of the Lucca District Court. During the proceedings, the applicant had filed pleadings and had made spontaneous statements. His arguments in defence had not, however, made it possible to disregard the offensive nature of the expressions used in the circular letter, exacerbated by the fact that he was a lawyer. In his letter, the applicant had stated that he had the greatest respect for the judiciary and for judges who carried out their duties with “dedication, commitment and decorum”. But he was clearly not talking here about X, who had been accused by the applicant of being arrogant and indifferent, of believing that he was immune because he held a position of power, and of having committed wilful mistakes, by malicious intent, serious misconduct or negligence. Those accusations could be explained not by X ’ s inaction in the handling of a case, but by the decisions taken by X in a case where the applicant ’ s requests had been rejected. Instead of reiterating his legal arguments, the applicant had overstepped the limits of his right to criticism, alleging that X had erred “wilfully”, thus seriously impugning the honour of the judge in question. 16. According to the District Court, the subject of the accusations contained in the circular letter could only have been X, as shown by similar letters, which expressly referred to that judge, addressed by the applicant and his clients to the CSM, the Ministry of Justice, the National Council of Notaries and the National Bar Council. 17. The applicant ’ s defence ( esimente ) of provocation (Article 599 of the Criminal Code ) was not accepted. Even supposing that the decisions of X could be regarded as “unfair acts”, the circular letter, sent about four months after those decisions, did not constitute an immediate reaction to them. C. Court of Appeal proceedings 18. The applicant lodged an appeal. 19. He alleged, among other things, that the offences he was said to have committed were punishable merely by a fine, that the sentence imposed on him had been disproportionate and that the advance he had to pay was excessive. Moreover, in his complaint X had not mentioned that he himself had been a recipient of the circular letter, thus ruling out the charge of proffering insults. The applicant also argued that it could not be seen from the text of the letter that the criticism was directed at X and that this document, when assessed as a whole, was merely a manifestation of his frustrations about the shortcomings of the justice system in general. 20. Lastly, in the alternative, he took the view that his defence of provocation was valid. He argued that, in the proceedings for the partition of an inheritance, X had on a number of occasions rejected his requests for the suspension of a sale by auction of the flat in question, and that X ’ s decisions had subsequently been overturned by another judge. 21. At the hearing of 12 March 2007, the applicant stated that it had not been his intention to offend X personally and he produced documents as evidence of his ill-health. 22. In a judgment of the same day, deposited in the court ’ s registry on 2 April 2007, the Genoa Court of Appeal ruled that no prosecution could be brought on a charge of proffering insults, as there had been no criminal complaint on that ground, and reduced the sentence for the offence of defamation to a fine of EUR 400. It stated that this sentence was fully remitted ( condonata ), and ordered the applicant to make reparation for the damage sustained by X, which it assessed at EUR 15, 000, and to reimburse X ’ s court costs in the appeal proceedings ( EUR 2, 000). 23. The Court of Appeal observed that, in the first part of his circular letter, the applicant had recounted the tribulations of the partition proceedings in which X had taken the impugned decisions. He had added that he regretted having to make complaints about certain individuals (X and another judge ) whom, even though they had different duties from his own, he regarded as “colleagues”. In addition, the judges of the Lucca District Court, giving testimony in the first-instance proceedings, had had no difficulty in identifying X as the addressee of the criticisms in the circular letter. In those circumstances, the applicant ’ s argument that the letter was merely a manifestation of his discontent about the justice system in general could not be accepted. 24. In the Court of Appeal ’ s view, the decisions taken by X in the context of the inheritance partition proceedings could, at most, be regarded as “erroneous” but not as “unfair”. The court also pointed out that one of the questions at the heart of the dispute ( the existence of inheritance rights in favour of the partner ) had been settled by the Court of Cassation differently from the applicant ’ s proposed solution. The National Bar Council had in fact noted that the applicant ’ s letters could have been seen as a means of pressure against the judges concerned. 25. According to the Court of Appeal, the applicant had not expressly challenged the part of the first-instance judgment considering that the expressions contained in the circular letter had overstepped the limits of the right to criticise. 26. The applicant, who had no criminal record, had to be allowed the benefit of mitigating circumstances, and under Article 52 of Legislative Decree no. 274 of 2000 (see paragraph 32 below ), the penalty for defamation was now a mere fine ( and not a custodial sentence ). 27. The Court of Appeal observed that the distribution of a letter such as that sent by the applicant, within a small court, could not but impugn the dignity of the judge against whom it was directed and his image as an independent judge. The expressions used by the applicant, outside any procedural act, sought to call into question the professional conduct of X, who was portrayed, within a restricted community, as a partial and soft judge. In the light of those considerations, the Court of Appeal, ruling on an equitable basis, awarded the civil party EUR 15, 000 in non-pecuniary damage. D. Appeal on points of law 28. The applicant appealed on points of law. 29. He reiterated his grievances and, referring to a particular passage in his grounds of appeal, stated that the Court of Appeal had made a mistake in asserting that the defendant had failed to challenge the finding about the offensive nature of the expressions contained in the circular letter. In any event, the judge had been required, at all stages of the proceedings, to verify of his own motion whether or not the criminal charge in question was made out. 30. In a judgment of 12 November 2008, deposited in the court ’ s registry on 17 December 2008, the Court of Cassation, finding that the Court of Appeal had given logical and correct reasoning in respect of all the contentious points, dismissed the applicant ’ s appeal on points of law. | This case concerned the criminal conviction of the applicant, a lawyer, for having defamed an investigating judge (Judge X) in the context of proceedings regarding the division of an estate in which he had been acting for two clients. The applicant sent a circular letter to Judge X and other judges of the Lucca District Court containing the text of a previous letter he had written to the Supreme Council of the Judiciary complaining of Judge X’s conduct. |
111 | Corporal punishment | I. the CIRCUMSTANCES OF THE CASE 7. The applicant is a British citizen, born in 1984. In May 1990 he and his brother were placed on the local child protection register because of “known physical abuse”. The cohabitant of the boys ’ mother was given a police caution after he admitted hitting A. with a cane. Both boys were removed from the child protection register in November 1991. The cohabitant subsequently married the applicant ’ s mother and became his stepfather. 8. In February 1993, the head teacher at A. ’ s school reported to the local Social Services Department that A. ’ s brother had disclosed that A. was being hit with a stick by his stepfather. The stepfather was arrested on 5 February 1993 and released on bail the next day. 9. On 5 February 1993 the applicant was examined by a consultant paediatrician, who found the following marks on his body, inter alia : (1) a fresh red linear bruise on the back of the right thigh, consistent with a blow from a garden cane, probably within the preceding twenty-four hours; (2) a double linear bruise on the back of the left calf, consistent with two separate blows given some time before the first injury; (3) two lines on the back of the left thigh, probably caused by two blows inflicted one or two days previously; (4) three linear bruises on the right bottom, consistent with three blows, possibly given at different times and up to one week old; (5) a fading linear bruise, probably several days old. The paediatrician considered that the bruising was consistent with the use of a garden cane applied with considerable force on more than one occasion. 10. The stepfather was charged with assault occasioning actual bodily harm and tried in February 1994. It was not disputed by the defence that the stepfather had caned the boy on a number of occasions, but it was argued that this had been necessary and reasonable since A. was a difficult boy who did not respond to parental or school discipline. In summing up, the judge advised the jury on the law as follows: “... What is it the prosecution must prove? If a man deliberately and unjustifiably hits another and causes some bodily injury, bruising or swelling will do, he is guilty of actual bodily harm. What does ‘ unjustifiably ’ mean in the context of this case? It is a perfectly good defence that the alleged assault was merely the correcting of a child by its parent, in this case the stepfather, provided that the correction be moderate in the manner, the instrument and the quantity of it. Or, put another way, reasonable. It is not for the defendant to prove it was lawful correction. It is for the prosecution to prove it was not. This case is not about whether you should punish a very difficult boy. It is about whether what was done here was reasonable or not and you must judge that...” 11. The jury found by a majority verdict that the applicant ’ s stepfather was not guilty of assault occasioning actual bodily harm. | A supposedly “difficult” nine-year-old was caned several times and with considerable force by his step-father, causing bruising and suffering. His step-father was tried for assault causing actual bodily harm, but acquitted, as English law at the time allowed for a defence of “reasonable punishment”. |
755 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 8. The applicants were born in 1 926, 1923, 1924, 1930, 1935, 1912 and 1957 respectively. They live in Istanbul and Ankara. 9. According to information in the case file, a plot of land measuring 45, 000 sq. m (45 dönüm ) [1] in the village of Kefken, Kandıra, close to the forest and the Black Sea, was registered in the land register (plot no. 135) in August 1911 in the name of Tevfik Beyzade Hurşit Bey, an ascendant of the applicants. 10. On 9 July 1960 a plot of land measuring 102 500 sq. m, in the village of Kefken, Kandıra, close to the forest and the Black Sea, was registered in the land register (plot no. 135) by the cadastral commission [2] in the names of Tasfire Güneş, Reşat Güneş, Saffet Güneş and Turan Güneş, the heirs of Tevfik Beyzade Hurşit Bey. Following the death of Reşat Güneş in 1977, of Tasfire Güneş in 1978 and of Turan Güneş in 1982, the respective shares were transferred to their successors and registered in the land register : Nihal Ayser Turgut, Tevfik Güneş and Turgay Güneş are the heirs of Reşat Güneş; Nermin Solmaz Güneş and Ayşe Ayata are the heirs of Turan Güneş. Hurşit Güneş had inherited shares from Turan Güneş and Tasfire Güneş as the son of the former and husband of the latter. A. Proceedings concerning the annulment of the title to the applicants ’ land and its entry in the land register as property belonging to the Treasury 11. On 3 January 1962 the Ministry of Forestry brought proceedings before the Kandıra Cadastral Court ( “ the court ” ) to have the cadastral commission ’ s assessment of the applicants ’ title to the land [3] declared void on the ground that the land was part of the public forest estate. 12. On 5 January 1962 the Treasury in turn brought proceedings of the same kind [4] before the court and sought registration of the land as property belonging to the Treasury. 13. On 23 May 1965 the court declined jurisdiction under section 28 of the Land Registry Act ( Law no. 509 ) and referred the matter to the Land Registry Directorate ( “ the Directorate ” ). On an unspecified date in 1966 the Directorate referred the matter back to the court. 14. In 1966, by judgment no. 1966/11-1967/66, the court allowed the Ministry of Forestry ’ s application. In the reasons for its judgment, it considered essentially that the disputed land was part of the public forest estate and that therefore, pursuant to the relevant provisions of the Turkish Constitution, it could not be privately owned. 15. By a judgment of 18 June 1968 the Court of Cassation partly upheld the first-instance court ’ s judgment in respect of Turan Güneş and Reşat Güneş and remitted the remainder of the case to the same court. 16. At a hearing before the court, Turan Güneş stated that he had, in the meantime, filed an application with the Administrative Court for the delimitation of the land at issue to be set aside and accordingly asked the court to stay proceedings in the pending case until the Administrative Court had delivered a decision on the matter. The Administrative Court subsequently dismissed the application to have the matter set aside. On 29 December 1969 the Supreme Administrative Court upheld the decision of the administrative court and on 12 January 1974 dismissed an application for rectification lodged by Turan Güneş. The judgment became final. 17. By a judgment of 29 June 1972, considering that the land at issue was part of the public forest estate, the court decided that it could not be privately owned and declared the title deed void. 18. On 4 July 1974 the Court of Cassation quashed the first-instance judgment, holding as follows : “ Following the amendment of section 1 of Law no. 6831 [ the Forestry Act ] by Law no. 1744, jurisdiction for dealing with issues concerning the classification of land as forest was assigned to the ordinary courts and [such measures] ceased to be administrative in nature. Having regard to its procedural nature, this provision is applicable to earlier events. Consequently, although the decision of the Ministry of Forestry was upheld by the Supreme Administrative Court, since jurisdiction in this respect has been transferred from the administrative to the ordinary courts, the judgment of the Supreme Administrative Court can no longer be applied. Furthermore, [in the instant case], the applicants relied upon the land register. This must be consulted and applied to the land at issue. In addition, since the judgment of the Court of Cassation is to be regarded as favourable to the heirs of Hurşit because they were joint owners under the ordinary regime of ownership in common, the land must be registered in the name of the defendants if it is established that it is not forest land, within the meaning of section 1 of Law no. 6831, as amended by Law no. 1744. Otherwise, since cadastral registration of State forests can only be carried out by special commissions set up for that purpose, in accordance with section 7 of Law no. 6831, and seeing that it is only possible to mark out the boundaries between State forests and private forests, it must be established whether the land at issue was returned or if it falls within the scope of restitution pursuant to Law no. 5658, after having been nationalised pursuant to Law no. 4785; in the latter case, it must be listed as private forest; otherwise, it must be classified as State forest and be excluded from cadastral registration [ in the name of a private individual]. ” 19. On 10 November 1977, relying on the expert reports that had been prepared at its request, the court ordered the land at issue to be entered in the land register in the names of Tasfire, Saffet, Turan and Reşat Güneş. 20. On 28 March 1978, on an appeal by the Ministry of Forestry, the Court of Cassation overturned the court ’ s judgment. It held that the expert reports were inadequate and that the court should first of all seek the detailed opinion of the Ministry as to whether or not the land at issue was part of the public forest estate and, if required, commission fresh expert reports on the matter. 21. Various surveys ordered by the court on 23 July 1997 and 20 April 2001, based notably on aerial photographs taken in 1959, concluded that the land in question was part of the public forest estate. These surveys were supported by further expert reports dated 21 August 1997 and 28 April 2001. 22. On 8 May 2001 the court ruled that the land at issue was part of the public forest estate; it declared void the cadastral commission ’ s assessment of [5] the applicants ’ title deeds to the land and ordered it to be entered in the land register as belonging to the Treasury. In doing so, it relied on the aforementioned expert reports, the settled case-law of the plenary Court of Cassation – to the effect that title deeds to property forming part of the public forest estate had no legal value – and on the provisions of Article 169 § 2 of the Constitution enshrining the principle of the inalienability of ownership of State forests. As regards the buildings on the land, the court declined jurisdiction ratione materiae in so far as they had been erected after the title to the land deeds had been issued. As regards the status of the applicants and/or their ascendants as parties to the proceedings, the court found, firstly, that the judgment had become final in respect of Turan and Hurşit Güneş since on 18 June 1968 the Court of Cassation had upheld the first - instance judgment concerning them and secondly, that the heirs of Turan and Hurşit Güneş had been allowed to join the proceedings following the death of their ascendants. 23. On 18 November 2001 the Court of Cassation upheld the judgment of the first - instance court. 24. By a judgment of 29 April 2002, served on the applicants on 11 June 2002, the Court of Cassation dismissed an application by them for rectification of the judgment. B. Application of section 2 ( B ) of the Forestry Act ( Law no. 6831 ) 25. Following the Court of Cassation ’ s judgment of 28 March 1978, the office of the chairman of the Forestry Cadastral Commission ( Orman Kadastro Komisyon Başkanlığı ) informed the Cadastral Court on 28 March 1978 that part of the disputed land had been delimited as part of the Gökdağ State forest and that the other part of the land was subject to the application of section 2 ( B ) of the Forestry Act ( Law no. 6831 ) and was consequently excluded from the public forest estate and transferred to the Treasury. 26. On an unspecified date Turan Güneş lodged an application for judicial review with the District Court, which registered the case as no. 1989/90. Turan Güneş challenged the application of the aforementioned section 2 ( B ) to the land in question. 27. On 12 April 1988 the heirs of R. Gödek applied to the court to be allowed to join the proceedings as intervening parties on the ground that they held a document of title over part of the land at issue to which section 2 ( B ) of Law no. 6831 had been applied. On 24 August 1988 the court allowed their application. 28. By a judgment of 11 July 1990 the aforementioned case no. 1989/90 was joined to the main proceedings pending before the court. 29. On 5 June 1991, claiming title to the land at issue, Z.A.K. also applied to the court for leave to join the proceedings as an intervening party; the court allowed the application on 2 December 1992. Following the death of Z.A.K. during the course of the proceedings, his successors pursued the case before the court. 30. In a judgment of 8 May 2001 the court dismissed the applicants ’ application in the joined case no. 1989/90 and the applications by the other civil parties concerning delimitation, after having decided to declare the applicants ’ document of title void on the ground that the land at issue was part of the public forest estate. 31. On 3 September 2003 the Ministry of the Environment and Forestry requested the İzmit Forestry Directorate to mark the disputed area of 102, 500 sq. m [6] as “ forest ” on the relevant maps pursuant to the judgment handed down in the matter, and to annul the decision of the cadastral commission, of which public notice had been given on 30 May 2003, excluding that land from the perimeter of the forest estate pursuant to section 2 ( B ) of Law no. 6831. C. The status of existing buildings on the disputed land 32. On 27 October 1967, through a notary, Tasfire, Reşat, Saffet and Turan Güneş requested a private company to cease occupying and refrain from building on the land at issue. 33. On 17 May 1990 the office of the Chief of General Staff ( Genelkurmay Baskanlığı ) decided to transform the site of the Kefken military post into a military security zone. 34. On an unspecified date Hurşit Güneş lodged a complaint with the Kandıra public prosecutor against individuals who, he alleged, had sold various plots of the disputed land to third parties while the proceedings concerning the land were pending before the Cadastral Court. He also applied for the existing buildings on the land to be demolished. 35. On 15 February 1996 the public prosecutor decided to take no further action on the ground that the land was inside the area delimited as forest land and that the criminal court of first instance had delivered judgments concerning the occupants in 1994, further to complaints by the forestry authorities. On 18 April 1996 the Sakarya Assize Court dismissed an objection by Hurşit Güneş. 36. On 7 March 1996 an expert report was issued by two experts at the request of the Kandıra district governor ’ s office. The report noted the presence of approximately fifty private housing units and a military holiday camp belonging to the Ministry of Defence, comprising, inter alia, several houses, a tennis court, a picnic area, a kitchen and various storerooms, built between 1970 and 1995. The report was forwarded to Hurşit Güneş on 22 March 1996. 37. On 10 December 1997, in an additional report, the three experts noted that part of the disputed land, measuring 28, 875 sq. m, had ceased to have certain characteristics of forest land prior to 31 December 1981, since it had first been used as agricultural land and had subsequently been used as residential land on which fifty-two reinforced concrete buildings of various kinds had been built. 38. On 18 May 1998 an agricultural engineer noted in a report submitted to the Cadastral Court that the land at issue could not be considered forest land and that it had features of third - class dry agricultural land but was used as building land ( arsa ). 39. On 9 June 1998 the technical expert added his report to the case file. A sketch of the relevant land showed the presence of the buildings and the military zone. 40. On 17 September 2002 approximately forty occupants/residents of the disputed land filed a petition with the Ministry of Forestry. They asked that the land at issue, on which there were, according to them, some one hundred and fifty individual dwellings, be excluded from the forest estate and registered as belonging to the Treasury. They expressed their desire to purchase the parts of the land corresponding to their housing plots. XII. Property rights Article 35 “ Everyone has the right to own and inherit property. These rights may be limited by law only in the public interest. The exercise of the right to own property shall not be in contravention of the public interest. ... ” D. Expropriation Article 46 [ as amended by Law no. 4709 of 3 October 2001] “ The State and public corporations shall be entitled, where the public interest so requires, to expropriate privately owned real estate wholly or in part or to impose public easements on it, in accordance with the rules and procedures prescribed by law, provided that the actual compensation is paid in advance. Compensation for expropriation and for increased value, determined by a final judgment, shall be paid in cash and in advance. However, the procedure to be applied for compensation for the expropriation of land in order to carry out land reform, major energy and irrigation projects, housing and resettlement schemes and afforestation, and to protect the coasts and to build tourist facilities, shall be regulated by law. In such cases, the law may allow payment in instalments, but the payment period shall not exceed five years; any such payments shall be made in equal instalments. Compensation for land expropriated from small farmers who cultivate their own land shall in all cases be paid in advance. Interest equivalent to the highest applicable rate of interest on public debts shall be payable on the instalments referred to in the second paragraph above. ” E. Nationalisation and privatisation Article 47 [ as amended by Law no. 4446 of 13 August 1999 ] “ Private enterprises performing public services may be nationalised when this is required by the public interest. Nationalisation shall be carried out on the basis of actual value. The methods and procedures for calculating actual value shall be prescribed by law. The rules and procedures concerning the privatisation of enterprises and assets owned by the State, State economic enterprises and other public corporate bodies shall be prescribed by law. Those investments and services carried out by the State, State economic enterprises and other public corporate bodies which may be performed by or delegated to private individuals or corporate bodies through private - law contracts shall be determined by law. ... ” IV. Forests and the inhabitants of forest regions A. Protection and development of forests Article 169 “ The State shall enact the necessary legislation and take the necessary measures for the protection and extension of forest areas. Forest areas destroyed by fire shall be reafforested; other agricultural and livestock-breeding activities shall not be allowed in such areas. All forests shall be under the care of the State. Ownership of State forests shall not be transferred to others. State forests shall be managed and exploited by the State in accordance with the law. Ownership of such forests cannot be acquired through adverse possession, nor may they be subject to any easements other than in the public interest. Acts and actions which might damage forests shall not be permitted. No political propaganda which might lead to the destruction of forests shall be carried out; nor shall any amnesties or pardons be specifically granted for offences against forests. Offences committed with the intention of burning or destroying forests or reducing forest areas shall not be included within the scope of any general or specific amnesty laws. The reduction of forest boundaries shall be prohibited, except in respect of areas whose preservation as forests is considered to have no theoretical or practical scientific purpose, but whose conversion into agricultural land has been found to be indisputably advantageous, and in respect of land which, from a theoretical and practical scientific perspective, ceased to have any characteristics of forest land prior to 31 December 1981 and whose use for various agricultural purposes, for example as fields, vineyards, orchards or olive groves or for livestock breeding, has been found to be advantageous, and in respect of built-up areas within cities, towns or villages. ” B. The Civil Code 43. The relevant principles of the Turkish Civil Code read as follows : Article 683 § 1 “Everyone has the right to own, use, manage and dispose of his property as he wishes, within the limits of the legal system. ” Article 705 § 1 “ Real property is acquired through registration. ” Article 1007 § 1 “ The State is liable for any damage resulting from the keeping of land registry records. ” C. Forestry laws 44. Until 1937, forests were not subject to any special regulations. Between 3 February 1937 and 31 August 1956, five main laws concerning forest property were enacted: Laws nos. 3116, (1937), 4785 (1945), 5653 (1950), 5658 (1950) and 6831 (1956). 1. Law no. 3116 of 8 February 1937 45. Section 1 of this Law defines the concept of “ forest ”. Section 3 provides that there are four types of forest: State forests, forests belonging to local authorities, forests belonging to foundations and private forests. The latter belong to the State but are used by individuals who pay a tax on their use. 2. Law no. 4785 of 9 July 1945 46. Section 1 of this Law reads as follows : “ All forests which belong to natural or legal persons, individuals, foundations, villages, municipalities, administrative authorities or public corporate bodies on the date of entry into force of this Law shall be nationalised in accordance with this Law. These forests shall be transferred to the State without the need for any notification or procedure. ” 47. Section 4 of this Law provides for exceptions to nationalisation, notably as regards forests containing certain types of tree planted by individuals. 48. Section 7 of this Law makes provision for compensation in the event of nationalisation. 3. Law no. 5653 of 24 March 1950 49. Law no. 5653 redefines forest land. By section 1 ( c ), scrubland is no longer considered to be forest unless the land it covers is protected or produces a harvest, in accordance with the conditions defined by this Law. 50. Section 1 further provides that, as of 3 April 1950, areas that have ceased to have the characteristics of forests will no longer be treated as such. 51. This Law distinguishes between three kinds of forest land : State forests, forests belonging to legal entities (such as villages and municipalities) and private forests. 4. Law no. 5658 of 24 March 1950 52. Section 1 of Law no. 5658 provides for nationalised land to be returned in certain conditions : “ Of those forests nationalised by Law no. 4785 of 9 July 1945, forests which are not situated within State forests and which are surrounded by agricultural land such as fields, vineyards, gardens, places such as private forests, cities, towns or village grazing land, and forests belonging to villages, municipal authorities or individuals which are surrounded by land not classified as forest land under section 1 of the Forestry Act, provided they are entirely separate from State forests, shall be returned upon request to their owners or to the heirs thereof. ” 5. Law no. 6831 of 31 August 1956 53. Section 1 of this Law defines the concept of “ forest ” and the exceptions thereto. 54. Section 2 ( B ) ( as amended on 5 June 1986 by Law no. 3302) provides : “ Places that scientifically and technically ceased to be forest land before 31 December 1981 shall be excluded from the boundaries of the forest, firstly if it has been determined that such places are suitable for various agricultural purposes as farmland, vineyards, gardens, olive groves, fruit, hazelnut or pistachio ( or pine nut) orchards, or for livestock purposes, and secondly, in the case of built-up areas within cities, towns or villages. The places excluded from the forest boundaries shall be transferred to the Treasury if they already belonged to the State, or to public legal entities if they already belonged to them, or to their owners if the areas in question were private forests. The necessary rectifications and entries shall be made permanently in the land register when the procedure [ for exclusion from forest boundaries ] becomes final. No reduction to forest areas may be made other than in the specified places ... ” 55. Section 4 states that, from the point of view of ownership and administration, there are three types of forest: State forests ( sections 7 to 44), forests belonging to public legal entities ( sections 45 to 49) and private forests ( sections 50 to 55). 56. Section 7 of this Law provides that the nature of an area – State forest or private forest – is defined by the cadastral commissions. Furthermore, sections 7 to 12 of the Law govern the way in which the cadastral commissions operate. 57. State forests are under the protection of the State. Any act altering their forest character is prohibited ( sections 14 to 19 in particular) and constitutes an offence. Sections 79 to 90 set out the procedures applicable to the prosecution of unlawful acts. The criminal penalties for unlawful acts are set out in sections 91 to 114. The penalties for certain offences may be reduced if the perpetrator of the act constituting the offence is the owner of the area in question (see, for example, section 91 (6) ). 58. Private forests are subject to inspection and supervision by the State. Their owners have a limited right to make use of them. Furthermore, they are entitled, inter alia, to build on an area not exceeding 6% of the total surface area of the land ( section 52 (2) ) if the private forest concerned is located in a built-up area (village, town or city ). 59. Law no. 6831 has been amended on various occasions, by Laws nos. 1744 (1973), 2896 (1983), 3302 (1986), 3373 (1987), 3493 (1988), 4079 (1995), 114 (1995), 4570 (2000), 4999 (2003), 5177 (2004), 5192 (2004) and 5728 (2008). D. Domestic case-law 60. On 23 June 1964, the Constitutional Court abrogated sections 3 and 4 of the Forestry Act ( Law no. 4785 ) since they were inconsistent with Article 38 of the Constitution as in force at the material time, which took the actual value of the property as the basis for any compensation payable in the event of expropriation. Section 3 indicated that the value of a nationalised forest was assessed on the basis of the tax return. Section 4 defined the criteria for the purchase of buildings located in a nationalised forest. On the issue of whether the abrogation of the provisions concerned would create a legal vacuum in this sphere, the Constitutional Court held as follows : “ ... when the provisions at issue are abrogated, the general provisions of the Expropriation Act will be applied to the expropriation of forests. ” 61. On 28 March 1995 the Court of Cassation found that under Article 917 of the old Civil Code, the Treasury was responsible for the proper keeping of land registers. In its judgment it set forth the criteria under which the Treasury could be held liable: damage, an unlawful act by a civil servant and a causal link between the damage and the act. It also pointed out that the damage must have been permanent and the application must have been made within one year from the actual occurrence of the damage and, whatever the circumstances, within a general limitation period of ten years. 62. In a judgment of 26 April 1999 the Court of Cassation repeated that under Article 917 of the old Civil Code, the Treasury was responsible for the proper keeping of land registers. In that particular case, the party concerned was unable to have certain interim measures applied to the property of the person indebted to him because the land registers had not been kept in accordance with the regulations. 63. On 7 May 2002, the general assembly of the plenary Supreme Administrative Court ( Danıştay Dava Daireleri Genel Kurulu ) found that the ordinary courts had jurisdiction where a document of title had been declared void by the Cadastral Court on the ground that the land at issue had been part of the public forest estate ( the area was subsequently excluded from the public forest estate as it had ceased to have the characteristics of forest land ). In that case, the administrative courts had dismissed a claim for compensation, relying on the judgment of the Cadastral Court in which the interested party ’ s document of title had been declared void. They had considered that that judgment was in accordance with the law. 64. In its judgment of 7 May 2002 the First Division of the Court of Cassation quashed the judgment of the lower court that had dismissed the interested party ’ s application and held that the State should be found strictly liable for the acts of civil servants of the cadastral commission, who had concluded in error that the land at issue was not part of the public forest estate. Because of that act, no reference had been made in the land register as regards the forest status of the land, which had been sold to third parties who had relied upon the registers. In that particular case, the land at issue had been registered in the names of third parties following the conclusions of the cadastral commission in 1959 and a deed of title had initially been issued in their name. The plaintiff had acquired the land in 1994 on the basis of information appearing in the land register, which made no reference to its being forest land. Between 1977 and 1982 the cadastral commission carried out further surveys and concluded that the land at issue was no longer part of the forest estate as it had ceased to have the characteristics of a forest. It decided to exclude it from the forest estate. A note to this effect was added to the land register in 1995. 65. On 30 October 2006 the Third Division of the Court of Cassation upheld the District Court ’ s judgment of 12 June 2006, which had found that the administrative courts had jurisdiction to deal with disputes concerning claims for compensation in connection with land registration following surveys carried out by the cadastral commission. In that particular case, the land had been acquired by the interested party in 1953. It had then been registered in his name following a cadastral commission survey. Later, the document of title issued to the party concerned was declared void by the court on the ground that the land was part of the forest estate. The court dismissed the application, holding as follows: “ The claimant is seeking compensation on the basis of two administrative measures : the issuing of the document of title and its invalidation as a result of the delimitation of the forest boundary. The claimant submits in addition that the administrative authority committed an error in so far as he, as the holder of the document of title, was not notified of the result of the delimitation following the survey. A claim for compensation for damage caused by an administrative measure may only be brought before the administrative court by way of an action for damages. ” On 30 January 2008, in response to an application of 5 December 2007 by Mr M. Öztok, the claimant ’ s representative in the above-mentioned case ( and also the representative of the applicant in the case of Köktepe v. Turkey, no. 35785/03), the Presidential Council of the Court of Cassation ( Yargıtay Birinci Başkanlık Kurulu ) stated that there was no contradiction between the two earlier judgments and that accordingly, it was not necessary to resort to the case-law harmonisation procedure. 66. By a judgment of 19 April 2006 the general assembly of the Court of Cassation upheld the judgment of the lower court, which had held the State strictly liable for the acts of civil servants of the Land Registry Directorate. In that particular case, a third party had sold land to the claimant in 1976 on the basis of a false court decision, despite the fact that in 1954, the land in question had been classified by the cadastral commission as grazing land ( mera ) and therefore State property. The lower court had partly allowed the claim and had awarded compensation for the house that the claimant had built and the trees he had planted on the land at issue. The Court of Cassation held that the fact that the claimant could take action against the third party did not exempt the administration from strict liability. Even in the absence of fault, the State was liable as long as three conditions were met: there had been a wrongful act, damage had been caused and there was a causal link between the wrongful act and the damage. Furthermore, the Court of Cassation made reference to the provisions of the Civil Code protecting the good faith of a person who had relied on the land register. 67. On 26 June 2006 the Bursa Administrative Court dismissed a claim for compensation for damage allegedly suffered by the claimant as a result of having his document of title declared void because his land was part of the forest estate. The claimant applied to the Administrative Court after having referred the matter to the ordinary courts, which had declined jurisdiction ratione materiae. According to the Administrative Court, the claim was out of time as the claimant should have brought it within sixty days from the date on which the judgment annulling his document of title became final. | The case concerned land of more than 100,000 square metres, which the applicants claimed has been owned by their families for more than three generations. The applicants complained about a decision of the Turkish courts to register the land in the name of the Public Treasury on the ground that the land was public forest, without their being paid any compensation. |
171 | Deprivation of liberty and challenging the lawfulness of detention | I. THE CIRCUMSTANCES OF THE CASE 8. The first applicant was born in 1970 and the second applicant in 1997. They live in Montreal ( Canada ). 9. The applicants are a mother (“the first applicant”) and her daughter (“the second applicant”). They explained that the first applicant had arrived in Canada on 25 September 2000, where she was granted refugee status on 23 July 2001 and obtained indefinite leave to remain on 11 March 2003. 10. After being granted refugee status, the first applicant asked her brother, K., a Dutch national living in the Netherlands, to collect the second applicant, then five years old, from the Democratic Republic of Congo (“the DRC”), where she was living with her grandmother, and to look after her until she was able to join her. 11. At 7.51 p.m. on 17 August 2002 K. arrived at Brussels National Airport with the second applicant. He did not have the necessary travel and immigration papers for his niece or documents to show that he had parental authority and so he tried, unsuccessfully, to persuade the immigration authorities that the second applicant was his daughter. He explained to the Belgian authorities that he had been on a trip to Kinshasa to visit his father ’ s grave and that the first applicant had asked him to bring the second applicant to Europe in order to join her in Canada. The child had been living with a grandmother who was now too old to look after her and the first applicant ’ s attempts to bring her to Canada lawfully had failed. 12. On the night of 17 to 18 August 2002 the federal police telephoned the first applicant to inform her of the situation and to give her a telephone number where she could ring her daughter. The first applicant explained that she had made an application to the Canadian authorities on behalf of her daughter. 13. On 18 August 2002 the second applicant was refused leave to enter Belgium and directions were made for her removal on the ground that she did not have the documents required by the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980. On the same day directions were issued for her to be held in a designated place at the border in accordance with section 74/ 5 of that Act. Pursuant to that decision the second applicant was detained in Transit Centre no. 127. Her uncle returned to the Netherlands. On the same day a lawyer was appointed by the Belgian authorities to assist the applicant and he applied for her to be granted refugee status. 14. On 19 August 2002 the Belgian authorities contacted the immigration department at the Canadian embassy in The Hague to request information on the first applicant ’ s immigration status in Canada. The immigration department informed them that the first applicant had applied for asylum and indefinite leave to remain in Canada. However, the application for asylum made no mention of the second applicant and so did not extend to her. In the interim, the first applicant lodged an application in Canada for a visa for her daughter. 15. On 20 August 2002 a lawyer, Mr Ma., informed the authorities that he had been instructed to replace the lawyer initially assigned to the second applicant and that he was taking steps to secure leave for the first applicant to bring her daughter to Canada. 16. On 22 August 2002 the Aliens Office enquired informally of the Dutch authorities whether they would be willing to take over the second applicant ’ s request for asylum under the Dublin Convention, but they refused. It also asked K. to furnish the addresses of the members of the family in Kinshasa. 17. In a letter to Transit Centre no. 127 dated 23 August 2002, the lawyer thanked the staff at the centre for the friendly welcome they had given to the second applicant and the care with which they had attended to her needs. 18. On 26 August 2002 the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office by e-mail of the first applicant ’ s former address in Kinshasa and her parents ’ address there. 19. On 27 August 2002 the second applicant ’ s request for asylum was declared inadmissible by the Aliens Office, which refused her leave to enter and gave directions for her removal. The decision stated that she had a right of appeal against the refusal to the Commissioner-General for Refugees and Stateless Persons under the expedited procedure and could apply within thirty days to the Conseil d ’ Etat for an order setting aside the removal directions. The second applicant lodged an appeal under the expedited procedure with the Commissioner-General for Refugees and Stateless Persons. 20. On 4 September 2002, in reply to an enquiry from the Aliens Office, the Belgian embassy in the DRC advised that the addresses of the members of the applicant ’ s family in Kinshasa it had obtained on the basis of information provided by the first applicant were incorrect. The applicants denied that K. had given false addresses. 21. In an e-mail of 23 September 2002, the immigration office at the Canadian embassy in the Netherlands informed the Aliens Office that the first applicant had not yet been granted refugee status in Canada. 22. On 25 September 2002 at the hearing of the appeal under the expedited procedure, the Commissioner-General for Refugees and Stateless Persons upheld the refusal of leave to enter after finding that the second applicant ’ s sole aim had been to join her mother in Canada and clearly could not form a basis for an application for refugee status. He drew the Minister of the Interior ’ s attention to the fact that, as a minor, the second applicant was entitled to join her family by virtue of Article 10 of the Convention on the Rights of the Child dated 20 November 1989. 23. On 26 September 2002 Mr Ma. sent a letter to the Aliens Office advising it that the first applicant had obtained refugee status in Canada and had applied to the Canadian authorities for a visa for her daughter. He asked the Aliens Office to place the second applicant in the care of foster parents on humanitarian grounds in view of her age and position until such time as the Canadian authorities had granted her leave to enter. He added that Ms M., an 18- year-old Belgian national, would make a suitable foster parent. He explained that although the child was being well treated, she was very isolated at the centre and at risk of psychological damage as a result of being detained with adult foreign nationals whom she did not know. The Aid to Young People in the French Community Department, from whom Mr Ma. had sought assistance, supported the proposal. No reply was received to the request. From information in the case file it would appear that the Aliens Office dismissed the idea on the grounds that it would place the second applicant at risk, as a warrant had been issued in 1998 for the arrest of Ms M. ’ s father on suspicion of sexual offences against minors and he lived in the same town as Ms M., albeit at a different address. The Aliens Office also considered that there was a very real danger that the child would be taken away by her uncle. 24. In October 2002 the Aliens Office contacted the Office of the United Nations High Commissioner for Refugees ( UNHCR), the Red Cross and the Belgian embassy in Kinshasa. With the embassy ’ s help it was able, on the basis of K. ’ s statements, to identify and subsequently locate a member of the second applicant ’ s family, namely her maternal uncle, B. (a student living on a university campus with five other people in what the embassy described as suitable accommodation and who, according to the applicants, was the sole member of the family still living in the DRC). An official from the Belgian embassy in Kinshasa went to B. ’ s home and explained the situation to him, but B. told him that he did not have the means to look after the child. 25. On 9 October 2002 the second applicant ’ s lawyer lodged an application for her release with the chambre du conseil of the Brussels Court of First Instance under section 74 / 5, paragraph 1, of the Law of 15 December 1980. In the application, he sought an order setting aside the removal directions of 27 August 2002 and an order for the second applicant ’ s release and placement with Ms M. acting as a foster parent or, failing that, with an institute for young children. In the interim, he also contacted the UNHCR, which made enquiries of the family in Kinshasa from which it emerged that no one was prepared to look after the child. 26. On 10 October 2002 the Belgian authorities booked a seat on a flight on 17 October 2002 with the same airline as the second applicant had flown with on the outward journey (they cited its obligation under section 74 / 4 of the Law of 15 December 1980 to transport at its own cost anyone not in possession of the requisite travel papers or who had been removed on lawful grounds to the country from which he had come or any other country prepared to accept him). The UNHCR, Aid to Young People in the French Community Department and the Belgian embassy in Kinshasa were informed. 27. On 11 October 2002 Brussels Crown Counsel informed the Aliens Office of the second applicant ’ s application and requested the case file, which the Aliens Office supplied on 14 October 2002. 28. According to the Government, B. was informed on 12 October 2002 that his niece would be arriving at 5.45 p.m. on 17 October. 29. In a letter of 15 October 2002, the Aliens Office advised Crown Counsel of its views on the application for the second applicant ’ s release: “... the enquiries have enabled the person concerned ’ s family to be located in Kinshasa. In view of the positive results of the enquiries as a whole, a flight has already been arranged for Thursday 17 October 2002. The child will be met at Kinshasa by her family. A representative from our embassy will also be present. Lastly, we would note that the sole responsibility for the length of the applicant ’ s detention lies with her uncle, who has been uncooperative and has studiously avoided giving the Aliens Office the family ’ s address. Accordingly, in the child ’ s own interest, she should remain in detention until Thursday 17 October 2002, when she can be returned to her own family in Kinshasa. ” On the same day, after receiving confirmation from the Aliens Office that the child was to be removed, the Belgian embassy official in Kinshasa informed B. in the following letter, which was sent by recorded delivery : “Dear Sir, I wish to confirm the message which the embassy has received from the Department in Brussels, namely, the return of your niece Mubilanzila Tabitha to Kinshasa (N ’ Djili ) arriving on the Hewa Bora flight at 5.45 p.m. on Thursday 17 October 2002. Yours faithfully, ... ” 30. On 16 October 2002 the chambre du conseil of the Brussels Court of First Instance held that the second applicant ’ s detention was incompatible with Article 3 § § 1 and 2 of the Convention on the Rights of the Child and ordered her immediate release. Noting that it had no jurisdiction to authorise her placement in a foster home or an institution, it held that the application was well-founded in part. Its decision was served on the director of Transit Centre no. 127 that same day. Crown Counsel, who had the right to appeal against that decision within twenty-four hours, informed the director of the Centre by fax the same day that he was reserving his decision whether or not to appeal. On the same day the UNHCR ’ s representative in Brussels sent a fax to the Aliens Office requesting permission for the second applicant to remain in Belgium while her application for a Canadian visa was being processed. It drew the Office ’ s attention to the fact that there did not appear to be an adult in Kinshasa who was able and willing to look after the second applicant, since, according to the information in its possession, B. was still a student. It added that the first applicant had had refugee status in Canada since 23 July 2001, that the second applicant ’ s father had disappeared in August 2000 and that her twin sister had been taken to Congo- Brazzaville four months earlier. 31. On 17 October 2002 the second applicant was deported to the DRC. She was accompanied by a social worker from Transit Centre no. 127 who placed her in the care of the police at the airport. On board the aircraft she was looked after by an air hostess who had been specifically assigned to accompany her by the chief executive of the airline. The second applicant travelled with three Congolese adults who were also being deported. There were no members of her family waiting for her when she arrived. The Government explained that after considerable efforts the embassy official had obtained B. ’ s agreement to come to the airport to meet his niece. However, he had reneged on his promise at the last minute. 32. The parties have not formally established whether or not a member of the Belgian embassy was at the airport, as stated in the Alien Office ’ s letter of 15 October 2002. The second applicant stayed at the airport until 5.23 p.m. before eventually being collected by Ms T., a secretary at the National Information Agency of the DRC, who offered her accommodation. On the same day the first applicant rang Transit Centre no. 127 and asked to speak to her daughter. She was informed that she was no longer staying at the Centre and advised to contact the Aliens Office for further details, which she did. The Aliens Office did not provide her with any explanation but suggested she speak to the UNHCR, from whom she learnt of her daughter ’ s deportation to Kinshasa. 33. On 18 October 2002 the official from the Belgian embassy in Kinshasa went to B. ’ s home, only to discover that he had disappeared. On the same day the Belgian authorities received a message from the Canadian embassy in The Hague informing them that the first applicant had been granted refugee status and indefinite leave to remain in Canada with a work permit in 2002 and was consequently entitled to have her family join her. 34. The second applicant left the DRC on 23 October 2002 following the intervention of the Belgian and Canadian Prime Ministers, with the latter agreeing in principle to authorise the reunification of the family. The second applicant travelled to Paris with Ms T. and from there to Canada the same day on a Canadian visa. During the stopover in Paris, Ms T. and the second applicant were accompanied by two officials from the Belgian embassy. The journey was paid for by the Belgian authorities. The case had attracted considerable attention from the press in the meantime. 35. On 25 October 2002 the airline which had flown the second applicant back to Kinshasa informed the Aliens Office that she had not travelled alone, but with four other aliens who were also being removed. It said that it had arranged for an air hostess to look after her until she was handed over to the authorities in Kinshasa. 36. On 29 October 2002 the first applicant applied to the Canadian authorities for a visa permitting family reunification. 37. At the request of the Aliens Office, the director of Transit Centre no. 127 described the second applicant ’ s living conditions at the centre in a letter of 23 November 2004. He explained that she had been looked after by two women who were themselves mothers, that she had played with other children, that her uncle and mother had telephoned her nearly every day and that she had been allowed to telephone them free of charge under the supervision of a team of social workers; he added that her lawyer had paid her a number of visits and had brought her telephone cards, confectionary and money, that she had often played outdoors, had watched large numbers of videos, done drawings and arithmetic and had been comforted if she showed any signs of distress after telephone calls from her family. The director also explained that during the removal procedure the second applicant had been accompanied to the embarkation area (more precisely, the federal police checkpoint) by a social worker and that the entire staff at Transit Centre no. 127 were concerned about the welfare of children, particularly unaccompanied minors. | This case concerned in particular the nearly two months long detention at a transit centre for adults run by the Aliens Office near Brussels airport of a five-year old Congolese national travelling alone to join her mother who had obtained refugee status in Canada. |
592 | Case-law of the European Court of Human Rights | I. the circumstances of the case A. The applicant's conviction for insubordination 7. On 9 December 1983 the Athens Permanent Army Tribunal ( Diarkes Stratodikio ), composed of one career military judge and four other officers, convicted the applicant, a Jehovah's Witness, of insubordination for having refused to wear the military uniform at a time of general mobilisation. However, the tribunal considered under Article 70 (b) of the Military Criminal Code and under Article 84 § 2 (a) of the Criminal Code that there were extenuating circumstances and sentenced the applicant to four years' imprisonment. The applicant was released on parole after two years and one day. B. The refusal to appoint the applicant to a chartered accountant's post 8. In June 1988 the applicant sat a public examination for the appointment of twelve chartered accountants, a liberal profession in Greece. He came second among sixty candidates. However, on 8 February 1989 the Executive Board of the Greek Institute of Chartered Accountants (hereinafter “the Board”) refused to appoint him on the ground that he had been convicted of a serious crime ( kakuryima ). C. The proceedings before the Supreme Administrative Court 9. On 8 May 1989 the applicant seised the Supreme Administrative Court ( Simvulio Epikratias ) invoking, inter alia, his right to freedom of religion and equality before the law, as guaranteed by the Constitution and the Convention. The applicant also claimed that he had not been convicted of a crime but of a less serious offence. 10. On 18 April 1991 the Third Chamber of the Supreme Administrative Court held a hearing. On 25 May 1991 it decided to refer the case to the plenary court because of the important issues it raised. The Chamber's own view was that Article 10 of Legislative Decree no. 3329/1955 provided that a person who would not qualify for appointment to the civil service could not be appointed a chartered accountant. Moreover, according to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime could be appointed to the civil service. However, this provision referred to convictions by courts established in accordance with Article 87 § 1 of the Constitution. This was not the case with the permanent military courts, because the majority of their members were not career judges enjoying the same guarantees of independence as their civilian colleagues, as envisaged by Article 96 § 5 of the Constitution. As a result, the applicant's conviction by the Athens Permanent Army Tribunal could not be taken into consideration and the Board's decision not to appoint the applicant a chartered accountant had to be quashed. 11. On 21 January 1994 a hearing was held before the Supreme Administrative Court, sitting in plenary. On 11 November 1994 the court decided that the Board had acted in accordance with the law when, for the purposes of applying Article 22 § 1 of the Civil Servants' Code, it had taken into consideration the applicant's conviction for serious crime by the Athens Permanent Army Tribunal. Article 96 § 5 of the Constitution provided that the military courts would continue functioning as they had before until the enactment of a new law which would change their composition. Such a law had not yet been enacted. The Supreme Administrative Court further decided to refer the case back to the Third Chamber and ordered it to examine the remaining issues. 12. The decision of 11 November 1994 was taken by a majority. The minority considered that, since nine years had passed since the Constitution had entered into force without the law envisaged in Article 96 § 5 thereof having been enacted, the guarantees of independence required from civilian judges had to be afforded by the existing military courts. Since that was not the case with the Athens Permanent Army Tribunal, Mr Thlimmenos's application for judicial review had to be allowed. 13. On 26 October 1995 the Third Chamber held a further hearing. On 28 June 1996 it rejected Mr Thlimmenos's application for judicial review, considering, inter alia, that the Board's failure to appoint him was not related to his religious beliefs but to the fact that he had committed a criminal offence. | A Jehovah’s Witness, the applicant was convicted of a felony offence for having refused to enlist in the army at a time when Greece did not offer alternative service to conscientious objectors to military service. A few years later he was refused appointment as a chartered accountant on the grounds of his conviction despite his having scored very well in a public competition for the position in question. |
1,095 | Respect for private life in the employment context | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1950 and lives in Gothenburg. 10. He is a professor, specialising in child and adolescent psychiatry, at the University of Gothenburg. 11. In the period between 1977 and 1992 a research project was carried out at the University of Gothenburg in the field of neuropsychiatry, focusing on cases of Attention ‑ Deficit Hyperactivity Disorder ( ADHD) or Deficits in Attention, Motor Control and Perception (DAMP) in children. The aim was to elucidate the significance thereof and associated problems from a long-term perspective. Parents to a group of one hundred and forty ‑ one pre ‑ school children volunteered to participate in the study, which was followed up every third year. Certain assurances were made to the children’s parents and later to the young people themselves concerning confidentiality. The research file, called the Gothenburg study, was voluminous and consisted of a large number of records, test results, interview replies, questionnaires and video and audio tapes. It contained a very large amount of privacy-sensitive data about the children and their relatives. Several doctoral theses have been based on the Gothenburg study. The material was stored by the Department of Child and Adolescent Psychiatry, of which the applicant was director. The project was originally set up and started by other researchers but the applicant subsequently took over responsibility for completing the study. 12. The applicant alleged that the Ethics Committee of the University of Gothenburg had made it a precondition in their permits that sensitive information about the individuals participating in the study would be accessible only to the applicant and his staff and that he had therefore promised absolute confidentiality to the patients and their parents. That fact was disputed by the Government. 13. Two permits were issued by the Ethics Committee of the University of Gothenburg, on 9 March 1984 and 31 May 1988 respectively, consisting of one page each and indicating, among other things, the dates of application (respectively 26 January 1984 and 24 March 1988), the researchers involved in the project, the name of the project and the date of approval; they bore the signatures of the chairman and the secretary of the Ethics Committee. They contained no specific requirements and no reference to “secrecy” or “absolute secrecy”. 14. In a letter of 17 February 1984 to the parents of the children participating in the study, the applicant stated, inter alia : “All data will be dealt with in confidentiality and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital, and its present results will, as was the case for the previous study three years ago, be followed up.” 15. A later undated letter from the applicant to the participants in the study included the following wording: “Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be processed in such a way that nobody apart from those of us who met you and have direct contact with you will be able to find out anything at all about you.” A. Proceedings concerning access to the research material 16. In February 2002 a sociologist, K, requested access to the background material. She was a researcher at Lund University and maintained that it was of great importance to have access to the research material and that it could, without risk of damage, be released to her with conditions under Chapter 14, section 9, of the Secrecy Act ( Sekretesslagen; SFS 1980:100). She had no interest in the personal data as such but only in the method used in the research and the evidence the researchers had for their conclusions. Her request was refused by the University of Gothenburg on 27 February 2002 because K had not shown any connection between the requested material and any research, and on the ground that the material contained data on individuals’ health status which, if disclosed, might harm an individual or persons related to that individual. An appeal against the decision was lodged with the Administrative Court of Appeal ( Kammarrätten i Göteborg ), which referred the matter to the University of Gothenburg to examine whether the material could be released after removal of identifying information or with a condition restricting K’s right to pass on or use the data. The University of Gothenburg again refused the request on 10 September 2002, on the ground that the data requested was subject to secrecy, that there was no possibility of releasing the material after removal of identifying information, nor was there sufficient evidence to conclude that the requested material could be released with conditions. K again appealed against the decision to the Administrative Court of Appeal. 17. In the meantime, in July 2002, a paediatrician, E, also requested access to the material. He submitted that he needed to keep up with current research, that he was interested in how the research in question had been carried out and in clarifying how the researchers had arrived at their results, and that it was important to the neuropsychiatric debate that the material should be exposed to independent critical examination. His request was refused by the University of Gothenburg on 30 August 2002, for the same reasons as its refusal to K, a decision against which E appealed to the Administrative Court of Appeal. 18. By two separate judgments of 6 February 2003, the Administrative Court of Appeal found that K and E had shown a legitimate interest in gaining access to the material in question and that they could be assumed to be well acquainted with the handling of confidential data. Therefore, access should be granted to K and E, but subject to conditions made by the University of Gothenburg in order to protect the interests of the individuals concerned in accordance with various named provisions of the Secrecy Act. 19. The University of Gothenburg’s request to the Supreme Administrative Court ( Regeringsrätten) for relief for substantive defects ( resning ) was refused on 4 April 2003. 20. In vain the applicant and some of the individuals participating in the study also applied to the Supreme Administrative Court for relief for substantive defects. Their requests were refused on 4 April, 16 May and 22 July 2003 respectively, because they were not considered to be party to the case ( bristande talerätt). 21. In the meantime, on 7 April 2003 the University of Gothenburg decided that, “provided that the individuals concerned gave their consent”, the documents would be released to K and E with conditions specified in detail in the decisions. 22. K and E appealed against certain of the conditions imposed by the University of Gothenburg. They also reported the University of Gothenburg’s handling of the case to the Parliamentary Ombudsman, which in decisions of 10 and 11 June 2003 criticised the University of Gothenburg, notably regarding the delays in replying to the request for access. 23. In two separate judgments of 11 August 2003, the Administrative Court of Appeal lifted some of the conditions imposed by the university. It pointed out that in the judgments of 6 February 2003 K and E had already been given the right of access to the requested documents and that the only matter under examination was the conditions of access, which could only be imposed if they were designed to remove a given risk of damage, and that a condition should be framed to restrict the recipient’s right of disposal over the data. Thereafter, six conditions were set regarding K’s access, including that the data was only to be used within the Swedish Research Council funded research project called “The neurological paradigm: on the establishment of a new grand theory in Sweden” which K had specified before the Administrative Court of Appeal, that she was not allowed to remove copies from the premises where she was given access to the documents, and that transcripts of released documents containing data on psychological, medical or neurological examinations or treatment, or concerning the personal circumstances of individuals, and notes concerning such examinations, treatment or circumstances from a document released to her, would be destroyed when the above research project was completed and at the latest by 31 December 2004. Six similar conditions were also imposed on E, including that data in the released documents referring to psychological, medical, psychiatric or neurological examinations or treatment, and data in the released documents concerning the personal circumstances of an individual, was to be used for examination of how the researchers who participated in the research project in which the documents had been used had arrived at their results and conclusions, and so that E could generally maintain his competence as a paediatrician. 24. The University of Gothenburg did not have a right to appeal against the judgments and on 5 November 2003 the applicant’s request to the Supreme Administrative Court for relief for substantive defects was refused because he was not considered to be a party to the case. 25. In the meantime, in a letter of 14 August 2003 to the applicant, the Vice ‑ Chancellor of the university stated that, by virtue of the judgments of the Administrative Court of Appeal, K and E were entitled to immediate access to the documents on the conditions specified. Furthermore, by decision of the university, K and E were to be given access to the documents on the university’s premises on a named street and the documents therefore had to be moved there from the Department of Child and Adolescent Psychiatry without delay. The letter stated that the transportation of the documents was to begin on 19 August 2003 at 9 a.m. The applicant was requested to arrange for the documents to be available for collection at that time and, if necessary, to ensure that all the keys to the rooms where the material was kept were delivered to a person P. 26. The applicant replied in a letter of 18 August 2003 that he did not intend to hand over either the material or the keys to the filing cabinets to P. On the same day the Vice-Chancellor had a meeting with the applicant. 27. On instruction by the Vice-Chancellor, on 19 August 2003 P visited the Department of Child and Adolescent Psychiatry. He was met by controller L, who handed him a document showing that L had been instructed by the applicant not to release either the material in question or the keys to the filing cabinets. 28. By letter of 1 September 2003 the Vice-Chancellor of the University of Gothenburg informed K and E that since the applicant refused to transfer the material for the present he could not help them any further and that he was considering bringing the applicant before the Public Disciplinary Board ( Statens ansvarsnämnd ) on grounds of disobedience. 29. On 18 October 2003 the applicant had a meeting with the Vice-Chancellor of the University of Gothenburg about the case. Moreover, in autumn 2003 the applicant and various persons corresponded with the Vice ‑ Chancellor, including a professor of jurisprudence and Assistant Director General of the Swedish Research Council who questioned the judgments of the Administrative Court of Appeal, which prompted the Vice-Chancellor to consider whether it would be possible to impose new conditions on K and E. The case was discussed within the University Board and subsequently, by decision of 27 January 2004, the University of Gothenburg decided to refuse to grant access to K because, in the light of a memorandum drawn up on 12 March 2003 by the Swedish Research Council, there was no connection between K’s research and the research project that she had specified before the Administrative Court of Appeal. Likewise, in a decision of 2 February 2004 the university decided to impose a new condition on E before giving him access. It stated that it had reason to believe that E’s activities and position did not justify giving him access to the material, even subject to restrictions. E thus had to demonstrate that his duties for the municipality included reviewing or otherwise acquiring information about the basic material on which the research in question was based. 30. The decisions were annulled by the Administrative Court of Appeal by two separate judgments of 4 May 2004. 31. The applicant’s request to the Administrative Supreme Court for relief for substantive defects was refused on 28 September 2004 and 1 July 2005, because he was not considered to be party to the case. 32. In the meantime, according to the applicant, the research material was destroyed during the weekend of 7 and 9 May 2004 by three of his colleagues. B. Criminal proceedings against the applicant 33. On 18 January 2005 the Parliamentary Ombudsman decided to initiate criminal proceedings against the applicant and by a judgment of 27 June 2005 the District Court ( Göteborgs Tingsrätt ) convicted the applicant of misuse of office pursuant to Chapter 20, Article 1 of the Penal Code ( Brottsbalken). The applicant was given a suspended sentence and ordered to pay fifty day-fines of 750 Swedish kronor (SEK), amounting to a total of SEK 37,500, (approximately 4,000 Euros (EUR). 34. The Vice-Chancellor of the university was also convicted of misuse of office for having disregarded, through negligence, his obligations as Vice-Chancellor by failing to ensure that the documents were available for release as ordered in accordance with the judgments of the Administrative Court of Appeal. The Vice-Chancellor was sentenced to forty day ‑ fines of SEK 800, amounting to a total of SEK 32,000 (approximately EUR 3,400). 35. The Parliamentary Ombudsman also decided to initiate criminal proceedings against the Chair of the Board of Gothenburg University, but the charges were later dismissed. 36. Finally, by a judgment issued on 17 March 2006, the three officials who had destroyed the research material were convicted of the offence of suppression of documents and given a suspended sentence and fined. 37. On appeal, on 8 February 2006 the applicant’s conviction and sentence were upheld by the Court of Appeal ( Hovrätten för Västra Sverige ) in the following terms: General observations on the university’s management of the case “In its two initial judgments of 6 February 2003 the Administrative Court of Appeal held that K and E were entitled to have access to the documents requested. In its two subsequent judgments of 11 August 2003 the Administrative Court of Appeal decided on the conditions that would apply in connection with the release of the documents to them. The judgments of the Administrative Court of Appeal had therefore settled the question of whether the documents were to be released to K and E once and for all. At the hearing in the Administrative Court of Appeal, the university had the opportunity to present reasons why the documents requested should not be released to K and E. Once the judgments, against which no appeal could be made, had been issued in February 2003, whether or not the university considered that they were based on erroneous or insufficient grounds had no significance. After the February judgments the university was only required to formulate the conditions it considered necessary to avoid the risk of any individuals sustaining harm through the release of the documents. Subsequently the university had the opportunity to present its arguments to the Administrative Court of Appeal for the formulation of the conditions it had chosen. After the Administrative Court of Appeal had determined which conditions could be accepted, the question of the terms on which [K and E] could be allowed access to the documents requested was also settled once and for all. There was then no scope for the university to undertake any new appraisal of K’s and E’s right of access to the documents. Therefore, in the period referred to in the indictment [from 11 August 2003 until 7 May 2004] it was no longer the secrecy legislation that was to be interpreted but the judgments of the Administrative Court of Appeal. Their contents were clear. [The Vice-Chancellor’s] letters of 14 August 2003 to [the applicant] and of 1 September 2003 to K and E show that the university administration had understood that it was incumbent on the university to release the documents without delay. The promptness required by the Freedom of the Press Act in responding to a request for access to a public document should in itself have caused the university to avoid measures leading to further delay in releasing the documents. Despite this, in its interpretation of the conditions and in laying down additional conditions, the university made it more difficult for K and E to gain access to the documents.” The applicant’s liability “The prosecutor has maintained that after the judgments of the Administrative Court of Appeal of 11 August 2003 and until 7 May 2004, when the material is said to have been destroyed, [the applicant] in his capacity as head of the Department of Child and Adolescent Psychiatry, wilfully disregarded the obligations of his office by failing to comply with the judgments of the Administrative Court of Appeal and allow [E and K] access to the documents. According to the indictment, [the applicant] in so doing not only refused to hand over the documents in person but also refused to make them available to the university administration. The research material was the property of the university and hence to be regarded as in the public domain. It was stored in the Department of Child and Adolescent Psychiatry, where [the applicant] was the head. [The Vice-Chancellor’s] letter of 14 August 2003, to which copies of the judgments of the Administrative Court of Appeal relating to the conditions were attached, made it clear to [the applicant] that the material in question must be released. As head of the department, [the applicant] was responsible for making the material available to [K and E]. [The applicant’s] awareness of his immediate responsibility is revealed not least by the instructions that he gave to [L] before the visit of [P] not to allow the university administration access to the material. It is also shown by [the applicant’s] written reply on 18 August 2003 to [the Vice-Chancellor]. Through [the Vice-Chancellor] the university had instructed [the applicant] to release the material to the university, so that it could be moved to premises where K and E could examine it. In view of this, the Court of Appeal, like the District Court, does not consider that [the applicant] can be held culpable because he refused to hand over the documents in person. However, it was incumbent upon him to make the documents available for removal in accordance with the instructions he had received from the university. [The applicant] has protested that he did not consider that there was any serious intent behind the instruction he received from the [Vice-Chancellor] on 14 August 2003. Here he has referred in particular to the meeting on 18 August 2003 and to the fact that P did not follow up his visit to the department and that he received no new directive to make the material available. [The Vice-Chancellor], however, has stated that on no occasion did he withdraw the instructions issued on 14 August 2003, and that it must have been quite clear to [the applicant] that they continued to apply, even though they were not explicitly repeated. According to the Vice-Chancellor, nothing transpired at the meeting on 18 August 2003 that could have given [the applicant] the impression that these instructions no longer applied or that they were not intended seriously. [The Vice-Chancellor’s] statement in this respect has been confirmed by the Director at the Vice-Chancellor’s office, W. It is further borne out by the fact that after the meeting on 18 August 2003 W was given the task of drawing up a complaint to the Government Disciplinary Board for Higher Officials on the subject of [the applicant’s] refusals and that the latter was aware that a complaint of this kind was being considered. In addition, it can be seen from a number of e-mails from [the applicant] to [the Vice-Chancellor] that during the entire autumn he considered that he was required to hand over the documents and that he maintained his original refusal to obey his instructions. It has also been shown that when the Board met on 17 December 2003, [the Vice-Chancellor] was still considering making a complaint to the Disciplinary Board. Finally, [a witness, AW] has testified that at a meeting with [the applicant] shortly after the beginning of 2004, when asked whether he still persisted in his refusal, he confirmed that this was the case. All things considered, the Court of Appeal finds that it has been shown that [the applicant] was aware that the instructions to make the material available to the administration applied during the entire period from when he learnt about the judgments of the Administrative Court of Appeal on 14 August 2003. It was incumbent on him to take the action required to comply with the judgments. [The applicant] has stated that he was never prepared to participate in the release of the documents to K and E. His actions were, in other words, intentional and their result was that K and E were categorically denied a right that is guaranteed by the Constitution and that is also of fundamental importance in principle. All things considered, the Court of Appeal finds that [the applicant’s] conduct means that he disregarded the obligation that applied to him as head of department in such a manner that the offence of misuse of office should be considered. [The applicant] has however also objected that his conduct should be regarded as excusable in view of the other considerations that he had to bear in mind. He has thus claimed that in the situation that had arisen he was prevented by medical ethics and research ethics from disclosing information about the participants in the study and their relatives. He referred in particular to international declarations drawn up by the World Medical Association and to the Convention. The nature of the international declarations agreed on by the World Medical Association is not such as to give them precedence over Swedish law. [The applicant’s] objections on the basis of the contents of these declarations therefore lack significance in this case. Article 8 of the Convention lays down that everyone has the right to respect for his or her private and family life, and that this right may not be interfered with by a public body except in certain specified cases. The provisions of the Secrecy Act are intended, in accordance with Article 8 of the Convention, to protect individuals from the disclosure to others of information about their personal circumstances in cases other than those that can be regarded as acceptable with regard to the right to insight into the workings of the public administration. These regulations must be considered to comply with the requirements of the Convention, and the judgments of the Administrative Court of Appeal lay down how they are to be interpreted in this particular case. [The applicant’s] objection that his conduct was excusable in the light of the Convention cannot, therefore, be accepted. [The applicant] has also asserted that he risked criminal prosecution for breach of professional secrecy if he released the documents to [K and E]. However, the judgments of the Administrative Court of Appeal determined once and for all that the secrecy Act permitted release of the documents. For this reason there was of course no possibility of prosecution for breach of professional secrecy, which, in the opinion of the Court of Appeal, [the applicant] must have realised. [The applicant] has also stated that he was bound by the assurances of confidentiality he had given to the participants in the study in accordance with the requirements established for the research project. The assurances were given in 1984, in the following terms: “All data will be dealt with in confidence and classified as secret. No data processing that enables the identification of your child will take place. No information has been provided previously or will be provided to teachers about your child except that when starting school she/he took part in a study undertaken by Östra Hospital and its present results will, as was the case for the previous study three years ago, be followed up.” A later assurance of confidentiality had the following wording: “Participation is of course completely voluntary and as on previous occasions you will never be registered in public data records of any kind and the data will be processed in such a way that nobody apart from those of us who met you and have direct contact with you will be able to find out anything at all about you.” The assurances of confidentiality given to the participants in the study go, at least in some respects, further than the Secrecy Acts permits. The Court of Appeal notes that there is no possibility in law to provide greater secrecy than follows from the Secrecy Act and that it is not possible to make decisions on issues concerning confidentiality until the release of a document is requested. It follows therefore that the assurances of confidentiality cited above did not take precedence over the law as it stands or a court’s application of the statutes. [The applicant’s] objections therefore have no relevance in assessing his criminal liability. Finally, [the applicant] has claimed that his actions were justifiable in view of the discredit that Swedish research would incur and the decline in willingness to participate in medical research projects that would ensue if information submitted in confidence were then to be disclosed to private individuals. The Court of Appeal notes that there are other possibilities of safeguarding research interests, for example by removing details that enable identification from research material so that sensitive information cannot be divulged. What [the applicant] has adduced on this issue cannot exonerate him from liability. [The applicant’s] actions were therefore not excusable. On the contrary, for a considerable period he failed to comply with his obligations as a public official arising from the judgments of the Administrative Court of Appeal. His offence cannot be considered a minor one. [The applicant] shall therefore be found guilty of misuse of office for the period after 14 August 2003, when he was informed of the judgments of the Administrative Court of Appeal. The offence is a serious one as [the applicant] wilfully disregarded the constitutional right of access to public documents. On the question of the sentence, the Court of Appeal concurs with the judgment of the District Court. 38. Leave to appeal to the Supreme Court was refused on 25 April 2006. III. THE HELSINKI DECLARATION 52. The Helsinki Declaration, adopted by the 18th World Medical Association’s General Assembly in Finland in June 1964, with later amendments, states, inter alia : INTRODUCTION 1. The World Medical Association (WMA) has developed the Declaration of Helsinki as a statement of ethical principles for medical research involving human subjects, including research on identifiable human material and data. The Declaration is intended to be read as a whole and each of its constituent paragraphs should not be applied without consideration of all other relevant paragraphs. 2. Although the Declaration is addressed primarily to physicians, the WMA encourages other participants in medical research involving human subjects to adopt these principles. 3. It is the duty of the physician to promote and safeguard the health of patients, including those who are involved in medical research. The physician’s knowledge and conscience are dedicated to the fulfilment of this duty. 4. The Declaration of Geneva of the WMA binds the physician with the words, "The health of my patient will be my first consideration," and the International Code of Medical Ethics declares that, "A physician shall act in the patient’s best interest when providing medical care." 5. Medical progress is based on research that ultimately must include studies involving human subjects. Populations that are underrepresented in medical research should be provided appropriate access to participation in research. 6. In medical research involving human subjects, the well-being of the individual research subject must take precedence over all other interests. ... 10. Physicians should consider the ethical, legal and regulatory norms and standards for research involving human subjects in their own countries as well as applicable international norms and standards. No national or international ethical, legal or regulatory requirement should reduce or eliminate any of the protections for research subjects set forth in this Declaration. BASIC PRINCIPLES FOR ALL MEDICAL RESEARCH 11. It is the duty of physicians who participate in medical research to protect the life, health, dignity, integrity, right to self-determination, privacy, and confidentiality of personal information of research subjects. ... 14. The design and performance of each research study involving human subjects must be clearly described in a research protocol. The protocol should contain a statement of the ethical considerations involved and should indicate how the principles in this Declaration have been addressed. The protocol should include information regarding funding, sponsors, institutional affiliations, other potential conflicts of interest, incentives for subjects and provisions for treating and/or compensating subjects who are harmed as a consequence of participation in the research study. The protocol should describe arrangements for post-study access by study subjects to interventions identified as beneficial in the study or access to other appropriate care or benefits. 15. The research protocol must be submitted for consideration, comment, guidance and approval to a research ethics committee before the study begins. This committee must be independent of the researcher, the sponsor and any other undue influence. It must take into consideration the laws and regulations of the country or countries in which the research is to be performed as well as applicable international norms and standards but these must not be allowed to reduce or eliminate any of the protections for research subjects set forth in this Declaration. The committee must have the right to monitor ongoing studies. The researcher must provide monitoring information to the committee, especially information about any serious adverse events. No change to the protocol may be made without consideration and approval by the committee. ... 23. Every precaution must be taken to protect the privacy of research subjects and the confidentiality of their personal information and to minimize the impact of the study on their physical, mental and social integrity. 24. In medical research involving competent human subjects, each potential subject must be adequately informed of the aims, methods, sources of funding, any possible conflicts of interest, institutional affiliations of the researcher, the anticipated benefits and potential risks of the study and the discomfort it may entail, and any other relevant aspects of the study. The potential subject must be informed of the right to refuse to participate in the study or to withdraw consent to participate at any time without reprisal. Special attention should be given to the specific information needs of individual potential subjects as well as to the methods used to deliver the information. After ensuring that the potential subject has understood the information, the physician or another appropriately qualified individual must then seek the potential subject’s freely-given informed consent, preferably in writing. If the consent cannot be expressed in writing, the non-written consent must be formally documented and witnessed. ... | This case essentially concerned a professor’s criminal conviction for misuse of office in his capacity as a public official, for refusing to comply with two administrative court judgments granting access, under specified conditions, to the University of Gothenburg’s research on hyperactivity and attention deficit disorders in children to two named researchers. |
853 | Interception of communications, phone tapping and secret surveillance | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant, who was born in 1940, is a businessman living in Switzerland. In the early 1980s he imported depilatory appliances into Switzerland which he advertised in magazines. 8. On 12 October 1981 a woman telephoned the applicant from the former Soviet embassy in Berne to order a “Perma Tweez” depilatory appliance. 9. That telephone call was intercepted by the Federal Public Prosecutor’s Office ( Bundesanwaltschaft – “the Public Prosecutor’s Office”), which then requested the Intelligence Service of the police of the Canton of Zürich to carry out an investigation into the applicant and the goods he sold. 10. The report drawn up by the police of the Canton of Zürich in December 1981 stated that the applicant, who had been registered in the Commercial Registry since 1973, was in the aerosols business. It stated that “Perma Tweez” was a battery-operated depilatory appliance; a leaflet describing the appliance was appended to the report. 11. On 24 December 1981 the Public Prosecutor’s Office drew up a card on the applicant for its national security card index on the basis of the particulars provided by the police of the Canton of Zürich. 12. In 1990 the public learned of the existence of the card index being kept by the Public Prosecutor’s Office and many people, including the applicant, asked to consult their card. 13. Various laws on accessing and processing the Confederation’s documents were then enacted. 14. On 12 September 1990 the special officer in charge of the Confederation’s national security documents (“the special officer”) sent the applicant, at his request, a photocopy of his card. 15. The applicant’s card, which was numbered (1153 : 0) 614 and on which two passages had been blue-pencilled ..., contained the following information: “from the Zürich Intelligence Service: A. identified as a contact with the Russian embassy according to .... A. does business of various kinds with the [A.] company. Appendices: extract from the Commercial Registry and leaflet. ...” 16. As soon as he received his card, the applicant asked the Ombudsman at the Public Prosecutor’s Office to disclose the blue-pencilled passages. 17. On 9 October 1990 the Ombudsman replied that the censored passage at the end of the card rightly concealed the initials of the federal police officers who had obtained the information on the card. The other censored passage related to a technical surveillance measure ordered against a third party; the Ombudsman stated that he would be recommending that the special officer disclose that information, since – in his view – the applicant’s interest prevailed over the public interest in keeping it secret. 18. On 19 April 1991 the special officer decided, on the basis of Article 5 § 1 of the Order of 5 March 1990 on the Processing of Federal National Security Documents, that the initials at the end of the card could not be disclosed. He also considered that the other censored passage contained counter-intelligence which, pursuant to Article 5 § 3 (a) of the Order, should not be disclosed. On the basis of those considerations, the disclosure of the applicant’s card was extended to one word (“report”): “from the Zürich Intelligence Service: A. identified as a contact with the Russian embassy according to report ... A. does business of various kinds with the [A.] company. Appendices: extract from the Commercial Registry and leaflet. ...” 19. On 26 October 1991 the applicant filed a request for compensation with the Federal Department of Finance. His request was refused on 28 January 1992. 20. On 9 March 1992 the applicant filed an administrative-law action with the Federal Court claiming compensation from the Confederation of 5,000 Swiss francs for the unlawful entry of his particulars in the card index kept by the Public Prosecutor’s Office. He also requested that his file and card be sent immediately to the Federal Archives with a prohibition on making any copies and that they be ordered to store the information under lock and key and not disclose any of it without his agreement. 21. On being invited to submit its written observations, the Confederation stated, in its memorial of 26 May 1992, that according to the information provided by the Public Prosecutor’s Office and the special officer the record of the surveillance was no longer in the federal police’s files. It pointed out in that connection that, pursuant to section 66(1 ter ) of the Federal Criminal Procedure Act (“FCPA”), documents which were no longer necessary had to be destroyed (“ Das Protokoll der technischen Ueberwachung ist gemäss Auskunft der Bundesanwaltschaft und des Sonderbeauftragten ... in den Akten der Bundespolizei nicht mehr vorhanden. In diesem Zusammenhang ist anzumerken, dass nicht mehr benötigte Akten gemäss Art. 66 Abs. 1ter BStP ... vernichtet werden müssen ”). 22. The Federal Court held hearings on 27 October 1993 and 14 September 1994. The applicant’s lawyer pointed out that the case number of the card, namely (1153 : 0) 614, was a code meaning “communist country” (1), “Soviet Union” (153), “espionage established” (0) and “various contacts with the Eastern bloc” (614). The Confederation’s representative stated that where someone ( jemand ) at the former Soviet embassy was under surveillance, on every telephone call both parties to the conversation were identified, a card drawn up on them and a telephone monitoring report ( Telefon-Abhör-Bericht ) made. In that connection she stated that most of the reports had been destroyed and that those which had not been were now stored in bags; the intention had been to destroy them as well, but when the post of special officer had been instituted everything had had to be maintained “in its present state”. She went on to state that she did not know whether the telephone monitoring report in respect of the applicant had or had not been destroyed. According to information she had received from the special officer, the reports had not been sorted and it would require about five people and one year’s work to examine the contents of all the bags still in existence. 23. In a judgment of 14 September 1994, which was served on 25 January 1995, the Federal Court dismissed all the applicant’s claims. 24. Regarding the issue whether there was a legal basis for the measures complained of, the Federal Court referred first to section 17(3) FCPA and Article 1 of the Federal Council’s Decree of 29 April 1958 on the Police Service of the Federal Public Prosecutor’s Office. However, it considered it unnecessary to examine whether those provisions could have provided a lawful basis for the alleged infringement of the applicant’s personality rights, since one of the conditions for awarding compensation had not been met. 25. The court then referred to sections 66 et seq., and particularly section 72 FCPA on the monitoring of telephone communications and postal correspondence, and to Articles 265 et seq. of the Criminal Code, which govern “crimes or major offences against the State,” and reiterated that information could lawfully be gathered – even before a prosecution was brought – in order to prevent an offence being committed against the State or national security if there was evidence that such an offence was being prepared. 26. In that connection the Federal Court found: “... a card was drawn up on the plaintiff in connection with the then monitoring of telephone communications with the Soviet embassy for counter-intelligence reasons. As he had contacts with a male or female employee of the Soviet embassy and it was not immediately clear that the ‘Perma Tweez’ appliance which he sold was a harmless depilatory instrument, the authorities acted correctly in investigating his identity, his circumstances and the ‘Perma Tweez’ appliance in question and recording the result.” 27. The Federal Court held, however, that it did not have to rule on whether those provisions, particularly section 66(1 ter ) FCPA, allowed the information thus obtained to be kept after it had become apparent that no criminal offence was being prepared (“ Fraglich ist, ob die Aufzeichnungen weiter aufbewahrt werden durften, nachdem sich offenbar herausgestellt hatte, dass keine strafbare Handlung vorbereitet wurde ”), since the applicant had not suffered a serious infringement of his personality rights. 28. In that connection the Federal Court reiterated that, pursuant to section 6(2) of the Federal Liability Act of 14 March 1958, the Swiss Confederation had a duty to pay compensation in cases of serious infringement of personality rights, but considered that in this case that condition had not been met. The Federal Court held that the mere fact that the applicant had been named in the file as a “contact with the Russian embassy” could hardly be considered as an infringement of his personality rights. Moreover, even if part of the case number meant “espionage established”, there was nothing to indicate that the authorities had considered the applicant to be a spy and although the expression “contact with the Russian embassy” could conceivably imply that the applicant had effectively had regular contact with the embassy, his card had to be seen, not in isolation, but in the wider context of the card index as a whole and the other circumstances of the case; in particular, the fact that no other entry had been made on his card suggested that the authorities did not suspect the applicant of having illegal contacts with the embassy. Furthermore, it could not be presumed that the applicant had been subject to surveillance on other occasions or that the recorded information had been disclosed to third parties. Taken as a whole, the applicant’s file thus appeared to be of minor importance and there was nothing to indicate that it had been used for other purposes or unlawfully disclosed. 29. Lastly, the Federal Court held that the applicant’s administrative-law action, which he had filed with it on 9 March 1992, was an “effective remedy” within the meaning of Article 13 of the Convention. It also pointed out that the applicant could have instituted proceedings challenging certain data in the Public Prosecutor’s card index and requesting that they be amended. In that connection the Federal Court referred to, inter alia, the Federal Council’s Directives of 16 March 1981 applicable to the Processing of Personal Data in the Federal Administration (section 44), to the Federal Decree of 9 October 1992 on the Consultation of Documents of the Federal Public Prosecutor’s Office (Article 7 § 1) and to the Federal Council’s Order of 20 January 1993 on the Consultation of Documents of the Federal Public Prosecutor’s Office (Article 11 § 1). 30. In 1996 the applicant’s card was removed from the card index and transferred to the Federal Archives where it cannot be consulted for fifty years. | This case concerned a telephone call to the applicant from the former Soviet embassy – to order a depilatory appliance advertised by him – intercepted by the public prosecutor’s office, which requested the intelligence service to draw up a file on the applicant. |
63 | Adoption | I. THE CIRCUMSTANCES OF THE CASE 1. General background (a) Adoption procedure 7. The US nationals ( “the US applicants ” ) started proceedings for the adoption of children from Russia between 2010 and 2012. They had complied with the requirements set by the United States authorities, having obtained favourable appraisals of their living and financial conditions and their suitability to adopt a child. Some of the applicants had had to comply with additional requirements laid down in the Agreement between the United States of America and the Russian Federation Regarding Cooperation in Adoption of Children (“Bilateral Agreement on Adoption”) upon its entry into force on 1 November 2012. They then applied to the competent Russian authorities who, except in those cases where the adoption proceedings had focussed on a particular child from the outset, provided them with information concerning the children who were available for adoption. 8. In most cases the US applicants received a positive decision from the Russian authorities regarding both the impossibility of placing the child in a Russian family and their suitability to become adoptive parents. As part of the adoption procedure, they obtained a referral to visit the child concerned, which enabled them to spend several days with him or her at the respective orphanage. They visited the children and reaffirmed their formal agreement to adopt them. In some cases, according to the US applicants, they had formed a bond with the child even before initiating the adoption procedure, and one case concerned the adoption of the brother of a previously adopted girl (cases nos. 23890/13, 37173/13 and 42340/13 respectively; see the specific circumstances below). In such cases the adoption procedure referred to a particular child from the outset. Many of the prospective adoptive children suffer from serious health issues and require specialist medical care. 9. By the end of 2012 most of the US applicants had completed all the requisite steps of the adoption procedure prior to submitting the adoption application to a court. However, on 21 December 2012 the Russian State Duma adopted the Federal Law no. 272-FZ on Measures in respect of Persons Involved in a Breach of Fundamental Human Rights and Freedoms, Rights and Freedoms of Nationals of the Russian Federation (“Law no. 272 ‑ FZ”), which, inter alia, banned the adoption of Russian children by nationals of the United States. The law entered into force on 1 January 2013. 10. Adoption proceedings were halted in respect of those US applicants who had not submitted an adoption application to a court before the entry into force of Law no. 272-FZ. 11. In respect of those US applicants who had submitted an adoption application to a court but had not attended a hearing before the entry into force of Law no. 272-FZ, the courts discontinued the adoption proceedings, relying on Law no. 272-FZ. Some of the applicants appealed. Their appeals were dismissed. 12. Applications for adoption submitted by US nationals after 1 January 2013 were rejected on procedural grounds, with similar reference to Law no. 272-FZ. Where an application had been submitted on behalf of the US applicants by an adoption agency, it was rejected on the grounds that the agency could not submit an application to the court because the activities of such agencies had been banned. Where the application had been submitted by some other kind of representative, it was rejected because it should have been submitted by such an adoption agency only. 13. The US applicants were subsequently removed from the State databank containing information on prospective adoptive parents, meaning that they could no longer be considered as such. 14. After spring 2013 some of the prospective adoptive children were transferred for adoption by different families or placed in foster families. (b) Circumstances surrounding the entry into force of the Bilateral Agreement on Adoption and Law no. 272-FZ 15. On 13 July 2011 the United States and the Russian Federation signed the Bilateral Agreement on Adoption setting out the procedure for intercountry adoption between the two States. It entered into force on 1 November 2012. 16. On 21 December 2012 the Russian State Duma adopted Law no. 272-FZ ‒ which was signed by the President on 28 December 2012 ‒ also known as the “Anti-Magnitsky Law” or the “Dima Yakovlev Law” due to the circumstances underlying its adoption. The law has been described as a response to the Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012 passed by the United States Congress in November / December 2012 and signed by the US President on 14 December 2012 ( the “ Magnitsky Act”). The Magnitsky Act imposed sanctions on the Russian officials who were thought to be responsible for the death of Sergei Magnitsky, a lawyer who had exposed alleged large-scale tax fraud involving State officials and subsequently died in custody. The Magnitsky Act prohibited the Russian officials from entering the United States and using the United States ’ banking system. The list of the eighteen individuals concerned was made public by the Administration of the President of the United States. 17. The Russian authorities ’ response involved the passing of a similar act in respect of United States nationals responsible for gross human rights violations, prohibiting their entry into Russia and freezing their assets within Russia. However, Section 4 § 1 of Law no. 272 ‑ FZ also introduced a ban on the adoption of Russian children by United States nationals. The introduction of that provision was prompted by the death in 2008 of Dima Yakovlev, a Russian toddler adopted by United States nationals. He was left alone for nine hours strapped in his adoptive father ’ s car after the latter forgot to take him to his day-care centre. The father was eventually acquitted of involuntary manslaughter. This news created a stir in the Russian media and resulted in the highlighting of a number of abuse cases involving Russian children adopted by United States nationals, leading to calls from certain Russian authorities to restrict or end adoptions by US nationals. 18. On 28 December 2012 the United States Department of State released a statement concerning the adoption of Law no. 272-FZ which read, insofar as relevant: “We deeply regret Russia ’ s passage of a law ending inter-country adoptions between the United States and Russia and restricting Russian civil society organizations that work with American partners. American families have adopted over 60,000 Russian children over the past 20 years, and the vast majority of these children are now thriving thanks to their parents ’ loving support. The Russian government ’ s politically motivated decision will reduce adoption possibilities for children who are now under institutional care. We regret that the Russian government has taken this step rather than seek to implement the bilateral adoption agreement that entered into force in November. We are further concerned about statements that adoptions already underway may be stopped and hope that the Russian government would allow those children who have already met and bonded with their future parents to finish the necessary legal procedures so that they can join their families.” 19. On 1 January 2013 Law no. 272-FZ entered into force. On the same date the Russian Ministry of Foreign Affairs informed the US Embassy in Moscow that, pursuant to Section 4 § 2 of Law no. 272-FZ, Russia was terminating the Bilateral Agreement on Adoption. Pursuant to Article 17 of the Bilateral Agreement on Adoption, it should have remained in force until one year from the date on which one of the States Parties informed the other Party of its intention to terminate the Agreement, and this move therefore caused confusion regarding the validity of the agreement and the outcome of the pending adoption cases involving prospective adoptive parents from the United States. 20. During a briefing on 8 January 201 3, a United States Department of State spokesperson announced that Russia had informed the United States of its intention to suspend the Bilateral Adoption Agreement. 21. On 10 January 2013 news agencies including the BBC and RIA Novosti reported that the Russian President ’ s Press Secretary had stated that the Bilateral Agreement on Adoption was still in force on that date and that it would remain valid until early January 2014. On the afternoon of the same day the Russian Ministry of External Affairs posted a comment on its website stating that Russia had not merely suspended the Bilateral Agreement on Adoption but had terminated it, and that a communication to this effect had been handed over to the United States Embassy in Moscow on 1 January 2013. 22. On 13 January 2013 about twenty thousand people gathered on the streets of Moscow to take part in an action called March Against Scoundrels to protest against Law no. 272-FZ. 23. The law was also criticised by human rights organisations including Amnesty International and Human Rights Watch and received numerous negative reactions from the media, including Time, The Economist and The Guardian. Most of the critical commentators argued that the law was politically motivated and detrimental to the children ’ s interests. 24. On 15 January 2013 forty-eight members of the United States Congress sent a letter to the President of Russia, Vladimir Putin, on behalf of the United States families affected by Law no. 272-FZ. The letter requested exemption for families who were in the final stages of the adoption procedure and invited Russia to re-join the Bilateral Agreement on Adoption. 25. On 22 January 2013 the Russian Supreme Court issued a letter instructing the lower courts to allow the transfer of adopted Russian children into families of United States nationals where the adoption decision had been taken prior to 1 January 2013, even if it had entered into force after that date. 26. Proceedings in all cases involving prospective adoptive parents from the United States in which a decision on adoption had not been delivered before 1 January 2013 were halted, irrespective of the status of the proceedings. 27. On 2 July 2013 the Parliamentary Assembly of the Organization for Security and Cooperation in Europe (OSCE) adopted a Resolution on Intercountry Adoption in which it called on member States “to recognize the foundational bond between prospective adoptive parents and the child and to honor and protect these nascent families” and urged them “to resolve differences, disputes, and controversies related to intercountry adoptions in a positive and humanitarian spirit” so as “to avoid any general, indiscriminate disruption of intercountry adoptions already in progress that could jeopardize the best interests of the child, harm the nascent family, or deter prospective adoptive parents from pursuing an intercountry adoption” see paragraph 301 below). Although Russia was not specifically referred to in the Resolution, it was introduced by US Senator Roger Wicker in direct response to the ban on adoptions by United States nationals. 28. According to a news report by RIA Novosti of 5 July 2013, the Russian Ministry of External Affairs dismissed as futile any attempts by the OSCE Parliamentary Assembly to make Russia annul the previously adopted decisions concerning intercountry adoption, the latter being in full compliance with international law. 2. Specific circumstances (a) Application no. 6033/13 29. Application no. 6033/13 was lodged on 22 January 2013 by three groups of applicants. (i) First group of applicants 30. A.J.H., born on 16 May 1976, and J.A.H., born on 26 June 1977, who live in Vaughn, Montana, United States (the US applicants ), and D.M., who was born on 17 August 2009 and lives in Lobnya, the Moscow Region. 31. D.M. suffers, in particular, from Down syndrome, delayed psychological and speech development, congenital heart disease and insufficient blood flow. He was born prematurely. 32. Having completed the necessary steps for intercountry adoption within the United States, the US applicants were registered in the Russian State databank as prospective adoptive parents on 6 August 2012. They were assisted by the authorised adoption agency “Hand in Hand”. 33. On 24 September 2012 the US applicants obtained a referral to visit D.M. from the Ministry of Education and Science. They visited him every day between 24 and 28 September 2012 and again between 10 and either 13 or 14 January 2013 [2]. Each visit lasted between an hour and an hour and a half. 34. On 27 September 2012 the US applicants formally agreed to adopt D.M. 35. On 15 November 2012 the adoption application was submitted to the Moscow Regional Court. The hearing initially scheduled for 21 December 2012 was rescheduled for 15 January 2013 at the applicants ’ request. 36. On 10 January 2013 the US applicants arrived in Russia and visited D.M. every day between 10 and either 13 or 14 January 2013 [3]. 37. On 15 January 2013 the US applicants appeared before the court. However, the hearing was adjourned at the request of the Ministry of Education of the Moscow Region, which cited a lack of guidance from the Supreme Court of Russia on the application of Law no. 272-FZ. A new hearing was scheduled for 21 January 2013. 38. On 21 January 2013 the US applicants appeared before the court. However, the Moscow Regional Court postponed the hearing until 11 February 2013 in response to a similar request from the Ministry of Education of the Moscow Region. 39. On 22 January 2013 the US applicants left for the United States. They booked a flight for 9 February 2013 in order to be present at the next hearing. 40. On 23 January 2013 the US applicants ’ representative, Ms Zakharina [4], was informed that the hearing had been rescheduled for an earlier date, namely 30 January 2013. This left the US applicants insufficient time to reschedule their trip to Russia, and they were unable to be present at the hearing. 41. On 30 January 2013 the Moscow Regional Court discontinued the adoption procedure on the grounds that under Law no. 272-FZ the US applicants had no right to adopt D.M. The US applicants appealed. 42. On 14 May 2013 the Moscow Regional Court upheld the decision of 30 January 2013. The US applicants lodged cassation appeal. 43. On 26 August 2013 the Moscow Regional Court refused leave to have the cassation appeal examined by the Presidium. 44. According to the Government, D.M. has been placed with a foster family. (ii) Second group of applicants 45. G.D.C., born on 14 August 1980 and who lives in Salt Lake City, Utah, United States ( “ the US applicant ” ), and E.G., who was born on 28 May 2010 and lives in St. Petersburg. 46. E.G. is developmentally delayed, HIV positive and suffers from ectopic dermatitis. 47. The US applicant initiated the adoption procedure in December 2011. Having completed the necessary steps for intercountry adoption within the United States, the US applicant was registered in the Russian State databank as a prospective adoptive parent on 8 November 2012. She was assisted by the authorised adoption agency “Hand in Hand”. 48. On 28 November 2012 the US applicant obtained a referral to visit E.G. from the Ministry of Education and Science. She visited her every day between 28 November and 1 December 2012. Each visit lasted approximately two hours. 49. On 3 December 2012 the US applicant formally agreed to adopt E.G. 50. On 11 February 2013 the adoption application was submitted to the St. Petersburg City Court. 51. On 13 February 2013 the St. Petersburg City Court rejected the application on the grounds that G.D.C. could not be represented by her representative, E.F., because an application of this kind could only be submitted by an authorised agency. The US applicant appealed. 52. On 5 March 2013 the US applicant tried to visit E.G. at the orphanage but was denied access. 53. On 12 March 2013 the US applicant resubmitted the application through another representative, O.T. 54. On 21 March 2013 the second application was rejected for the same reasons. The US applicant appealed. 55. On 2 and 12 April 2013 the St. Petersburg City Court dismissed the appeals against its decisions of 13 February and 21 March 2013 respectively. 56. On 31 May 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent. 57. According to the Government, E.G. has been placed with a foster family. (iii) Third group of applicants 58. J.M., born on 1 June 1981, and A.M., born on 14 April 1982, who live in Gainesville, Georgia, United States (the US applicants ), and V.T., who was born on 30 September 2008 and lives in Mytischy, the Moscow Region. 59. V.T. is developmentally delayed, he suffers from Down syndrome, hearing loss, heterotropy, intrauterine hypoxia, congenital heart disease (he underwent heart surgery in 2009 where an electric cardiostimulator was implanted), and a number of other illnesses. 60. The US applicants, who have two biological children and one adopted child, initiated the procedure to adopt another child in March 2012. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 17 August 2012. They were assisted by the authorised adoption agency “Hand in Hand”. 61. On 1 October 2012 the US applicants obtained a referral to visit V.T. from the Ministry of Education and Science. They visited him every day between 1 and 5 October 2012 and again between 17 and 21 January 2013. Each visit lasted four hours. 62. On 3 October 2012 the US applicants formally agreed to adopt V.T. 63. On 30 November 2012 the adoption application was submitted to the Moscow Regional Court. The hearing initially scheduled for 22 January 2013 was rescheduled for 12 February 2013 at the request of the Ministry of Education. However, on the same date the prosecutor requested that the proceedings be speeded up due to the uncertainty over the child ’ s fate. Eventually the hearing was rescheduled for 31 January 2013. 64. On 31 January 2013 the Moscow Regional Court discontinued the adoption procedure on the grounds that under Law no. 272-FZ the US applicants had no right to adopt V.T. The US applicants appealed. 65. On 14 May 2013 the Moscow Regional Court upheld the decision of 31 January 2013 on appeal. The US applicants lodged cassation appeal. 66. On 10 December 2013 the Moscow Regional Court refused leave to have the cassation appeal examined by the Presidium. 67. On 22 April 2013 the US applicants were removed from the State databank as prospective adoptive parents, an action of which they were not informed until 26 April 2013. 68. According to the Government, V.T. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about him. (b) Application no. 8927/13 69. Application no. 8927/13 was lodged on 4 February 2013 by J.J., born on 12 December 1983, and Jn.J., born on 25 January 1984, who live in Dover, New Jersey, United States (the US applicants ), and A.M., who was born on 27 January 2007 and lives in Moscow. 70. A.M. is HIV positive and suffers from developmental disorders, strabismus and enuresis. 71. The US applicants initiated the adoption procedure in March 2012. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 16 November 2012. They were assisted by the authorised adoption agency “Hand in Hand”. 72. On 26 November 2012 the US applicants obtained a referral to visit A.M. from the Ministry of Education and Science. They visited her every day between 27 and 30 November 2012. Each visit lasted two to three hours. 73. On 28 December 2012 the adoption application was submitted to the Moscow Regional Court. The hearing was first scheduled for 8 February 2013, but then rescheduled for 31 January 2013. As it left the US applicants insufficient time to reschedule their trip to Russia, they asked the court to postpone the hearing. 74. On 31 January 2013 the Moscow Regional Court rejected the request to postpone the hearing and discontinued the adoption procedure on the grounds that under Law no. 272-FZ the US applicants had no right to adopt V.T. The US applicants appealed. 75. On 14 May 2013 the Moscow Regional Court upheld the decision of 31 January 2013 on appeal. 76. On 22 April 2013 the US applicants were removed from the State databank as prospective adoptive parents. 77. According to the Government, A.M. has been placed with a foster family. (c) Application no. 10549/13 78. Application no. 10549/13 was lodged on 11 February 2013 by J.E.L., born on 1 June 1962 and A.M.L., born on 4 February 1972, who live in Williamsport, Pennsylvania, United States (the US applicants ), and S.T., who was born on 29 November 2011 and lives in Volgograd. 79. S.T. had prenatal contact with HIV and hepatitis C and suffers from a developmental disorder. 80. The US applicants initiated the adoption procedure in December 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 13 June 2012. They were assisted by the authorised adoption agency “Christian World Adoptions, Inc.”. 81. On 23 October 2012 the US applicants obtained a referral to visit S.T. from the Ministry of Education and Science. They visited her twice a day between 24 and 29 October 2012. Each visit lasted two hours. 82. On 3 December 2012 the adoption application was submitted to the Volgograd Regional Court. 83. On 1 February 2013 the adoption procedure was discontinued on the grounds that under Law no. 272-FZ the US applicants had no right to adopt S.T. 84. On 15 February 2013 the US applicants appealed. On 20 February 2013 the Volgograd Regional Court stayed the appeal proceedings and instructed the US applicants to correct certain deficiencies by 20 March 2013. On 3 April 2013 the appeal statement was returned to the US applicants. On 25 April 2013 they resubmitted the appeal. On 7 May 2013 the Volgograd Regional Court extended the time-limit for appeal. 85. On 20 June 2013 the Volgograd Regional Court upheld the decision of 1 February 2013. 86. On 14 February 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. 87. S.T. has been adopted by a different adoptive family. (d) Application no. 12275/13 88. Application no. 12275/13 was lodged on 18 February 2013 by nine groups of applicants. (i) First group of applicants 89. M.S.P., born on 15 May 1974, and A.N.P., born on 6 March 1980, who live in Papillon, Nebraska, United States (the US applicants ), and A.A., who was born on 21 June 2005 and lives in St. Petersburg. 90. A.A. suffers from Down syndrome, moderate mental deficiency, delay in physical development, strabismus, planovalgus deformity, and hyperbilirubinemia. 91. The US applicants initiated the adoption procedure in August 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 6 September 2012. They were assisted by the authorised adoption agency “Hand in Hand”. 92. On 8 October 2012 the US applicants obtained a referral to visit A.A. from the Committee on Social Policy of the St. Petersburg Administration. They visited her on three days in October 2012. Each visit lasted between one and a half and two hours. 93. On 20 December 2012 the adoption application was submitted to the St. Petersburg City court. 94. On 24 December 2012 the application was returned to the US applicants ’ representative, E.F. In the court ’ s ruling, it was stated that it had been returned at E.F. ’ s request. According to the US applicants, they did not ask E.F. to withdraw the application, and she did not apply to the court to have it withdrawn. Rather, the court asked her to take it back. The US applicants were not informed of this ruling, but having learned about it, they filed a complaint against it, arguing that they had never requested their representative to withdraw the application and that the power of attorney did not empower her to do that. On 4 June 2013 the St. Petersburg City Court set aside the ruling of 24 December 2012. It appears that no further decisions were taken in the case. 95. On 31 May 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. 96. According to the Government, A.A. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about her. (ii) Second group of applicants 97. D.S.G., born on 29 May 1974 and who lives in New York, New York, United States (the US applicant ), and O.N., who was born on 24 June 2011 and lives in St. Petersburg. 98. O.N. suffers from a mixed developmental disorder, atopic dermatitis, food allergies and hypermetria of both eyes with astigmatism. 99. The US applicant initiated the adoption procedure in December 2011. Having completed the necessary steps for intercountry adoption within the United States, she was registered in the Russian State databank as a prospective adoptive parent on 9 October 2012. She was assisted by the authorised adoption agency “International Assistance Group, Inc.”. 100. On 24 December 2012 the US applicant obtained a referral to visit O.N. from the Committee on Social Policy of the St Petersburg Administration. She visited her twice a day between 24 and 28 December 2012. Each visit lasted two hours. 101. On 28 December 2012 the US applicant formally agreed to adopt O.N. 102. On 11 February 2013 the adoption application was submitted to the St. Petersburg City Court by the adoption agency. 103. On 13 February 2013 the St. Petersburg City Court rejected the application on the grounds that as of 1 January 2013 the agency ’ s activity had been banned in Russia pursuant to Law no. 272-FZ. On 4 March 2013 the US applicant appealed. 104. On 25 March 2013 the appeal statement was returned to the US applicant without examination on the grounds that it had been lodged outside the applicable time-limit. 105. On 31 May 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent. 106. According to the Government, O.N. has been adopted by a different adoptive family. (iii) Third group of applicants 107. B.C., born on 13 June 1965, and J.W.S., born on 4 January 1955, who live in Sag Harbor, New York, United States (the US applicants ), and A.R., who was born on 24 March 2010 and lives in St. Petersburg. 108. A.R. was abandoned by her parents, who suffered from substance addictions, at the age of eleven months. She is hepatitis C positive and suffers from a mixed developmental disorder and planovalgus deformity. 109. The US applicants had two children, a son and a daughter. After their daughter died of paediatric cancer at the age of twelve, they decided to adopt a child, since their son did not wish to be an only child. The US applicants initiated the adoption procedure in February 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 18 October 2012. They were assisted by the authorised adoption agency “International Assistance Group, Inc.”. 110. On 28 November 2012 the US applicants obtained a referral to visit A.R. from the Committee on Social Policy of the St Petersburg Administration. They visited her twice a day between 27 and 30 November 2012. Each visit lasted two hours. 111. On 3 December 2012 the US applicants formally agreed to adopt A.R. 112. On 10 February 2013 the adoption application was submitted to the St. Petersburg City Court by the adoption agency. 113. On 13 February 2013 the St. Petersburg City Court rejected the application on the grounds that, as of 1 January 2013, the agency ’ s activity had been banned in Russia pursuant to Law no. 272-FZ. 114. On 31 May 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. 115. According to the Government, A.R. has been adopted by a different adoptive family. ( iv) Fourth group of applicants 116. T.L.B.-S., born on 21 June 1968 and who lives in Oldtown, Maryland, United States (the US applicant ), and V.O., who was born on 7 August 2005 and lives in St. Petersburg. 117. V.O. suffers from Down syndrome, mental deficiency, umbilical hernia, planovalgus deformity, atopic dermatitis and hypermetria of a light degree. 118. The US applicant has two biological children and a son adopted from Russia. She decided to adopt another child and, having completed the necessary steps for intercountry adoption within the United States, she was registered in the Russian State databank as a prospective adoptive parent on 1 November 2012. The US applicant was assisted by the authorised adoption agency “Small World Adoption Foundation of Missouri Inc.”. 119. On 12 November 2012 the US applicant obtained a referral to visit V.O. from the Committee on Social Policy of the St Petersburg Administration. She visited her daily on several days in November 2012. Each visit lasted between one and a half and two hours. 120. On 19 November 2012 the US applicant formally agreed to adopt V.O. 121. According to the US applicant, she did not have sufficient time to prepare all the necessary documents in order to be able to submit the adoption application to a court before the entry into force of Law no. 272 ‑ FZ. After its entry into force she realised that this would be futile, although she remained willing to adopt V.O. 122. On 31 May 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent. 123. According to the Government, V.O. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about her. (v) Fifth group of applicants 124. S.M., born on 12 May 1966, and K.M., born on 30 April 1968, who live in Lake Elsinore, California, United States (the US applicants ), and V.G., who was born on 19 December 2005 and lives in St. Petersburg. 125. V.G. suffers from Down syndrome, moderate mental deficiency, strabismus and hypermetria. 126. Having completed the necessary steps for intercountry adoption within the United States, the US applicants were registered in the Russian State databank as prospective adoptive parents on 9 February 2012. They were assisted by the authorised adoption agency “Hand in Hand”. 127. On 18 July 2012 the US applicants obtained a referral to visit V.G. They visited her every day between 18 and 20 July 2012. Each visit lasted three hours. 128. On 25 July 2012 the US applicants formally agreed to adopt V.G. 129. On 26 November 2012 the adoption application was submitted to a court by the US applicants ’ representative E.F. from the adoption agency. 130. According to the Government, on 30 November 201 2 [5] the St. Petersburg City Court stayed the proceedings and instructed the US applicants to rectify certain shortcomings by 30 December 201 2 [6]. In particular, they were asked to corroborate the powers of their representative to act as such in matters concerning adoption in view of the fact that the power of attorney had been issued to E.F. as a private person, whereas pursuant to Article 4 § 4 of the Bilateral Agreement on Adoption only authorised agencies could act as representatives. On 9 January 2013 the application was returned to E.F. on the grounds that the shortcomings had not been rectified. 131. According to the US applicants, they were never informed of any alleged shortcomings in their adoption application. Furthermore, several days before 1 January 2013 a judge had called E.F. and had asked her to withdraw the application, even though E.F. ’ s power of attorney did not authorise her to do so. Several days later E.F. found out that the application had been “lost” and the only record of submission was a note in the court ’ s register. 132. The US applicants also allege that on 11 January 2012 the head of a branch of adoption agency “Hand in Hand” had asked the Chairman of the St. Petersburg Committee on Social Policy for permission to continue its activity as an adoption agency in St. Petersburg through its legal representatives E.F. and I.Z. The permission was granted, and on 11 January 2012 the adoption agency “Hand in Hand” issued E.F. with a power of attorney valid for three years to represent the interests of adoptive parents before the courts of St. Petersburg. 133. According to the Government, the St. Petersburg Committee on Social Policy did not have the competence to authorise the activity of an adoption agency. The matter fell within the exclusive competence of the Ministry of Education. E.F. and I.Z. were registered at the Ministry of Education as employees of the adoption agency “Hand in Hand” during the period 2009-11. 134. According to the US applicants, on 12 and 28 March and 3 April 2013 their representative O.T. requested a copy of the St. Petersburg City Court ’ s ruling on their application. However, the file was not in the registry and she was not presented with a copy. On 11 April 2013 O.T. resubmitted her request to Judge G. and the President of the St. Petersburg City Court. In a letter of 16 April 2013 Judge G. refused to provide her with a copy of the ruling. On 22 April 2013 O.T. filed a complaint against the refusal. It is not clear whether the complaint has been examined. 135. According to the Government, O.T. ’ s request was refused as there were no procedural means whereby to provide persons acting as intermediaries in adoption proceedings with copies of documents. 136. On 31 May 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. 137. According to the Government, V.G. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about her. (vi) Sixth group of applicants 138. Q.S., born on 8 April 1979, and W.S., born on 6 May 1980, who live in Salt Lake City, Utah, United States (the US applicants ), and D.K., who was born on 26 May 2011 and lives in Perm. 139. D.K. suffers from Down syndrome, psychomotor development delay, anomaly in heart development, partial atrophy of optic discs, astigmatism and cytomegalovirus infection. 140. The US applicants initiated the adoption procedure in July 2012. Having completed the necessary steps for intercountry adoption within the United States, the US applicants were registered in the Russian State databank as prospective adoptive parents on 11 December 2012. They were assisted by the authorised adoption agency “Global Adoption Services Inc.”. 141. On 19 December 2012 the US applicants obtained a referral to visit D.K. They visited her twice a day between 19 and 21 December 2012. Each visit lasted approximately two hours. 142. On 21 December 2012 the US applicants formally agreed to adopt D.K. 143. The adoption application was not submitted to the court. According to the US applicants, it would have been submitted if it had not been for the entry into force of Law no. 272-FZ. 144. According to the Government, on 24 April 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. According to the US applicants, they were never informed of this fact. 145. According to the Government, D.K. has been placed with a foster family. (vii) Seventh group of applicants 146. S.A.K., born on 9 May 1960 and who lives in Chicago, Illinois, United States (the US applicant ), and K.R., who was born on 31 May 2009 and lives in St. Petersburg. 147. K.R. suffers from a mixed developmental disorder, planovalgus deformity, adenoids, hypertrophy of palatine tonsils, hepatosplenomegaly and physiological phimosis. 148. The US applicant has already adopted a girl from Russia. She decided to adopt another child and initiated the adoption procedure in May 2012. Having completed the necessary steps for intercountry adoption within the United States, the US applicant was registered in the Russian State databank as a prospective adoptive parent on 9 October 2012. The US applicant was assisted by the authorised adoption agency “International Assistance Group Inc.”. 149. On 21 November 2012 the US applicant obtained a referral to visit K.R. from the Committee on Social Policy of the St Petersburg Administration. She visited her every day between 21 and 23 November 2012. Each visit lasted two hours. 150. On 27 November 2012 the US applicant formally agreed to adopt K.R. 151. On 11 February 2013 the adoption application was submitted to the St. Petersburg City Court by T. from the adoption agency. 152. On 13 February 2013 the court returned the application on the grounds that the activity of the adoption agency had been banned pursuant to Law no. 272-FZ. The US applicant appealed. 153. On 27 March 2013 the appeal statement was returned on the grounds that it had been submitted in breach of procedural rules. In particular, it failed to state whether the US applicant had been provided with a translation of the ruling and her signature had not been certified by a notary. The US applicant filed a complaint against this ruling. 154. On 20 June 2013 the complaint was returned without examination. 155. On 31 May 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent. 156. According to the Government, K.R. has been adopted by a different adoptive family. (viii) Eighth group of applicants 157. C.B., born on 1 December 1967, and T.B., born on 23 October 1966, who live in Pittsburgh, Pennsylvania, United States (the US applicants ), and A.E.A., who was born on 22 August 2011 and lives in Perm. 158. A.E.A. suffers from delay of psychomotor and speech development delay, anomaly in heart development, umbilical hernia and had prenatal contact with HIV. 159. The US applicants initiated the adoption procedure in May 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 6 February 2012. They were assisted by the authorised adoption agency “Adopt a Child”. 160. On 19 November 2012 the US applicants obtained a referral to visit A.E.A. They visited her twice a day between 19 and 23 November 2012. Each visit lasted between one and a half and two hours. 161. The adoption application was not submitted to a court. According to the US applicants, after their visit to Russia in November 2012 they had to amend a number of documents in their adoption file so as to make it conform with the Bilateral Agreement on Adoption. However, Law no. 272 ‑ FZ left them no time to submit the adoption application to a court before its entry into force. 162. On 24 April 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. 163. According to the Government, A.E.A. has been placed with a foster family. (ix) Ninth group of applicants 164. J.R.V., born on 3 January 1973, and M.L.V., born on 27 May 1973, who live in Aurora, Colorado, United States (the US applicants ), and Dz.L., who was born on 13 July 2010 and lives in St. Petersburg. 165. On 4 April 2014 the US applicants ’ representative informed the Court that they wished to withdraw the application. (e) Application no. 23890/13 166. Application no. 23890/13 was lodged on 5 April 2013 by M.W., born on 2 February 1961, and D.W., born on 17 March 1964, who live in Woodstock, Virginia, United States (the US applicants ), and M.K., who was born on 21 March 1998 and lives in Chelyabinsk. 167. M.K. was born prematurely. He suffers, in particular, from Russell ‑ Silver syndrome, light cognitive disorder, delay of neurological and behavioural development and chronic gastritis. 168. Between 2001 and 2012 the US applicants were involved in charity work in the Chelyabinsk Region. In particular, they helped with the renovation of an orphanage, where in 2008 they met M.K. 169. According to the US applicants, having developed a close relationship with M.K., in the winter of 2011-2012 they decided to adopt him and initiated the adoption procedure. They contacted about forty adoption agencies asking for assistance with the procedure. However, their attempts were unsuccessful as no adoption agency worked with the Chelyabinsk Region. For this reason they decided to proceed on their own, although the adoption agency Beacon House Adoption Services agreed to provide them with advice on the procedure. 170. In March 2012, during a consultation at the Ministry of Social Relations of the Chelyabinsk Region, the US applicants expressed their wish to adopt M.K. According to the US applicants, the ministry confirmed that there were no authorised adoption agencies operating in the Chelyabinsk Region and stated that the US applicants could proceed on their own. At the same time their adoption file was rejected on the grounds that the apostille on certain documents was incorrect and some additional documents were required. 171. In March 2012 the US applicants twice visited M.K. at the orphanage, with each meeting lasting three hours. 172. On 30 July 2012 the US applicants submitted to the Ministry of Social Relations of the Chelyabinsk Region a corrected set of documents for the adoption of M.K. 173. However, on 8 August 2012 the Minister of Social Relations of the Chelyabinsk Region informed the US applicants that, since the Bilateral Agreement on Adoption had been ratified, with effect from 10 August 2012 individual applications for adoption could not be accepted. For this reason he returned their application for non- compliance with the requirements set by Government Decree no. 654 of 4 November 2006 (see paragraph 318 below). 174. On 17 August 2012 the US applicants contacted the Head of the State databank, who wrongly informed them that the Bilateral Agreement on Adoption had not been ratified and that they could proceed with the adoption procedure on their own. 175. In a telephone conversation on 20 August 2012 the US applicants told the Ministry of Social Relations of the Chelyabinsk Region about the information received from the Head of the State databank. According to the ministry, it was awaiting official clarifications from the Head of the State databank to this effect. 176. On 22 August 2012 the US applicants again contacted the Ministry of Social Relations of the Chelyabinsk Region by telephone and were told that they could proceed with the adoption on their own. 177. On 22 August 2012 according to the US applicants and on 4 September 2012 according to the Government, the adoption file was resubmitted to the Ministry of Social Relations of the Chelyabinsk Region. 178. On 19 September 2012 the adoption file was returned and the US applicants were requested to amend certain documents and to enclose some additional documents. 179. On 3 December 2012, having amended the adoption file, the US applicants again resubmitted the application. By that time the Bilateral Agreement on Adoption ‒ including a provision stating that an adoption application might only be submitted through an authorised agency ‒ had entered into force. 180. On 11 December 2012 the Ministry of Social Relations of the Chelyabinsk Region rejected the application on the grounds that it had been submitted by the US applicants directly and not by an authorised adoption agency. It was recommended that the US applicants re-apply via an agency. 181. According to the applicants, the adoption procedure was eventually halted by the entry into force of Law no. 272-FZ. 182. The US applicants were never registered in the State databank as prospective adoptive parents. 183. According to the Government, since 1 September 2014 M.K. has been attending the South Urals Vocational School ( Южно-Уральский многопрофильный колледж ) and lives in the school dormitory. (f) Application no. 26309/13 184. Application no. 26309/13 was lodged on 18 April 2013 by C.Z., born on 29 October 1974, and S.Z., born on 2 October 1976, who live in Simpsonville, South Carolina, United States (the US applicants ), and A.K., who was born on 8 November 2008 and lives in Zelenogradsk. 185. A.K. suffers from psychological developmental disorder, speech development delay, enuresis and dysarthria. A.K. was taken from his home by social workers in August 2011 as he had been neglected and possibly abused by his parents. 186. The US applicants have previously adopted a boy from Russia. They initiated the procedure for adoption of another child in April 2012. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents. They were assisted by the authorised adoption agency “Adoption Associates Inc.”. 187. On 15 October 2012 the US applicants obtained a referral to visit A.K. from the Ministry of Education of the Kaliningrad Region. They visited him twice a day between 15 and 19 October 2012. They spent four to five hours per day with A.K. 188. On 19 October 2012 the US applicants formally agreed to adopt A.K. 189. According to the Government, the US applicants never made an application to a court for A.K. ’ s adoption. 190. According to the US applicants, they submitted the adoption application to the Kaliningrad Town Court, and the hearing was scheduled for 17 January 2013. On 28 December 2012 they were informed that the hearing had been cancelled due to the adoption of Law no. 272-FZ. 191. On 30 April 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. 192. According to the Government, A.K. has been adopted by a different adoptive family. (g) Application no. 27161/13 193. Application no. 27161/13 was lodged on 11 April 2013 by S.S., born on 13 March 1978, and G.S. born on 30 January 1982, who live in Shirley, New York [7], United States (the US applicants ), and E.O., who was born on 14 September 2009 and lives in Perm. 194. E.O. is HIV positive. She suffers from speech development delay, slight anomaly in heart development, atopic dermatitis, vegetative dysfunction of the Keith-Flack node and planovalgus deformity. 195. The US applicants initiated the adoption procedure in March 2012. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 6 September 2012. 196. On 6 September 2012 the US applicants obtained a referral to visit E.O. from the Ministry of Education of the Perm Region. They visited her twice a day between 6 and 12 September 2012. Each visit lasted approximately two hours. 197. On 10 September 2012 the US applicants formally agreed to adopt E.O. They were not assisted by any adoption agencies. 198. According to the Government, no adoption application was ever submitted to a court. 199. According to the US applicants, the adoption application had been finalised by 28 December 2012. However, the procedure was halted by the entry into force of Law no. 272-FZ. 200. On 24 April 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. 201. According to the Government, E.O. has been adopted by a different adoptive family. According to the US applicants, her adoptive parents are not Russian nationals either, and in 2013 E.O. was taken to Ireland. (h) Application no. 29197/13 202. Application no. 29197/13 was lodged on 29 April 2013 by C.M.S., born on 27 February 1967 and who lives in New York, NY, United States (the US applicant ), and A.N., who was born on 9 December 2011 and lives in St. Petersburg. 203. At birth A.N. ’ s umbilical cord was wrapped around his neck, which led to a number of complications. He suffers from congenital heart disease, open foramen oval; congenital renal disease, pyelectasis; mixed psychological development disorder and motor and speech development delay. 204. The US applicant initiated the adoption procedure in early 2012. Having completed the necessary steps for intercountry adoption within the United States, the US applicant was registered in the Russian State databank as a prospective adoptive parent on 15 November 2012. The US applicant was assisted by the authorised adoption agency “Adopt a Child Inc.”. 205. On 19 December 2012 the US applicant obtained a referral to visit A.N. from the Committee on Social Policy of the St Petersburg Administration. She visited him twice a day between 19 and 21 December 2012. Each visit lasted between an hour and an hour and a half. 206. On 26 December 2012 the US applicant formally agreed to adopt A.N. 207. On 18 February 2013 an adoption application dated 9 January 2012 was submitted to the St. Petersburg City Court by D. acting on the basis of a power of attorney. 208. On 19 February 2013 the St. Petersburg City Court returned the application without examination on the grounds that the power of attorney had been issued to D. as a private person whereas, pursuant to Article 4 § 4 of the Bilateral Agreement on Adoption, only authorised agencies were permitted to act as representatives. No appeal was lodged against the ruling. 209. On 31 May 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent. 210. According to the Government, A.N. has been adopted by a different adoptive family. (i) Application no. 32224/13 211. Application no. 32224/13 was lodged on 13 May 2013 by R.K.B., born on 21 December 1969, and T.B., born on 7 December 1973, who live in Wetumpka, Alabama, United States (the US applicants ), and V.B., who was born on 3 March 2012 and lives in Volgograd. 212. V.B. suffers from a motor dysfunction, psychological development disorder, heart defects such as open oval window and lesion of the mitral valve, and had prenatal contact with hepatitis C. 213. The US applicants have previously adopted a girl from Kazakhstan. In September 2011 they initiated the procedure to adopt another child from Russia. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 27 June 2012. They were assisted by the authorised adoption agency “Christian World Adoption Inc.”. 214. On 13 December 2012 the US applicants obtained a referral to visit V.B. from the Ministry of Education of the Volgograd Region. They visited her twice daily between 14 and 20 December 2012. Each visit lasted approximately two hours. 215. On 20 December 2012 the US applicants formally agreed to adopt V.B. 216. The adoption application was never submitted to a court. According to the US applicants, the adoption procedure was halted by the entry into force of Law no. 272-FZ. 217. On 30 January 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. 218. According to the Government, V.B. has been adopted by a different adoptive family. (j) Application no. 32331/13 219. Application no. 32331/13 was lodged on 16 May 2013 by D.M.L., born on 25 February 1972, and De.M.L., born on 7 November 1968, who live in Omaha, Nebraska, United States (the US applicants ), and R.P., who was born on 19 February 2012 and lives in Vladivostok. 220. R.P. was born prematurely. He suffers from prenatal encephalopathy of anoxic-ischemic genesis, a light anomaly in heart development in the form of an additional chord of the left heart ventricle, and narrowing of palpebral fissure. 221. The US applicants initiated the adoption procedure in January 2012. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 20 November 2012. They were assisted by the authorised adoption agency “Beacon House Adoption Services, Inc.”. 222. On 17 December 2012 the US applicants obtained a referral to visit R.P. They visited him daily between 17 and 21 December 2012. Each visit lasted between an hour and an hour and a half. 223. The US applicants formally agreed to adopt R.P. However, according to the Government, they had not signed the statement confirming that they had studied his medical file. Therefore, the subsequent steps set out in Government Decree no. 217 of 4 April 2002 prior to submission of an adoption application to a court were not taken. In particular, no confirmation was received from the State databank that the child was available for adoption. 224. The adoption application was never submitted to a court. 225. On 31 July 2013 the US applicants were removed from the State databank as prospective adoptive parents. 226. On 31 October 2013 the US applicants filed a complaint against the Directorate of Education and Science of the Primorye Region and the Administration of the Primorye Region to the Leninskiy District Court of Vladivostok. They claimed that the defendants had prevented them from finalising the adoption procedure. 227. On 5 November 2013 the complaint was returned without examination on the grounds of lack of territorial jurisdiction. 228. On 18 November 2013 the US applicants ’ representative D. resubmitted the complaint to the Frunzenskiy District Court of Vladivostok. 229. On 19 December 2013 the Frunzenskiy District Court of Vladivostok dismissed the complaint, having found that the US applicants ’ removal from the State databank as prospective adoptive parents was compliant with Law no. 272-FZ. The US applicants appealed. 230. On 3 April 2014 the Primorye Regional Court upheld the decision of 19 December 2013. 231. According to the Government, R.P. has been adopted by a different adoptive family. (k) Application no. 32351/13 232. Application no. 32351/13 was lodged on 16 May 2013 by J.F.B., born on 24 October 1966 and who lives in Boston, Massachusetts, United States (the US applicant ), and M.I. who was born on 18 April 2011 and lives in Vsevolzhsk, the Leningrad Region. 233. M.I. was born prematurely and suffers from speech and psychomotor development delay, internal hydrocephalus, and a congenital heart defect. 234. The US applicant initiated the adoption procedure in July 2011. Having completed the necessary steps for intercountry adoption within the United States, she was registered in the Russian State databank as a prospective adoptive parent on 19 September 2012. The US applicant was assisted by the authorised adoption agency “Adopt a Child Inc.”. 235. On 8 October 2012 the US applicant obtained a referral to visit M.I. She visited her every day between 8 and 12 October 2012. Each visit lasted between an hour and a half and two hours. 236. On 9 October 2012 according to the US applicant and on 11 October 2012 according to the Government, the US applicant formally agreed to adopt M.I. 237. On 19 December 2012 the US applicant submitted the adoption application to the Leningrad Regional Court. 238. On 25 December 2012 the Leningrad Regional Court stayed the proceedings due to certain shortcomings in the documents submitted. In particular, on the certificate confirming that the US applicant had undergone the requisite training for prospective adoptive parents, her middle name was not indicated, causing the court to express doubts as to whether the certificate had actually been issued to her. In addition, the validity of the certificate confirming her living conditions had expired on 7 November 2012 and she therefore needed to renew it. Moreover, the application did not contain any information about M.I. ’ s father and siblings, if any; the medical certificate detailing M.I. ’ s state of health failed to include the opinions of certain doctors; information about the US applicant ’ s income was not accurate; and a document corroborating the US applicant ’ s housing rights was not attached. The court instructed the US applicant to rectify the shortcomings by 28 February 2013. According to the Government, the above decision was not appealed against and became final on 2 February 2013. 239. On 17 January 2013 the Leningrad Regional Court discontinued the adoption proceedings and returned the application without examination on the grounds that, pursuant to Law no. 272-FZ, the US applicant did not have a right to adopt M.I. According to the US applicant, she appealed. It is not clear whether the appeal was examined. 240. On 15 February 2013 the US applicant was removed from the State databank as a prospective adoptive parent. According to the Government, she was informed of this on 30 May 2013. According to the US applicant, she never received any information to this effect. 241. According to the Government, M.I. has been adopted by a different adoptive family. According to the US applicant, M.I. ’ s adoptive parents are not Russian nationals either. (l) Application no. 32368/13 242. Application no. 32368/13 was lodged on 16 May 2013 by L.A.P., born on 3 March 1966, and J.N.T., born on 5 August 1971, who live in Long Beach, NY, United States (the US applicants ), and K.K., who was born on 24 August 2010 and lives in St. Petersburg. 243. K.K. was abandoned at birth by her mother, who was a drug addict. She suffers from mixed psychological disorders and hypotrophy of the first degree. 244. The US applicants initiated the adoption procedure in 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 16 August 2012. They were assisted by the authorised adoption agency “New Hope Christian Services”. 245. On 20 February 2012 the US applicants obtained a referral to visit K.K. from the Committee on Social Policy of the St Petersburg Administration. They visited her every day between 21 and 23 February 2012. Each visit lasted approximately two hours. 246. On 29 February 2012 the US applicants formally agreed to adopt K.K. 247. On 8 November 2012 the adoption application was submitted to the St. Petersburg City Court. 248. On 12 November 2012 the St. Petersburg City Court stayed the proceedings on the grounds that certain documents were not enclosed and instructed the US applicants to submit them by 11 December 2012. At the US applicants ’ request, the deadline was subsequently extended to 15 January 2013. According to the US applicants, after the entry into force of the Bilateral Agreement on Adoption, they had to comply with additional requirements introduced by the Agreement. Later they also had to provide proof that their house had not been affected by Hurricane Sandy, which hit the north - eastern United States in October 2012. 249. On 15 January 2013 the St. Petersburg City Court returned the application without examination on the grounds that the additional documents submitted by the applicants were not complete. In particular, the section of the report on the US applicants ’ living conditions containing the date and signature had not been translated. A photograph of the child ’ s room was not informative. Moreover, there were no photographs of the US applicants with K.K., and a document confirming that the US applicants had undergone the requisite training for prospective adoptive parents had not been enclosed. No appeal was lodged against this ruling. 250. On 22 May 2013 the US applicants ’ representative S. resubmitted the adoption application. 251. On 23 May 2013 St. Petersburg City Court returned the application without examination on the grounds that it had been submitted by a private person acting on the US applicants ’ behalf, whereas pursuant to virtue of Article 4 § 4 of the Bilateral Agreement on Adoption it could only be submitted by an authorised agency. The US applicants appealed. 252. On 20 June 2013 St. Petersburg City Court returned the appeal statement without examination, making reference to Law no. 272-FZ. 253. On 31 May 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. 254. According to the Government, K.K. has been adopted by a different adoptive family. (m) Application no. 37173/13 255. Application no. 37173/13 was lodged on 7 June 2013 by J.W.H., born on 29 July 1981, A.M.H., born on 18 March 1969 (the US applicants ) and G.N.Y.H., born on 3 December 2008, who live in Smartsville, California, United States, and V.B., who was born on 14 November 2001 and lives in Prokopyevsk. 256. V.B. suffers from light mental development delay, light speech development delay and a mixed form of dysgraphia and dyslexia. 257. On 5 July 2010 the US applicants adopted the third applicant, G.N.Y.H. As a result of what appears to be a clerical mistake, the information about her siblings had not been included in the State databank. 258. According to the Government, the information regarding G.N.Y.H. ’ s brother, V.B., had been included in G.N.Y.H. ’ s file, however, and the US applicants had studied this in March 2010. 259. In the decision of the Kemerovo Region Court of 5 July 2010 on G.N.Y.H. ’ s adoption it was stated that although G.N.Y.H. had an elder brother, V.B., the court considered it possible for G.N.Y.H. to be adopted alone because the children were being placed in different institutions, their family relations had been interrupted, and the adoption was in the interests of G.N.Y.H. 260. According to the US applicants, having learned that G.N.Y.H. had a brother, they started corresponding with V.B. and sent him letters, photos and parcels. They also started making enquiries with a view to adopting V.B. as well. In a letter of 29 April 2011 the prosecutor ’ s office of the Kemerovo Region advised the US applicants that, as they had been registered as the prospective adoptive parents in respect of one particular child, they would have to reapply to the competent authorities and resubmit documents amended accordingly should they wish to adopt another child. In a letter of 15 June 2011 the same prosecutor ’ s office acknowledged that the information on G.N.Y.H. ’ s siblings had not been included in the State databank as a result of a clerical mistake. It noted, however, that the information about V.B. had been included in G.N.Y.H. ’ s personal file, which the US applicants had studied on 24 March 2010. The prosecutor ’ s office also confirmed that V.B. was available for adoption and that it was open to the US applicants to apply to the competent authorities for his adoption. The US applicants then initiated the adoption procedure. 261. On 12 May 2012 “Hand in Hand”, an authorised adoption agency acting on behalf of the US applicants, filed an application for V.B. ’ s adoption with the Directorate of Education and Science of the Kemerovo Region. On the same date the US applicants were registered in the State databank as prospective adoptive parents. 262. According to the Government, the US applicants had initially intended to visit V.B. in June 2012, but they asked if they might change the dates of their visit to October 2012. However, they did not reapply for a later visit. Accordingly, they were never issued with a referral to visit V.B. and never met him. 263. According to the US applicants, at the relevant time they had also applied to adopt another child from Russia, X., and they had accepted a referral to visit her in June 2012. They then also received a referral to visit V.B. in June 2012. Although they were willing to meet both children, they were advised that it was necessary to finalise the adoption of X. first. Accordingly, they asked for permission to visit V.B. in October 2012. However, they were subsequently advised that in July 2012 the regional authorities had banned the adoption of children by US nationals following an incident of ill-treatment of a child from the Kemerovo Region by his adoptive parents from the United States. 264. In December 2012, when the US applicants went to Russia to finalise the adoption of X., they learned that the regional ban on adoption of children by US nationals had been lifted. However, the US applicants were unable to proceed with the adoption of V.B. due to the entry into force of the Law no. 272-FZ. 265. According to the Government, V.B. is living in an orphanage. (n) Application no. 38490/13 266. Application no. 38490/13 was lodged on 12 June 2013 by A.B., born on 24 July 1964 and who lives in Bellevue, Nebraska [8], United States (the US applicant ), and Ye.L., who was born on 23 July 2009 and lives in Novosibirsk. 267. Ye.L. was born prematurely. He suffers from hearing loss, speech development delay and respiratory ailments. 268. The US applicant initiated the adoption procedure in 2008. As the adoption agency ’ s licence was later revoked, she had to restart the procedure in 2011. Having completed the necessary steps for intercountry adoption within the United States, the US applicant was registered in the Russian State databank as a prospective adoptive parent on 25 June 2012. 269. On 19 July 2012 the US applicant obtained a referral to visit Ye.L. She visited him on four consecutive days in July 2012. 270. On 22 July 2012 the US applicant formally agreed to adopt Ye.L. 271. According to the US applicant, preparation of an adoption file took more time after the entry into force of the Bilateral Agreement on Adoption, which stipulated a number of additional requirements. The adoption application was ultimately not submitted to a court due to the entry into force of Law no. 272-FZ. 272. On 10 June 2013 the US applicant was informed that she had been removed from the State databank as a prospective adoptive parent. 273. According to the Government, Ye.L. has been placed with a foster family. (o) Application no. 42340/13 274. Application no. 42340/13 was lodged on 30 June 2013 by M.B., born on 28 December 1966, and D.B., born on 9 November 1968, who live in Alabaster, Alabama, United States (the US applicants ), and K.S., who was born on 29 November 2005 and lives in St. Petersburg. 275. K.S. suffers from psychological development delay, atopic dermatitis, planovalgus deformity and a phonematic disorder. 276. Between 13 December 2010 and 17 January 2011 K.S. stayed at the US applicants ’ home as a part of the orphan - hosting programme “New Horizons for Children”. 277. As soon as K.S. had left, the US applicants started making enquiries about adoption. In March 2011 they started the adoption procedure. 278. On 20 February 2012 the US applicants were registered in the State databank as prospective adoptive parents. 279. After 2011, the US applicants met with K.S. on three occasions. Each time they came to St. Petersburg for a week and visited K.S. daily. Each visit lasted from two to three hours. 280. According to the Government, on 13 December 2011 the US applicants submitted the application for K.S. ’ s adoption to the St. Petersburg City Court. As certain documents were not enclosed, the proceedings were stayed and the US applicants were instructed to submit the documents requested by 10 January 2012. The term was then extended to 9 February 2012. As the US applicants failed to submit the documents, on the latter date the adoption application was returned to them without examination. No appeal was lodged against this ruling. 281. According to the US applicants, in November-December 2011 and February-March 2012 they had travelled to Russia as they wished to adopt K.S. and her younger brother. It transpired that they were unable to go ahead with the adoption because, although K.S. ’ s mother ’ s parental rights had been revoked, the revocation of her father ’ s parental rights was pending but not yet finalised. This issue was resolved in March 2012. However, in April 2012 the US applicants were informed that K.S. ’ s biological mother had had a baby girl, and that K.S. thus had two siblings. In May 2012 they amended the adoption file so as to apply for adoption of three children: K.S. and both her brother and sister. In September 2012 they were obliged to comply with additional requirements introduced by the Bilateral Agreement on Adoption, which included additional training courses. The adoption procedure was ultimately halted by the entry into force of Law no. 272-FZ. 282. According to the Government, K.S. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about her. (p) Application no. 42403/13 283. Application no. 42403/13 was lodged on 30 June 2013 by M.M., born on 20 September 1974, and J.M., born on 9 August 1976, who live in Westminster, MD, United States (the US applicants ), A.M., who was born on 11 June 2002 and lives in Furmanov, the Ivanovo Region, and D.T., who was born on 22 October 2002 and lives in Kineshma, the Ivanovo Region. 284. A.M. and D.T. are not related. Their parents have been stripped of parental rights. D.T. suffers from mitral heart prolapse, residual encephalopathy, mixed disorder of psychological development and gallbladder anomaly. A.M. had been adopted at the age of five years old but was then returned to the orphanage. She suffers from a mixed disorder of psychological development and light myopia. 285. The US applicants initiated the adoption procedure in 2011. Having completed the necessary steps for intercountry adoption within the United States, they were registered in the Russian State databank as prospective adoptive parents on 11 April 2012. They were assisted by the authorised adoption agency “Hand in Hand”. 286. On 13 September 2012 the US applicants obtained a referral to visit both A.M. and D.T. from the Department of Social Security of the Ivanovo Region so as to choose between the two girls. They visited D.T. twice and A.M. three times in September 2012 and eventually decided to adopt both girls. 287. On 27 September 2012 the US applicants formally agreed to adopt A.M. and D.T. According to the US applicants, A.M. and D.T. met and bonded. 288. On 31 October 2012 the adoption application was submitted to the Ivanovo Regional Court. 289. On 6 November 2012 the Ivanovo Regional Court stayed the proceedings on the grounds that certain documents, such as confirmation of the US applicants ’ registration in the State databank and the girls ’ entry permits for the United States, were not enclosed. It instructed the US applicants to submit the documents requested by 27 November 2012. 290. According to the US applicants, on 27 November 2012 they provided the documents in question. 291. On 4 December 2012 the Ivanovo Regional Court returned the adoption application without examination on the grounds that the US applicants had failed to provide the documents requested. 292. On 14 December 2012 the US applicants resubmitted the adoption application. 293. On 18 December 2012 the Ivanovo Regional Court stayed the proceedings on the grounds that some of the enclosed documents did not satisfy the procedural requirements. In particular, (i) although the US applicants had submitted a property certificate concerning a plot of land, it did not provide sufficient information about their dwelling; (ii) the attestation of the US applicants ’ suitability to become adoptive parents had been issued more than a year previously and was therefore outdated; and (iii) medical opinion concerning the US applicants ’ state of health did not satisfy the Ministry of Health requirements. The US applicants were instructed to rectify these shortcomings by 10 January 2013. 294. On 9 January 2013 the Ivanovo Regional Court rejected the application on the grounds that, pursuant to Law no. 272-FZ, the US applicants did not have a right to adopt A.M. and D.T. The US applicants appealed. 295. On 4 February 2013 the Ivanovo Regional Court upheld the ruling of 9 January 2013 on appeal. The US applicants lodged an appeal on points of law. 296. On 17 April 2013 the Presidium of the Ivanovo Regional Court rejected the appeal on points of law. 297. On 25 April 2013 the US applicants were informed that they had been removed from the State databank as prospective adoptive parents. 298. According to the Government, A.M. is still available for adoption, and the competent authorities provide prospective adoptive parents looking for a child with information about them. D.T. has been placed with a foster family. | These applications were brought by 45 US nationals: both on their own behalf, and on behalf of 27 Russian children. In late 2012, the US applicants had been in the final stages of procedures to adopt the children, many of whom required specialist medical care. However, after a Russian law had been passed which banned adoptions of Russians by US nationals5, all of these procedures were abruptly halted. The applicants claimed that, because the proceedings had been at a late stage, a bond had already formed between the adults and children. They complained that the ban had violated their right to family life, that it had been discriminatory, and that it had amounted to ill-treatment of the children (as it prevented them from receiving specialist medical care in the US). |
175 | Right to life (Article 2 of the European Convention on Human Rights) | I. THE CIRCUMSTANCES OF THE CASE 4. The applicants were born in 1956, 1963, 1985, 1995 and 2001 respectively and live in Čakovec. The first and second applicants are husband and wife and the third to fifth applicants are their children. 5. During 2004 M.T., the first and second applicants ’ daughter and the third to fifth applicants ’ sister, entered into a relationship with a certain M.M. They started living together with the applicants in their home. On 1 March 2005 they had a child, V.T. Soon afterwards M.M. had a series of disputes with the members of the household and often expressed verbal threats against M.T., which resulted in him moving out of the house in July 2005. On 4 January 2006 the Čakovec Social Welfare Centre ( Centar za socijalnu skrb Čakovec – hereinafter “the Welfare Centre”) filed a report with the Međimurje Police Department ( Policijska uprava međimurska ) stating, inter alia, that on 2 January 2006 M.M. had come to the Centre and claimed that he had a bomb and would “throw it at his former wife [meaning M.T.] and child”. 6. On 5 January 2006 M.T. lodged a criminal complaint with the Čakovec State Attorney ’ s Office against M.M. She alleged that on a number of occasions since July 2005 M.M. had come to her parents ’ house where she also lived with her daughter and had threatened to kill her and their daughter with a bomb unless she agreed to come back to him. He had also often made telephone calls and sent SMS messages to her by mobile phone repeating the same threats. 7. On 3 February 2006 M.M. was detained following the instigation of the criminal proceedings against him in the Čakovec Municipal Court ( Općinski sud u Čakovcu ) on 27 January 2006. A psychiatric opinion obtained during the proceedings stated that on 2 January 2006 M.M. had claimed before the employees of the Welfare Centre that he had a bomb and that his threats had been meant seriously. He had repeated the same claim on 19 January 2006 before police officers from the Međimurje Police Department. The relevant parts of the conclusions of the report read as follows: “1. Defendant M.M. is a person suffering from a profound personality disorder etiologically linked to innate malfunctioning of the brain and the highly unfavourable pedagogical circumstances of his childhood. Dg: mixed personality disorder ... 2. In the context of the said personality disorder the defendant ’ s reaction to a problematic situation was an inadequate and pathological defence mechanism with inflated ideas and related activities. These inflated ideas do not amount to a mental illness. 3. I have not found elements of either permanent or temporary innate mental illness, diminished intellectual capacity or epilepsy which might be linked to the criminal offences with which the defendant is charged. 4. He is not addicted to alcohol, drugs or other substances ... 5. In view of what has been said under 1, 2 and 3 and in view of all the other information collected so far in connection with the criminal offences, I consider that his ability to wilfully control and understand the meaning and consequences of his act tempore criminis was diminished, but that [he was not] completely unaccountable. 6. There is a strong likelihood that he will repeat the same or similar criminal offences. In order to prevent this, I recommend that the court, apart from the other measures, order compulsory psychiatric treatment with a predominantly psychotherapeutic approach with the aim of developing an ability to resolve difficult situations in life in a more constructive manner.” 8. On 15 March 2006 the Municipal Court found M.M. guilty of threatening M.T. on several occasions during the period between July and 30 December 2005 both in front of her family house and at the parking lot near the city graveyard when M.T. had been alone. He had shouted threats that he would kill her, himself and their child with a bomb; at the Welfare Centre on 2 January 2006 he had said that his threats had been meant seriously, that he actually had a bomb and that he would kill himself and the child with the bomb on the child ’ s first birthday on 1 March 2006. He was sentenced to five months ’ imprisonment and a security measure of compulsory psychiatric treatment was ordered during his imprisonment and afterwards as necessary. In ordering the defendant ’ s compulsory psychiatric treatment the court relied entirely on the findings of the psychiatric report. The relevant part of the judgment read as follows: “ ... throughout the whole period in question the defendant had been telling the victim that he would throw a bomb at himself and their child as well as her [the victim] if she happened to be around. These events came to a head on 30 December. The defendant did not refrain from mentioning a bomb either in front of the Welfare Centre ’ s employees or a policeman. Furthermore, he said in front of the policemen that he would blow himself and the child up with a bomb on the child ’ s first birthday. Therefore, there is no doubt that both the victim and the witnesses understood these threats as being meant seriously ... Thus, the victim ’ s fears for her own as well as her child ’ s safety were justified ... ... ... all conditions for ordering a security measure [of compulsory psychiatric treatment] have been fulfilled since the defendant committed a crime while his capacity for understanding was diminished and it is likely that he will repeat the same or similar offence. It is necessary to order compulsory psychiatric treatment during his prison term and after his release. The treatment shall take a predominantly psychotherapeutic approach, as recommended by the expert, in order to develop [the defendant ’ s] ability to address difficult situations in life in a more constructive manner.” 9. On 28 April 2006 the Čakovec County Court ( Županijski sud u Čakovcu ) reduced the security measure to the duration of M.M. ’ s prison sentence and upheld the remaining part of the judgment. The relevant part of the judgment reads as follows: “ ... there is no doubt that frequent murder threats by ... a bomb should by any objective test have been understood as meant seriously and that [such threats] would cause a real sense of disquiet, fear and anxiety in an average person, in particular in a situation where the victim has known the perpetrator as an aggressive person out of control, as is the case with the victim in the present case. There is also no doubt that ... the defendant ’ s threats extended throughout a period of half a year during which the victim feared, owing to continued threats, not only for her own safety but also for the safety and wellbeing of her child which was not even a year old at the time. The victim was thus undoubtedly put in a difficult and unenviable position where she feared daily for her and her daughter ’ s life, which was confirmed not only in her testimony but also the fact that she sought assistance from the competent authorities [such as] the police, the Social Welfare Centre and the State Attorney. ... While examining ... the impugned judgment under Article 379 paragraph 1(2) of the Code of Criminal Procedure this appellate court has established that the first-instance court violated the statutory provisions to the detriment of the defendant when it ordered that a security measure of compulsory psychiatric treatment should continue after the defendant ’ s release [from prison], which is contrary to Article 75 of the Criminal Code according to which compulsory psychiatric treatment may last as long as the reasons for its application exist but no longer than the prison term. ... ... this court does not agree with the defendant ’ s argument that in his case the purpose of punishment would be achieved by a suspended sentence, especially in view of the fact that the defendant ... did not show any self-criticism as regards his acts or any feelings of remorse for what he had said ... ” 10. M.M. served his sentence in Varaždin Prison and was released on 3 July 2006. On 15 August 2006 he shot M.T., her daughter V.T. and himself. Before the shooting he was spotted by M.T. ’ s neighbour carrying an automatic gun and leaving his bicycle in the adjacent woods. The neighbour immediately called the police. The police arrived at the scene twenty minutes later, just after the tragic event. 11. On 15 August 2006 the police interviewed M.T. ’ s neighbour I.S. who had seen M.M. approaching M.T. ’ s house immediately before the critical event. At the request of the police, on 17 August 2006 an investigating judge of the Varaždin County Court issued a search warrant of a flat and a vehicle belonging to a certain M.G. who was suspected of having procured weapons for M.M. The warrant was executed the same day, but no connection was established between M.G. and the weapons used by M.M.. The investigating judge has not taken any further steps in that case. 12. On 18 August 2006 the police submitted a report to the Čakovec County State Attorney ’ s Office detailing the circumstances of the tragic event. 13. On 28 November 2006 the State Attorney ’ s Office dismissed a criminal complaint against M.M. for murdering M.T. and V.T. on the ground that he was dead. It is unclear who lodged that complaint, but a copy of this decision was sent to the applicants. In a letter of the same day the State Attorney ’ s Office asked the Međimurje Police Department to collect all information concerning psychiatric treatment of M.M. in Varaždin Prison. The relevant part of a report drawn up on 13 December 2006 by the Varaždin prison authorities reads as follows: “M.M. had been kept in detention on remand in Varaždin Prison from 3 February to 22 May 2006 when he was sent to serve his prison term ... which expired on 3 July 2006. A psychiatric examination of M.M. carried out during his stay in detention showed that he suffered from a mixed personality disorder which derived from innate malfunctioning of the brain and the unfavourable pedagogical circumstances of his childhood. In the same opinion the expert psychiatrist recommended that compulsory psychiatric treatment be ordered with a predominantly psychotherapeutic approach with the aim [that M.M.] develop an ability to resolve difficult situations in life in a more constructive manner. While M.M. served his prison term, intensive treatment consisting in frequent individual conversational sessions was envisaged, in accordance with the individual programme of serving a prison term. He rarely came for the sessions of his own accord and was therefore, in [order to satisfy] the need for treatment, requested to do so by the staff. ... While in prison M.M. saw the prison doctor on five occasions, sometimes of his own accord, sometimes at the doctor ’ s call. He did not insist on his psychiatric therapy and therefore his treatment was based, as recommended by the expert, on intensive psychotherapeutic treatment by the staff, the prison governor and the others who talked to him. He was a highly introverted person, so his true personality could not be detected in detention or prison conditions.” 14. On 11 December 2006 the Međimurje Police Department interviewed the Varaždin prison governor, P.L. The relevant part of a report on the interview drawn up on 2 December 2006 reads as follows: “The above-mentioned is the governor of Varaždin Prison and he states that the late M.M. served his prison term in Varaždin Prison from 3 February to 3 July 2006 ... While in prison M.M. underwent psychiatric treatment pursuant to the expert opinion and recommendation. The treatment was based on intensive psychotherapeutic treatment of M.M. consisting of conversational sessions between M.M. and the prison staff, himself [meaning the governor] and the prison doctor. During the treatment M.M. neither received nor asked for any pharmacotherapy. It was also established that M.M. was a very introverted person who did not wish to cooperate in the treatment. During his stay in the prison M.M. saw the prison doctor on five occasions in connection with some other problems, that is to say, illnesses. He further maintains that there are no internal regulations on the implementation of security measures and that all treatment is carried out in accordance with the Enforcement of Prison Sentences Act.” 15. According to the Government, since no oversights on the part of the persons in charge of the execution of the M.M. ’ s prison term and security measure had been established, the investigation was concluded, although no formal decision to that effect has been adopted. 16. M.M. ’ s medical record from prison, submitted by the Government, does not indicate any psychiatric or psychotherapeutic treatment. 17. On 6 November 2006 the applicants submitted a proposal to the State Attorney for a settlement of their claim for non-pecuniary damages related to the deaths of M.T. and V.T. They alleged failures by the competent authorities to take adequate steps to protect the lives of M.T. and V.T. and inadequacy of the investigation into the circumstances of their deaths. They sought 1,105,000 Croatian kunas (HRK) in compensation and HRK 13,481 for costs. They received no reply. Under section 186(a) of the Civil Procedure Act, where such a request has been refused or no decision has been taken within three months of its submission the person concerned may file an action with the competent court. The applicants have not brought a civil action. | The applicants were the relatives of a baby and his mother whose husband/father had killed both them and himself one month after being released from prison, where he had been held for making those same death threats. He was originally ordered to undergo compulsory psychiatric treatment while in prison and after his release, as necessary, but the appeal court ordered that his treatment be stopped on his release. The applicants complained, in particular that the Croatian State had failed to take adequate measures to protect the child and his mother and had not conducted an effective investigation into the possible responsibility of the State for their deaths. |
740 | Noise pollution | 2. The first applicant was born in 1984. The second applicant was born in 1958. The third applicant was born in 1991 and the fourth applicant was born in 1959. The applicants are relatives and they all live in Smolice. They were represented by Mr Ł. Brydak, a lawyer practising in Warsaw. 3. The Government were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. 4. The facts of the case, as established by the domestic courts in the course of the civil proceedings described below and as submitted by the parties, may be summarised as follows. Background 5. Since an unspecified date the applicant family has lived in a detached house situated in Smolice at no. 11 Cegielniana Street, several metres from national road no. 14 (“the N14 road”). 6. The N14 road runs parallel to the applicants’ street through the middle of the neighbouring town of Stryków, which has approximately 3,500 inhabitants. Where the N14 road runs through Stryków, it is known as Warszawska Street. 7. In the southern part of Stryków, approximately 1 km from the applicants’ house, the A2 motorway crosses the N14 road. The intersection of the two roads is known as “the Stryków II junction”. 8. The A2 motorway forms part of the Second European Transport Corridor, linking Hanover, Berlin, Frankfurt, Poznan, Warsaw, Brest, Minsk and Moscow. It runs through all of central Poland and is one of the most important roads in the country. 9. The Polish part of the motorway, which bears the name “Liberty Motorway” ( Autostrada Wolności ), was built in sections over several years, with construction starting in 2001. It currently comprises eleven sections totalling 475 km. Tolls are payable on some sections of the motorway, and other sections are toll-free. 10. One of the motorway’s sections runs between Konin and Stryków and is 103 km long. It currently has three lanes which are operational. It was free to use this section of the A2 motorway from 2006 until the middle of 2011. Currently, the toll costs approximately 2.50 euros (EUR). 11. When it was built in 2006, the section of the motorway in question ended at the Stryków II junction, and all the motorway traffic was temporarily diverted directly onto the N14 road. 12. Stryków is under the administration of the local authorities of Łódzkie Province ( Województwo łódzkie ). 13. The 1994 local master plan ( plan zagospodarowania przestrzennego ) for Stryków, and the later versions of that plan, feature a motorway project with a ring road around the city. Proceedings concerning the construction and operation of the A2 motorway section between Konin and Stryków 14. The first phase of the two-tier procedure concerning the construction of the A2 motorway started on 25 August 1995 when the Head of the Central Planning Office ( Centralny Urząd Planowania ) issued a decision indicating where the motorway would be located. 15. On 13 February 1996 the Minister for the Environment decided on the course of the relevant section of the motorway, between the towns of Września (near Konin) and Stryków. 16. The second phase of the procedure, namely administrative proceedings concerning the location of the relevant section of the A2 motorway, were initiated on 18 April 1996. 17. On 26 April 1996 the mayor of Stryków ( burmistrz miasta-gminy ) raised a formal objection ( sprzeciw ) to a plan to locate the temporary end point of the A2 motorway (the future Stryków II junction) on the territory of the Stryków Municipality ( gmina ). 18. Among other things, the mayor suggested two alternative locations for the section’s end point, namely Łowicz, belonging to Łódzkie Province ( Województwo Łódzkie ), and Żyrardów, belonging to Masovian Province ( Województwo Mazowieckie ). The mayor argued that the traffic on national road no. 71 and regional road no. 712, both passing through Stryków, was already very heavy. Redirecting the motorway traffic through the town, without putting in place any alternative road connection, was likely to obstruct the local road traffic and create environmental risks. 19. On 23 July 1996 the Governor of Łódzkie Province ( wojewoda ) decided that the relevant section of the A2 motorway would run through the southern part of the town of Stryków. 20. To that end, the governor set out various technical specifications relating to the A2 motorway project. 21. In particular, the following actions had to be undertaken during the planning phase. The so-called “zone of nuisance” ( strefa uciążliwości ) was to be determined in the light of the results of an enhanced and extensive environmental impact assessment ( nasilona i pogłębiona ocena oddziaływania na środowisko ). Extensive environmental studies were to be carried out in relation to the problematic areas. The construction project was to reflect the results of those studies. Residential areas along the motorway were to be protected from noise by means of anti-noise screens and other measures. Areas along the motorway were to be forested. At each phase of the project, the owners of properties affected by the motorway were to be protected from the burden of nuisance (noise, air and water pollution) if the latter was of an above-average degree ( ponad przeciętną miarę ). 22. The governor instructed the investor that the relevant application for a construction permit would have to be accompanied by an assessment of the results of local noise monitoring, as well as an extended environmental impact assessment ( pogłębiona ocena oddziaływania na środowisko ). 23. The governor considered himself precluded from examining the objection raised by the mayor of Stryków because, as he explained, in the light of the relevant provisions of the Law on Paid Motorways, a decision on the location of a motorway could not go beyond the scope of the decision issued by the Head of the Central Planning Office on 25 August 1995, which only concerned the section of the motorway within the limits of Łódzkie Province. The governor found that the development of the motorway did have to be organised section by section. Waiting for the section after Stryków to be planned before approving the location of the section up to Stryków would make the whole project unprofitable for the investor. 24. The above-mentioned decision of 23 July 1996 did not address the question of rerouting the motorway traffic via the N14 road. 25. It appears that in 2002 a number of environmental impact assessment reports were produced. These documents have not been submitted to the Court. 26. In the course of a public consultation on the motorway project, one association for the protection of the environment made a series of submissions and was ultimately admitted as a party to the administrative proceedings in question. In particular, the association asked that studies be carried out to measure the impact of the motorway on the health of the population concerned. To that end, they asked that the health of residents living within 1 km of the motorway be monitored. The association also asked that individual vulnerable residents be protected from the impact of the future motorway traffic. 27. On 12 February 2003, considering the results of an assessment of the auditory effects of the motorway on the health of the population concerned, the Governor of Łódzkie Province issued an ordinance. The governor thus declared the part of the section of the motorway which was located directly before Stryków a reduced traffic zone ( obszar ograniczonego użytkowania ). 28. On 26 March 2003 the Governor of Łódzkie Province approved the investor’s construction project for the relevant section of the A2 motorway and issued the General Directorate of National Roads and Motorways ( Generalna Dyrekcja Dróg Krajowych i Autostrad, hereinafter “the roads and motorways authority”) with a building permit. As to the environmental association’s request to have the health of the population concerned monitored, the governor observed that no legal provisions existed to regulate such action. Overall, the governor considered that the project offered solutions ensuring the protection of the environment. 29. The above-mentioned decision did not address the question of rerouting the motorway traffic via the N14 road. 30. On 14 July 2003 the Chief Inspector of Construction Supervision ( Główny Inspektor Nadzoru Budowlanego ) rejected as out of time an appeal lodged by the environmental association against the decision to issue the construction permit. 31. On 25 July 2006 the Inspector of Construction Supervision for Łódzkie Province permitted the roads and motorways authority to use that section of the motorway. That decision did not address the question of rerouting the motorway traffic via the N14 road. Operation of the section of the A2 motorway between Konin and StrykówTimeline of events and monitoring of the N14 road Timeline of events and monitoring of the N14 road Timeline of events and monitoring of the N14 road 32. On 26 July 2006 the roads and motorways authority opened the new, two-lane, section of the A2 motorway running between the cities of Konin and Stryków (the Stryków II junction). 33. The motorway was then directly connected to the N14 road leading North, to Warsaw and Łódź. 34. Following the opening of the section of the A2 motorway in question, traffic in the centre of Stryków, especially that made up of trucks, seriously increased. 35. An impact assessment carried out in September 2006 by the Warsaw Institute for Environmental Protection ( Instytut Ochrony Środowiska ) revealed that noise levels on the N14 road significantly exceeded the statutory norms. 36. Protests erupted and the residents of Stryków and the surrounding area called on the authorities to urgently limit the traffic on the N14 road, especially at night. 37. Between 2006 and 2017 the applicants did not lodge any complaints about the noise, vibrations or air pollution with the local authorities responsible for environmental protection. They also did not ask for any specific pollution or noise assessment to be carried out in respect of their property. 38. As a result of the protests and complaints lodged by other residents of Stryków, on 10 August 2006 the roads and motorways authority presented to the city council ( Rada Miasta ) a plan for the fast-track construction of a ring road to link the A2 motorway with the N14 road outside the city limits. In the alternative, a 1.7-km extension of the A2 motorway beyond the southern city limits was proposed, in order to connect it with the nearby A1 motorway. 39. In September 2006 noise monitoring was carried out by privately commissioned experts of the Institute for Environmental Protection ( Instytut Ochrony Środowiska ). Their report was drawn up on 15 January 2007. 40. According to that report, the average number of vehicles passing through Stryków via the N14 road was 15,381 during the day and 2,818 at night, as measured in September 2006. The noise levels measured in Stryków at the same time significantly exceeded the national norms which at the relevant time were: 60 dB during the day and 50 dB at night (see paragraph 108 below). In particular, the noise levels in residential areas exceeded the norms by between 9.9 dB (LAeq – the equivalent continuous sound level) and 12.7 dB (LAeq ) during the day, and by between 18.5 dB (LAeq ) and 21.3 dB (LAeq ) at night. 41. The experts observed that the main cause of the noise was truck traffic, which constituted between 40 and 47% of all the traffic in Stryków. They considered that such a large number of trucks was highly unusual for traffic within a city. 42. The experts concluded that the noise should not be tolerated in the long term, even assuming that the situation was temporary. They recommended that stringent measures be taken in order to move a large portion of the traffic beyond the city limits. 43. Also in 2006, air and water pollution monitoring was carried out by the Chief Inspectorate for Environmental Protection ( Główny Inspektorat Ochrony Środowiska ). This revealed, inter alia, that the annual average concentration of sulphur dioxide and nitrogen dioxide (pollutants which contribute to acid deposition and eutrophication respectively, which in turn can lead to changes in soil and water quality) on Warszawska Street was 8.9 μg/m 3 and 33.1 μg/m 3 (micrograms per cubic metre) respectively. On a scale of I-V, the river waters in that area were rated IV, “unsatisfactory”. The water in the Stryków well was rated II, “good quality”. 44. In October 2006 the surface of Warszawska Street in Stryków was renovated. 45. In December 2006 the roads and motorways authority reorganised the A2 motorway in order to alleviate the nuisance posed by the increased traffic in Stryków. In particular, alternative roads to Warsaw were indicated to motorway users by means of traffic signs. 46. According to one of the experts appointed by the Warsaw Regional Court ( Sąd Okręgowy ), the above-described measure brought the traffic levels on the N14 road back down to those from before 2006, but did not eliminate the noise emitted by the trucks, especially at night (see also paragraph 78 below). Measurements taken by the expert in September 2008 revealed that the N14 road was still affected by heavy and fluid traffic which included a significant number of trucks. In the Government’s submission, that could be partly caused by the development of industrial zones and service areas in Stryków. 47. The court-appointed expert further observed that on 31 August 2006 the project concerning the ad hoc traffic restrictions and reorganisation (see paragraph 45 above) had been approved (by the authority in charge of road and bridge management, Biuro Zarzadzania Drogami i Mostami ), despite its various shortcomings. In particular, contrary to the applicable law, the project had not contained certain maps, a technical description (including the specifications of the road and the traffic), a timeline for its implementation, or the name of the project designer. On 15 September 2006 the project had been registered with the Office of Motorway Construction ( Biuro Zarządzania Budową Autostrady ) so that it could be implemented, with the implementation date set for 1 October 2006. In view of the great number of custom-made traffic signs which had had to be prepared, the reorganisation of traffic had taken place in December 2006. 48. The roads and motorways authority decided not to opt for anti-noise screens along the N14 road, because the space along Warszawska Street was insufficient and access to multiple individual plots along the street could not be blocked or visually obstructed. 49. The operation of the motorway resulted in the creation of various logistics centres and large warehouses in the Smolice and Stryków areas. A general increase in traffic was thus recorded on the streets of these towns. 50. According to a report drawn up on 30 November 2010 by another expert appointed by the Warsaw Regional Court, the roads and motorways authority could not have predicted what level of traffic in Stryków would result from the operation of that section of the A2 motorway. Truck traffic was generated by not only the operation of the motorway, but also the operation of other national and regional roads in the vicinity of Stryków. Comparative environmental impact assessment drawn up for the A2 motorway in the area of the Stryków II junction 51. In January 2008 a post-construction environmental impact assessment report was issued in respect of the part of the A2 motorway between Dąbie and Stryków (57 km before Stryków). 52. The following relevant information pertaining to the area of the Stryków II junction featured in that document. 53. The measurements carried out in various directions on the motorway revealed the following traffic statistics. 54. On 21 August 2007 the number of light vehicles per hour ranged from 282 to 475 between 6 a.m. and 10 p.m., and from 114 to 206 between 10 p.m. and 6 a.m. The number of heavy vehicles (such as trucks or buses) per hour ranged from 191 to 296 between 6 a.m. and 10 p.m., and from 162 to 234 between 10 p.m. and 6 a.m. The percentage of heavy vehicles in the traffic peaked at 47.5% between 6 a.m. and 10 p.m., and at 64.4% between 10 p.m. and 6 a.m. The total number of vehicles counted in the twenty-four hours was 12,499. 55. On 23 August 2007 the number of light vehicles per hour ranged from 220 to 416 between 6 a.m. and 10 p.m., and from 94 to 190 from 10 p.m. to 6 a.m. The number of heavy vehicles (such as trucks or buses) per hour ranged from 195 to 302 between 6 a.m. and 10 p.m., and from 175 to 230 between 10 p.m. and 6 a.m. The percentage of heavy vehicles in the traffic peaked at 48.8% between 6 a.m. and 10 p.m., and 66.9% between 10 p.m. and 6 a.m. The total number of vehicles counted in the twenty-four hours was 11,587. 56. Overall, the average number of vehicles in the area of the Stryków II junction was 11,244 between 6 a.m. and 10 p.m., and 3,006 between 10 p.m. and 6 a.m., with a total number of 14,250 vehicles every twenty ‑ four hours. Nearly 52% of that traffic consisted of heavy vehicles. 57. The measurements carried out specifically in respect of the junction between the A2 motorway and the N14 road revealed the following numbers of vehicles: 14,552 light vehicles every twenty-four hours; 5,934 heavy vehicles every twenty-four hours; 12,718 light vehicles between 6 a.m. and 10 p.m.; 4,320 heavy vehicles between 6 a.m. and 10 p.m.; a total of 17,038 vehicles between 6 a.m. and 10 p.m.; 1,834 light vehicles between 10 p.m. and 6 a.m.; 1,614 heavy vehicles between 10 p.m. and 6 a.m.; and a total of 3,448 vehicles between 10 p.m. and 6 a.m. 58. The average speed was 105 km/h for light vehicles and 75 km/h for heavy vehicles. 59. The measurements of noise levels which were carried out mainly on sunny days in August 2007, at a distance of 25 to 800 metres from the edge of the road and at a height of 4 metres, revealed that the noise ranged from 49.3 to 61.8 dB during the day, and from 47.7 to 59.6 dB at night. The statutory noise levels were exceeded during the day at three out of eighteen measuring stations (by up to 1.8 dB) and at night at fifteen out of eighteen stations (by up to 9.6 dB). During the monitoring, it was impossible to separate the noise coming from the A2 motorway from that produced by other sources, such as local activities or local roads. 60. Average annual levels of air pollutants for 2006 were as follows: 16 ‑ 20 µg/m 3 of nitrogen dioxide (the statutory limit of 40 µg/m 3 was not exceeded); 9-15 µg/m 3 of sulphur dioxide (the statutory limit of 20 µg/m 3 was not exceeded); 16-18 µg/m 3 of PM 10 (the statutory limit of 40 µg/m 3 was not exceeded); 1.5-2.5 µg/m 3 of benzo(a)pyrene (the statutory limit of 5 µg/m 3 was not exceeded); and 0.05 µg/m 3 of lead (the statutory limit of 0.5 µg/m 3 was not exceeded). 61. The 2008 environmental impact assessment report also stated that thirty-four anti-noise screens, the height of which varied from 2.5 to 4.5 metres, and five two-metre-high anti-noise ramparts had been put in place along the section of the A2 motorway between Konin and Stryków. 62. The section of the motorway in question was equipped with watertight ditches and devices which partly cleaned road sludge before it was drained away. 63. To reduce the nitrogen dioxide pollution which was expected to be emitted by the motorway traffic, trees and bushes had been planted along the motorway. The report’s authors concluded that because that greenery had been planted only recently, it was not yet fulfilling its filtering function. Development of the A2 motorway’s extension between Stryków II and Stryków I junctions. 64. As the section of the motorway between Konin and the Stryków II junction was being developed, the authorities were developing the project concerning the 1.7-km extension of the motorway through the southern outskirts of Stryków, between the Stryków II and Stryków I junctions. 65. The environmental impact assessment for that part of the A2 motorway was completed in September 2003. Following the issuance of a number of permits, works began in late 2006. They were to be completed in the autumn of 2008. The works then slowed down because of either a lack of government funding or, in the applicants’ submission, the roads and motorways authority’s persistent failure to make use of the State and European Union funds allocated to the project. 66. On 22 December 2008 the above-mentioned extension to the A2 motorway was opened for use. 67. The extension proved to effectively reduce the traffic made up of heavy vehicles on the N14 road, especially in the area where the applicants’ house was located. The applicants confirmed that the traffic had dropped to an acceptable level. Health impact of the operation of the section of the A2 motorway 68. A privately commissioned report drawn up by psychologists on 15 September 2008 stated that the life of people living on Warszawska Street and on nearby streets had been very badly affected by the increased traffic on the N14 road. 69. Firstly, Warszawska Street was very difficult to cross. 70. Secondly, vehicles emitted a great deal of noise and exhaust fumes and caused vibrations and other disturbance. That nuisance persisted practically twenty-four hours a day. As a result, the residents could not open windows, and damage was caused to their houses. The residents lived with serious stress caused by the audible noise and (even more harmful) infrasound coming from trucks and other vehicles with large engines. This was compounded by the high concentration of exhaust fumes and vibrations. 71. The experts considered that severe and persistent noise could constitute a biological stress factor causing physiological changes in humans. Such biological stress would initially cause an alert reaction of the human body and, in the event of a strong stimulus (noise over 60 dB), could lead to death. Longer exposure to the stimulus caused insomnia, irreversible exhaustion, and also led to death. It was widely accepted among scientists that, because of the particularly strong neural pathways between the hearing apparatus and the brain, persistent audible noise caused not only hearing loss but also mental discomfort, and nervous breakdowns and disorders in internal organs and brain functions, such as cardiological ailments, strokes, breathlessness, dizziness, high blood pressure and the risk of ulcers. Exposing children to noise could cause attention deficit disorders and hyperactivity, learning difficulties, aggression, withdrawal, apathy, insomnia, bed-wetting and night-time fears. Children living in a noisy environment were also very susceptible to drops in their overall immunity, allergies, arthrosis, skin disease, ulcers, nausea, panic attacks, constipation or diarrhoea. The symptoms among adults included problems with blood circulation and digestion, back pain, asthma, allergies, hair loss, depression, tobacco and alcohol addiction, aggression, depression and infertility. 72. Ultrasound, which mostly affected women and young people, caused, among other things, earache, hearing and speech impairments, stomach and heart pain, and breathing and hormone production disorders. 73. Vibrations could lead to the development of a so-called “vibrations syndrome”, which seriously affected various bodily functions. 74. The experts concluded that life for the residents of Warszawska Street in Stryków was dreadful, and they risked severe psychophysiological ailments, illnesses and perhaps even a decrease in their life expectancy. All residents complained of interrupted sleep because of unbearable noise, infrasound and vibrations. Some of them had developed autoimmune diseases linked to stress. Civil proceedings against the national roads and motorways authority 75. On 1 April 2009 the applicants brought a civil action against the State Treasury and the national roads and motorways authority, seeking compensation for damage to their physical and mental health and the infringement of their right to a peaceful and undisturbed private and family life, home and feeling of security (case no. XXV C 408/09). They sought 15,000 Polish zlotys (PLN – approximately EUR 3,750) per person in compensation. 76. On 7 April 2009 the Warsaw Regional Court joined the applicants’ case to an action which had been lodged one year earlier by a certain B.W., whose house was located in the vicinity of the applicants’ plot, along the N14 road. That claimant sought compensation in the amount of PLN 60,000 (approximately EUR 15,000). B.W also applied for the respondent to be ordered to reorganise the traffic by barring 25-tonne vehicles from entering the town of Stryków He withdrew that claim on 20 February 2009. 77. On 22 November 2011 the Warsaw Regional Court dismissed the claimants’ action for compensation. In view of the unprecedented nature of the action, the applicants were not ordered to bear any costs of the proceedings. 78. The regional court based its rulings on the following pieces of evidence: various reports from experts in traffic engineering and acoustics, including the report of 30 November 2010 (described in paragraphs 79-87 below) and submissions made by the claimants and by specialists employed at the relevant time by the roads and motorways authority. The court rejected the report prepared by the Chief Inspectorate for Environmental Protection based on the results of the monitoring of air pollution in the area (see paragraph 43 above). The court considered that, even though it was common knowledge that increased traffic led to increased emissions of exhaust fumes, the exact cause of the air pollution in the area in question was unknown. The court also considered it unnecessary to examine the results of the noise monitoring report commissioned by the claimants (see paragraph 39 above), or to obtain expert evidence on the effects of the noise on the applicants’ mental health. 79. The report drawn up on 30 November 2010 by the court-appointed expert in road traffic engineering was produced to answer the question of whether the roads and motorways authority had taken adequate and sufficient measures in the way that they had organised traffic in Stryków. The report contained the following observations and conclusions, in so far as relevant. 80. The A2 motorway and the N14 road were, at the material time, a preferred route for drivers. That section of the roads was toll-free and the technical specifications of these roads were better than those on the alternative roads, the N2 and N72. 81. Intensified traffic on the N14 road was likely to persist until: (i) the opening of the next part of the road, between the Stryków II and Stryków I junctions (the part which was to link the A2 motorway with the A1 motorway passing from the South to the North, just east of Stryków); (ii) the putting in place of ad hoc traffic restrictions; or (iii) the charging of tolls for use of the section of the A2 motorway between Konin and Stryków. 82. The traffic on the N14 road, after the A2 motorway had been connected to it, was estimated to have increased by 35% in comparison with 2005. Truck traffic on the N14 road had peaked in 2006 at 23% of the total traffic that year. That represented a 13% increase compared with previous years. 83. In line with the local master plan, the expansion of buildings with a commercial function (namely warehouses) had been noted in and around Stryków. That had, in all likelihood, generated the increased traffic made up of trucks and other delivery vehicles on the N14 road. 84. The extension to the motorway that had opened on 22 December 2008 was a temporary construction which did not meet the technical specifications of a motorway. It was also not equivalent to the ring road which had initially been planned to take the traffic out of the centre of Stryków. The court-appointed expert concluded that there was a high probability that, despite the operation of that extension, Warszawska Street had remained the main transit route for traffic diverging from the A2 motorway, including trucks. That road was the shortest connection from the South to the North, and also the only road leading to the warehouses and large commercial buildings in Stryków. Moreover, the 2008 extension had had a tendency to become congested. Overall, however, the operation of that temporary extension had contributed to the decrease in traffic on Warszawska Street after December 2008. 85. Because of intensified traffic between 2006 and December 2008, Stryków residents had been likely to experience difficulties in crossing Warszawska Street on foot and driving onto that street from their individual plots. When traffic on that road congested, the local population had been exposed to high levels of noise and emissions from the exhaust fumes of vehicles immobilised in traffic jams. Local traffic had been greatly disturbed on such occasions, and aggression among road users had frequently been recorded. 86. The expert’s overall conclusion was as follows. The intensity of the traffic which had driven down Warszawska Street in Stryków after 26 July 2006 could not have been fully predicted prior to the opening of the section of the A2 motorway from Konin. With the exception of the shortcomings in the 2006 project concerning ad hoc traffic restrictions (see paragraph 44 above), the roads and motorways authority had been diligent in responding to the problem of the increase in traffic. In particular, the authority had engaged in (i) regular traffic monitoring; (ii) the ad hoc reorganisation of traffic in December 2006, with the idea for that measure being presented two weeks after the section of the motorway had begun to operate; and (iii) the planning and construction of the motorway’s extension through the Stryków I junction in December 2008. 87. The shortage of funds had made it impossible for the roads and motorways authority to construct a ring road around Stryków, as featured in the local master plan. In the light of that fact, the expert concluded that extending the motorway through the Stryków I junction offered an effective solution to the problem in the shortest possible time. 88. The regional court considered that the applicants’ right to health and the peaceful enjoyment of their home had been infringed because the noise in their places of residence caused by traffic had gone above the statutory norms. The court held, however, that the authorities had been quick to acknowledge the problem brought to their attention by the area’s residents and to implement an ad hoc measure whereby a portion of the traffic had been diverted to the capital via other roads. The authorities had also been swift to prepare and start implementing the plan for a long-term solution, namely the construction of a road extension outside of Stryków. As of December 2008 those measures had significantly reduced the traffic in the town. In view of these considerations, the court concluded that the authorities had acted in accordance with the law, namely section 20 of the Act of 21 March 1985 on public roads (see below), and thus could not be held liable for the infringement of the applicants’ personal rights. That element distinguished the case from the judgment of the Supreme Court ( Sąd Najwyższy ) of 23 February 2001 (II CKN 394/00, see below), in which it had been held that a local government’s tolerance of noise levels which exceeded the national norms was unlawful and could constitute an infringement of personal rights. Lastly, the court observed that compensation could not be awarded under Article 417 of the Civil Code, because the applicants had not proved that the harm resulting from the increased traffic between 2006 and December 2008 had made them unfit for work. 89. On 19 December 2012 the Warsaw Court of Appeal ( Sąd Apelacyjny ) dismissed an appeal by the applicants without charging them any court fees. 90. The appellate court employed the following reasoning. 91. The construction of the A2 motorway had pursued a legitimate general interest of society and had received media attention. Because of that, it was understandable that the motorway could not simply have been cut off before reaching Stryków, and that traffic had had to be directed through the town. The increased traffic had indeed caused nuisance to the residents of the area, but it had been the only available solution which had been technically sound. The N14 road had been in operation prior to the motorway, and “nobody had promised ... that [the motorway’s] construction [would] eliminate or reduce traffic on that road”. The fact that traffic, especially truck traffic, had increased had been as a result of matters beyond the power of the roads and motorways authority. In particular, that authority had not been responsible for drivers’ choices and could not predict which type of vehicles would use the N14 road instead of the alternative roads indicated from the city of Konin. It had also been impossible to predict the cars’ impact on air pollution, namely how many cars driving down Warszawska Street would not be equipped with a catalytic converter or would have non-functioning exhaust pipes, and what their speed would be and how often they would use their brakes. The roads and motorways authority had acted in compliance with the law, in that it had taken firstly ad hoc and then long-term measures to alleviate the nuisance caused by the traffic. 92. The appellate judgment was served on the applicants on 24 May 2013. No cassation appeal was available to the applicants because the value of their claim was lower than the statutory threshold of PLN 50,000 (see paragraph 105 below). It appears that a cassation appeal lodged by B.W., with whom they had been joint claimants, was rejected on procedural grounds. | This case concerned the rerouting of traffic by the applicants’ house during the construction of a motorway, and the applicants’ attempts to rectify the situation via the authorities. The traffic increase allegedly led to noise and other forms of pollution. |
633 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 8. The first applicant, Gérard Chauvy, was born in 1952 and lives in Villeurbanne. The second applicant, Francis Esmenard, was born in 1936 and lives in Paris. Both are French nationals. The third applicant, Editions Albin Michel, is a limited company formed under French law that has its registered office in Paris. 9. The first applicant, who is a journalist and writer, is the author of a book entitled Aubrac, Lyon 1943 which was published in 1997 by Editions Albin Michel ( the third applicant ), a company chaired by the second applicant. 10. In his book, the first applicant reconstructed the chronology of events involving the Resistance movements in Lyons in 1943 and took stock of the various archive materials that were available on that period. One of the principal mysteries surrounding this period is the Caluire meeting, an event of particular significance to the history of the French Resistance and a major episode of the Second World War. On 21 June 1943 Klaus Barbie, the regional head of the Gestapo, arrested the main Resistance leaders at a meeting in Caluire in the Lyons suburbs. Among those arrested were Jean Moulin, General de Gaulle ’ s representative in France and the leader of the internal Resistance, and Raymond Aubrac, a member of the Resistance movement who managed to escape in the autumn of 1943. The truth about how the Resistance leaders came to be arrested in Caluire has still not been established. A member of the Resistance, René Hardy, who is now dead, was accused of being the “traitor” and put on trial. However, he was not convicted after two separate trials. A majority of the court voted in favour of a conviction in one of the trials, but the rules of criminal procedure in force at the time required a majority of at least two votes for a guilty verdict to be returned. 11. The first applicant recounted this major event “using the Aubracs as a prism ”. He claimed that his book put to the test “the official truth as related at length in the media, notably by the Aubracs, and in a film that sings their praises ”. 12. The book sparked off a fierce public debate in France and the newspaper Libération organised a round - table conference at which historians were invited to discuss the issue in the presence of Mr and Mrs Aubrac. 13. An unabridged version of the written submissions – known as the “Barbie testament” – which were signed by Klaus Barbie and lodged by Mr Vergès, his lawyer, on 4 July 1990 with the judge investigating Barbie ’ s treatment of members of the Lyons Resistance was appended to the book. Many of the questions raised by the first applicant were based on a comparison of that document with the “official” version of history. In the conclusion to his book, he said that there was no evidence in the archives to substantiate the accusation of treachery made by Klaus Barbie against Raymond Aubrac, but that their examination had shown that “unreliable accounts [had] been given at times ”. He followed this up with two pages of questions that cast doubt on Raymond Aubrac ’ s innocence. 14. On 14 May 1997 Mr and Mrs Aubrac brought a private prosecution by direct summons in the Seventeenth Division of the Paris tribunal de grande instance. The summons contained fifty extracts from the book ( eighteen from Barbie ’ s written submissions and thirty-two from the first applicant ’ s own text ). The three applicants were summoned in their capacities as author, accomplice and a party liable for defamation under the civil law. Mr and Mrs Aubrac relied on section 31 of the Freedom of Press Act of 29 July 1881 and the Court of Cassation ’ s judgment of 4 October 1989 in Pierre de Bénouville. The relevant parts of the summons read as follows: “When ... Klaus Barbie was brought to France in 1983 he chose to defend himself by seeking to discredit those of his victims who had survived and were still able to make accusations against him by accusing them of treachery. He suggested that Raymond and Lucie Aubrac might be among their number. However, when Raymond Aubrac attended Barbie ’ s trial after being called as a witness by him, neither Barbie, nor his counsel Mr Vergès, asked him the slightest question, made the least remark or produced any document capable of supporting this vile accusation which remained extremely vague. At the same time, by a judgment of 30 April 1987 followed by a judgment of 10 February 1988 which has become final, Raymond Aubrac secured Mr Vergès ’ s conviction for defamation after Mr Vergès had chosen to relay and even to back up his client ’ s insinuations in a film by Mr Claude Bal. ... The [first applicant ’ s] book was published in March 1997 with the title ‘ Aubrac, Lyon 1943 ’. A banner wrapped around the cover proclaimed: ‘ A legend put to the test of history. ’ There cannot, therefore, be any doubt that this book is aimed almost exclusively at the Aubracs and purports to use rigorous historical method to destroy their so-called ‘ legend ’ as members of the Resistance .” 15. Mr and Mrs Aubrac then set out those of the applicants ’ allegations which they considered defamatory and their reasons for so considering them : “ A. The circumstances of Raymond Aubrac ’ s arrest in March 1943 The first falsehood of which the Aubracs are accused is that Raymond Aubrac was arrested on 13 March 1943 and not on 15 March; this enables Barbie to assert on the basis of this ‘ established fact ’ that the only way Raymond Aubrac, who had been arrested on 13 March, was able to attend the meeting on 15 March in the rue de l ’ hôtel de ville in Lyons was under the control of the French police. ... B. The allegations relating to Raymond Aubrac ’ s release in May 1943 An order for Raymond Aubrac ’ s release was made on 10 May 1943. However, in an autobiographical account published in 1984, his wife puts the date of his release at 14 May while Raymond Aubrac himself hesitates between 14 and 15 May in a deposition made on 21 August 1948 in connection with the second Hardy trial. ... For [ the first applicant ], there can be but one explanation for this discrepancy between the dates : Raymond Aubrac spent four days collaborating with the divine Barbie who compelled the French judicial authorities to release him. This was confirmed by Lucie Aubrac ’ s assertion that she had warned the public prosecutor not to oppose release, while [ the first applicant ] feigns surprise at the lack of concrete evidence of the application. ... C. Escape from L ’ Antiquaille Hospital ... this entire chapter returns to the alleged statement by Lucie Aubrac that she secured her husband Raymond ’ s inclusion not only among the four members of the Resistance who were arrested on 15 March 1943, but also among those who were freed on 24 May, with the sole aim of challenging the account of those who took part in that escape and branding them liars. ... ... [ The first applicant ’ s ] inability to rank the documents he cites in order of importance is a cause for consternation here. He considers it a near certainty that Aubrac ’ s wife ‘ hid ’ her husband following his release by Barbie, but chooses to ignore the fact that [the circumstances of] his release [were] immediately examined by Frenay, head of the ‘ Combat ’ movement and subsequently, as was to be expected, subjected to close scrutiny at General de Gaulle ’ s headquarters in London, and, in particular, the remark made by Frenay – despite its inclusion in the record of his interview in London on 30 June 1943 – that ‘ there is no doubt that Aubrac is a fellow who is beyond all suspicion ’. ... D. The defamatory allegations about Caluire ... Although the debate still rages over the extent to which René Hardy was a willing collaborator and the unnecessary risks taken by the leaders of the ‘ Combat ’ movement in sending Hardy to Caluire to defend the prerogatives of their leader, prior to Barbie in 1989 no one had ever suggested that Raymond and Lucie Aubrac had played the slightest role in Jean Moulin ’ s arrest on 21 June, or his identification by René Aubry on 25 June after four days of torture, it again being stressed that Hardy did not know Jean Moulin. ... [ The first applicant ] had no hesitation in asserting (page 130) : ‘ It is certain that Raymond Aubrac appears no longer to recollect the meeting with Lassagne and Aubry at Lonjaret ’ s home on 19 June 1943, although in 1948 he fully admitted that such a meeting had taken place. ’ In so doing, [ the first applicant ] lends credence to the notion that on 19 June 1943 Raymond Aubrac knew all about the proposed meeting in Caluire ... E. The deliberate confusion between Hardy and Aubrac In two transitional chapters (Chapters XI and XII), [ the first applicant ], without citing a single piece of documentary evidence, seeks to cause deliberate confusion by recounting the misfortunes of René Hardy (who, once again, no one doubts helped the Germans although it is not known to what extent he did so voluntarily) and Raymond and Lucie Aubrac, whom no one has ever accused of such collaboration, for good reason. ... ... [ The first applicant ’ s ] aim is still the same : to lead people to believe that Aubrac is lying and that what he clearly stated at the material time no longer matters, as he does not repeat it in identical terms fifty years on. ... F. The offences of defamation are made out Both the publication of the ‘ Barbie testament ’ and the comments of [ the first applicant ] in support of that document render [the applicants] liable for defamatory statements in the form of precise allegations, although sometimes in the form of innuendo, against two specific persons, Raymond and Lucie Aubrac, whose honour and reputation have been considerably tarnished by the said allegations. The most harmful allegations in a book whose entire content is defamatory are as follows: A. Allegations against Raymond Aubrac 1. Raymond Aubrac was the French officer whom the Germans used to infiltrate the leaders of the Secret Army upon its formation. 2. Raymond Aubrac was a member of the Resistance whom Barbie turned into one of his department ’ s agents on his arrest in March 1943. 3. Raymond Aubrac lied about the date of his first arrest : it took place on 13, not 15, March 1943. 4. Raymond Aubrac, who was controlled by the French police, was not in fact arrested on 15 March 1943, when the French police went to one of his homes. 5. Raymond Aubrac was responsible for the ‘ mousetraps ’ that were set for members of the Resistance movement in Lyons between 13 and 15 March 1943. 6. Raymond Aubrac was not released on 10 May 1943 pursuant to a freely made decision of the investigating judge ..., but because the German authorities had compelled the French judicial authorities to release him. 7. Raymond Aubrac lied about the date of his release following his first arrest in order to hide the fact that for four days, between 10 and 14 May 1943, he had remained at the disposal of Barbie, the head of the Gestapo. 8. After being informed on Saturday 19 June 1943 of the time and venue of the meeting due to take place in Caluire of various Resistance leaders including Jean Moulin, Raymond Aubrac had informed his wife, who was thus able to inform the head of the Gestapo. 9. Raymond Aubrac was released voluntarily by the Germans on 21 October 1943, when English agents took part in an operation to free one of their agents, Jean Biche, and Barbie, who had been informed of the operation, seized the opportunity to allow his agent Raymond Aubrac to escape. 10. In general, Raymond Aubrac ’ s conduct with regard to the German authorities in Lyons in 1943 was similar to that of René Hardy, whom the Germans were using at that time. B. Allegations against Lucie Aubrac 1. Lucie Aubrac had concealed the fact that her husband was released on 10 May 1943, not as a result of action she had taken, but by virtue of an order of the investigating judge ... acting on the instructions of Barbie, the head of the Gestapo. 2. It was not Lucie Aubrac who had arranged the operation that had enabled three members of the Resistance, who had been arrested at the same time as Raymond Aubrac, to escape from L ’ Antiquaille Hospital on 24 May 1943. 3. After being informed by her husband of the time and place of the meeting at Dr Dugoujon ’ s home in Caluire on 21 June 1943, Lucie Aubrac had communicated the information to Barbie, the regional head of the Gestapo, on Sunday, 20 June. 4. Lucie Aubrac, whose controlling officer was Floreck, Barbie ’ s deputy, had agreed to act as liaison officer between her husband and ... Barbie to avoid ‘ giving her husband away ’. 5. Lucie Aubrac could only have gained access to the premises used by the Gestapo if she was a Gestapo agent. 6. It was with the full agreement of the Gestapo, and more specifically Barbie, that Lucie Aubrac was able to arrange her husband ’ s ‘ escape ’ in an operation that was organised not by her, but by the Intelligence Service, on 21 October 1943. Each of these defamatory statements ... must give rise to liability under section 31 of the Act of 29 July 1881. These defamatory statements, which accuse [ the Aubracs] of treachery and of concealing treachery, constitute a direct attack on their status as founding members and organisers of the Freedom ( Libération ) Resistance network and, in Raymond Aubrac ’ s case, as the military commander of the Secret Army. This reference to section 31 of the Act of 29 July 1881 is inescapable since, as the Criminal Division of the Court of Cassation reiterated in a judgment of 4 October 1989 ( in Pierre de Bénouville ) : ‘. .. By virtue of a combination of sections 30 and 31 of the Freedom of Press Act and section 28 of the Act of 5 January 1951, the protection against defamation afforded to certain recognised Resistance movements which are likened to the Army and Navy extends to the members of these movements if the defamatory statement concerns their status or actions as members. ’ ” 16. In a judgment of 2 April 1998, the tribunal de grande instance began by examining the various alleged defamatory statements in the chronological order of the underlying events and by comparing Klaus Barbie ’ s signed written submissions with the first applicant ’ s text, as it considered that the very purpose of the first applicant ’ s book was to “compare the allegations of these ‘ written submissions ’ with the account of events given by Mr and Mrs Aubrac on various occasions and the other oral and documentary evidence relating to that period. ... The entire book thereafter focuses on this ( major ) charge of treachery ”. 17. The tribunal de grande instance thus examined the circumstances of Raymond Aubrac ’ s initial arrest in March 1943, his release in May 1943, the escape from L ’ Antiquaille Hospital, the Caluire episode, events post - Caluire and the escape from boulevard des Hirondelles, and concluded : “Thus ..., without formally corroborating the direct accusations made in ‘ Barbie ’ s written submissions ’, the [first applicant] sets about sowing confusion by combining a series of facts, witness statements and documents of different types and varying degrees of importance which together serve to discredit the accounts given by the civil parties; he also questions the motives for their deception and lies, and – despite the reservations expressed by the author – surreptitiously renders plausible the accusation of treachery and manipulation made in ‘ Barbie ’ s written submissions ’ that constitutes the underlying theme of the entire book. ... The civil parties are therefore right to consider that the entire book, and particularly the passages [reproduced in the judgment], tarnish their honour and reputation. The publication of the written submissions signed by Klaus Barbie and the quotation in various parts of the text of extracts from them constitutes defamation by reproduction of libellous accusations or allegations, an offence expressly provided for by section 29, first paragraph, of the Freedom of the Press Act. As for the author ’ s comments, they constitute defamation by innuendo in that they encourage the reader to believe that very grave questions exist over Mr and Mrs Aubrac ’ s conduct in 1943 that outweigh the certainties that have been hitherto accepted; they thus lend credence to Barbie ’ s accusations.” 18. The tribunal de grande instance then considered which section of the Freedom of the Press Act was applicable in the case and, referring to the Act of 5 January 1951 and the Court of Cassation ’ s case-law, stated that the likening of recognised Resistance movements to the Army and Navy also applied to members of those movements. It noted that for Convention purposes “law” included both legislation passed by Parliament and judicial interpretation of that legislation, provided it was sufficiently settled and accessible. It accordingly found that section 31 of the Act of 29 July 1881 was applicable. 19. It went on to explain that the defamatory statements were deemed to have been made in bad faith and that the burden of proof was on the accused to provide sufficient justification to establish that they had acted in good faith. They had to show that there had been a legitimate interest in publication unaccompanied by personal animosity, that a proper investigation had been carried out and that the tone was measured : “While the work of historians, who must be permitted to go about their work with total liberty if the historical truth is to be established, may on occasion lead them to make critical assessments containing defamatory accusations against the actors – both living and dead – of the events they are studying, it can only be justified if the historian proves that he has complied with his scientific obligations. ... As soon as they came into the hands of the investigating judge and even though only the specialists knew what they contained, ‘ Barbie ’ s written submissions ’ received a degree of publicity that encouraged rumours to spread. There was, therefore, an argument for full publication, provided it was accompanied by an explanation of the historical background and a critical analysis that would enable the reader to form a considered opinion on the weight to be attached to the last statements of the former Nazi officer.” With that requirement in mind, the tribunal de grande instance found that the characteristic features of the applicant ’ s book were the excessive importance given to ‘ Barbie ’ s written submissions ’, a manifest lack of adequate documentation on the circumstances of Raymond Aubrac ’ s first arrest on 15 March 1943 and his release, a failure to rank the sources of information on the escape from L ’ Antiquaille Hospital in order of importance, insufficient qualification of his remarks on Caluire and the escape of 21 October, a lack of critical analysis of the German sources and documents as such and its neglect of the statements of those who took part in the events. The tribunal de grande instance set out in detail and gave reasons for each of these assertions and concluded: “ ... judges are required by the nature of their task not to abdicate when confronted with the scholar ( or someone claiming to be such ) and to decide the case in law, thereby contributing in their own way to the regulation of relations in society. Thus, judges cannot, in the name of some higher imperative of historical truth, abandon their duty to protect the right to honour and reputation of those who were thrust into the torment of war and were the unwilling but courageous participants therein. Immortalised by their contemporaries as illustrious myths, these men and women have not for all that become mere subjects of research, shorn of their personality, deprived of sensibility or divested of their own destinies in the interests of science. Because he has forgotten this and has failed to comply with the essential rules of historical method, the accused ’ s [ the author of the book ’ s ] plea of good faith must fail. ” 20. The tribunal de grande instance therefore found the first two applicants guilty, as principal and accomplice respectively, of the offence under sections 29, first paragraph, and 31, first paragraph, of the Act of 29 July 1881 of public defamation of Mr and Mrs Aubrac in their capacity as members of a recognised Resistance movement. It sentenced the first applicant, as the principal, to a fine of 100, 000 French francs (FRF) and the second, as an accomplice, to a fine of FRF 60, 000. It also found them jointly and severally liable with the third applicant to pay Mr and Mrs Aubrac damages of FRF 200, 000 each. It dismissed an application for an order for the book ’ s destruction, but made an order for publication of a statement in five daily newspapers and for each copy of the book to carry a warning in like terms. Lastly, it found the third applicant liable under the civil law. 21. The applicants appealed against that decision. 22. In a judgment of 10 February 1999, the Paris Court of Appeal dismissed objections of nullity that had been made by the applicants and, on the merits, examined the following questions in turn : whether the prosecution was lawful, legitimate and necessary, whether the remarks were defamatory, whether the defendants had acted in good faith and whether section 31 of the Act of 29 July 1881 was applicable. 23. As to whether the remarks were defamatory, the Court of Appeal endorsed the reasoning of the court below and added that there were a number of factors which indicated that the author and publisher had decided to make the Aubracs ’ alleged betrayal the subject of their publication; these included the editorial presentation, the general structure of the book, the wraparound banner that juxtaposed ‘ legend ’ and ‘ history ’, and the conclusion to the book which was on the same theme. 24. With regard to the question of defamation by innuendo, the Court of Appeal rejected the criticism of the tribunal de grande instance ’ s reasoning : “ Having thus decided how the book would be balanced : systematic doubt where the Aubracs are concerned and the use of Barbie ’ s document as a reference – albeit one to be treated with caution – [ the first applicant] proceeds, in circumstances that are accurately described in the judgment, systematically to refuse to accord any credit to Mr and Mrs Aubrac ’ s account. To take the two episodes to which the defence refer : as regards the escape from L ’ Antiquaille, the author is not merely being irreverent but clearly makes accusations of inaccuracy, contradiction (page 268) and of misrepresenting the truth (page 80) : there is no better way of insinuating that someone is lying.” 25. The Court of Appeal then examined the applicants ’ plea that they had acted in good faith and rejected it. It did not deny that there could be an interest in analysing major events in the history of the Resistance and found that although some of the expressions used in the book were unpleasant they did not suffice to establish the existence of personal animosity. However, it concluded that the first applicant had failed to act with the necessary rigour for the following reasons: “Anyone who alleges a specific fact must first seek to verify its accuracy. Although this requirement is general, it is especially justified when the accusation is particularly serious – such as of an act of treachery leading to the death of the main Resistance leader – and when, as a historian, its maker is accustomed to questioning sources.” The Court of Appeal then proceeded to identify the factors from which it had concluded that that requirement had not been complied with: the first applicant ’ s failure to consult the file on the investigation that was conducted after the arrests in March 1943, even though it would have enabled him to establish the date of Raymond Aubrac ’ s arrest and whether he was already in custody when his home was searched; his lack of interest in the testimony of direct witnesses from that period who were still alive when the book was written; and his failure to investigate certain documents. Noting repeated failures by the first applicant to exercise sufficient caution ( he had published the Barbie document without subjecting it to genuine critical analysis, had directly accused the civil party of lying and had dismissed the boulevard des Hirondelles operation by members of the Resistance led by Lucie Aubrac as a sham ), the Court of Appeal rejected his plea of good faith. 26. As regards the decision to apply section 31 of the Act of 29 July 1881, the Court of Appeal referred to section 28 of the Act of 5 January 1951 and to two judgments of the Court of Cassation and found that the civil parties had been defamed exclusively with regard to their activities as members of the Resistance “since [ the first applicant ’ s ] entire thesis conveyed to the reader the notion that they were guilty of treachery”. It rejected an argument regarding the quality of the statute that had been applied in the case before it, noting that it was some forty years old and had been the subject matter of “settled and unambiguous case-law of the highest court for some twenty years”. 27. Finding that the sentences that had been handed down were just and proportionate, the Court of Appeal upheld all the provisions of the judgment of the court below. 28. The applicants appealed to the Court of Cassation, pleading, inter alia, Articles 7 and 10 of the Convention on the basis that the statutory provision that had been applied was neither clear nor precise and that its interpretation by the courts was inaccessible, unforeseeable and too wide. In their final two grounds of appeal, they alleged that the Court of Appeal had failed to give reasons for its decision to hold the applicants civilly and criminally liable for public defamation. 29. In a judgment of 27 June 2000, the Court of Cassation dismissed the appeal, holding, inter alia, that the court below had properly justified its decision. It found that the Court of Appeal had applied the law correctly: “ By virtue of a combination of section 28 of the Act of 5 January 1951 and sections 30 and 31 of the Act of 29 July 1881, firstly, these provisions afford protection against defamation to certain recognised Resistance movements which are likened to the regular Army and, secondly, this protection extends to members of these movements if the defamatory statement concerns their status or actions as members. ” It examined the final two grounds of appeal together and dismissed them, holding: “ The Court of Cassation is satisfied from the wording of the judgment and its examination of the procedural documents that the Court of Appeal has, for reasons which are neither insufficient nor self-contradictory, firstly, correctly analysed the meaning and scope of the impugned statements and thus identified all the constitutive elements of fact and intent of the offence of which it found the accused guilty and, secondly, used its unfettered discretion to analyse the special circumstances and concluded that the accused ’ s plea of historical criticism in good faith had to be rejected .” | The applicants in this case were a journalist and writer, a publishing company and the president of that company. In 1997 the company published a book by the first applicant entitled Aubrac-Lyons 1943, which recounts the arrest by Klaus Barbie of the main Resistance leaders in Caluire, including Jean Moulin and Raymond Aubrac. Following a complaint by Raymond and Lucie Aubrac, the applicants were found guilty of criminal libel and ordered, inter alia, to pay a fine and damages. They submitted that their conviction had infringed their right to freedom of expression. |
43 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1964 and lives in Caralevë, in the municipality of Shtime (Kosovo). 5. On 28 April 1993 the applicant married F.M. , an Albanian national. The couple had a child, I.B., who was born on 20 January 1997. In 1998 the applicant and F.M. separated. 6. F.M ., together with her daughter, moved to her parents ’ house in Vlora, Albania. 7. On 6 May 1999, using forged documents, the applicant ’ s wife married another person without being divorced from the applicant. 8. It appears that on 15 September 1999 the Vlora District Court annulled F.M. ’ s second marriage. On an unspecified date she married H.I. , an Albanian national who resided in Greece. 9. During the years that followed F.M. ’ s third marriage, she frequently travelled to Greece, leaving her daughter for long periods with her parents in Vlora, or taking her to Greece without the applicant ’ s consent. 10. F.M. and her parents prohibited the applicant from having contact with his daughter. Since his separation from F.M. , the applicant has been permitted to see his daughter only twice, in September 2000 and May 2003. 1. Divorce and custody proceedings 11. On 24 June 2003 the applicant brought divorce proceedings before the Vlora District Court. 12. On 26 June 2003 the applicant requested the Vlora Police District to block his daughter ’ s passport in view of the fact that his wife was planning to take her to Greece without his consent. 13. Despite the applicant ’ s requests to the Vlora Police District, it appears that his wife took the child to Greece on 15 January 2004, using an official certificate in which the applicant ’ s daughter had been registered with the name I.M. , using F.M. ’ s surname. 14. The applicant ’ s wife was not present at the hearings. The latter ’ s father testified before the court that his grandchild was in Greece with her mother, who resided there as an economic refugee. 15. On 4 February 2004 the Vlora District Court decreed the parties ’ divorce. The court granted custody of the child to the applicant, having regard to the wife ’ s lack of interest in the child ’ s life, the instability of her residential arrangements and her long periods of separation from the child. 16. On 19 March 2004 the divorce and custody decisions became final. 2. Enforcement proceedings 17. On 5 April 2004 the Vlora District Court issued a writ for the enforcement of the Vlora District Court ’ s judgment of 4 February 2004. 18. On 13 July 2004 the Vlora Bailiffs ’ Office informed the applicant that it was impossible to enforce the judgment since the child was not in Albania. 19. On 15 August 2004 and 13 January 2005 the applicant applied to the Albanian Ministry of Justice to secure the return of his daughter. 20. On 11 January 2005, when questioned by the bailiffs, F.M. ’ s father declared that F.M. and the child were living abroad and that he had no news of their whereabouts. The bailiffs went to F.M. ’ s home on three occasions between January 2005 and May 2005. 21. In May 2005 the Selenice District Police Station informed the bailiffs that F.M. and her daughter were not living in Athens and that F.M. ’ s father had moved to an unknown address in Tirana. 22. In July 2005 the Bailiffs ’ Office informed the applicant that in order to comply with the bilateral agreement between Albania and Greece he had to introduce a request and specify the precise address of the child in Greece. 23. The applicant sent numerous requests to the Albanian authorities, the Greek Embassy in Albania, the Ombudsperson of Albania ( Avokati i Popullit ) and the Ombudsperson of Kosovo, in order to obtain assistance in securing the enforcement of the custody decision. 3. Criminal proceedings for child abduction 24. On 14 August 2004 the applicant initiated criminal proceedings with the Vlora District Court against his former wife, accusing her of child abduction. 25. On 13 October 2004 the Vlora District Court informed the Albanian Ombudsperson that no lawsuit had been filed with it relating to the abduction of the applicant ’ s daughter. 4. Criminal proceedings against A.C. 26. On 15 December 2003 the applicant initiated criminal proceedings against A.C., a Civil Status Office employee. He accused her of falsifying various documents that had enabled F.M. to remove I.B. from Albania, and particularly of forging documents declaring his wife to be unmarried and altering his daughter ’ s surname. 27. On 26 January 2004 the Vlora District Court decided to discontinue the proceedings. 5. Recent developments 28. On 22 August 2006 the Government informed the Registry that on 31 March 2006 the Vlora Court of Appeal had repealed the custody judgment of 4 February 200 4 on the grounds that F.M. had not been duly informed of the proceedings on the custody of her daughter. The domestic court decided to send the case to the Vlora District Court for a fresh examination and thus the custody proceedings are still pending. 29. On 23 August 2006, following the Registry ’ s request, the applicant stated that he had neither been informed of the institution of the new proceedings nor about their outcome. 30. The proceedings had been brought by F.M. ’ s lawyer and held in the applicant ’ s absence. | In 1998 the applicant and his wife separated and his wife moved out with their daughter (born in January 1997) to live with her parents. The applicant only managed to see his daughter once after the separation as his ex-wife and her parents refused to give him access to her. In June 2003 he brought divorce proceedings. At the same time he requested the police to block his daughter’s passport in view of the fact that his wife was planning to take her to Greece without his consent. Despite that request, in January 2004 the applicant’s wife managed to take her daughter to Greece. The divorce was granted in February 2004 and custody of the child was given to the applicant. This judgment, however, was never enforced. |
736 | Noise pollution | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1948 and lives in Valencia. A. Background to the case 9. The applicant has lived in a flat in a residential quarter of Valencia since 1970. 10. Since 1974 the Valencia City Council has allowed licensed premises such as bars, pubs and discotheques to open in the vicinity of her home, making it impossible for people living in the area to sleep. 11. Local residents first complained about vandalism and noise in the locality before 1980. 12. In view of the problems caused by the noise, the Valencia City Council resolved on 22 December 1983 not to permit any more night clubs to open in the area. However, the resolution was never implemented and new licences were granted. 13. In 1993 the City Council commissioned a report by an expert. The expert found that the noise levels were unacceptable and exceeded permitted levels. At 3.35 a.m. on Saturdays they were in excess of 100 dBA Leq (decibels), ranging from 101 to 115.9 dBA Leq. 14. In a report of 31 January 1995 the police informed the Valencia City Council that nightclubs and discotheques in the sector in which the applicant lived did not systematically close on time. They said that they were able to confirm that the local residents ’ complaints were founded. 15. On 28 June 1996 the City Council approved a new bylaw on noise and vibrations, which was published on 23 July 1996 in the Official Gazette of Valencia province. Article 8 of the bylaw lays down that in a family residential area (such as the one in which the applicant lives) external noise levels were not to exceed 45 dBA Leq between 10 p.m. and 8 a.m. Article 30 of the bylaw defines “acoustically saturated zones” as areas in which the large number of establishments, activity of the people frequenting them and passing traffic expose local residents to high noise levels and cause them serious disturbance. 16. Lastly, the bylaw specified the conditions that had to be satisfied for an area to be designated an “acoustically saturated zone” ( zona acústicamente saturada ) and the consequences of designation, which included a ban on new activities (such as nightclubs and discotheques) that led to acoustic saturation. 17. Following a resolution of the Valencia City Council sitting in plenary session on 27 December 1996, which was published in the Official Gazette of the Valencia province on 27 January 1997, the area in which the applicant lived was designated an acoustically saturated zone. 18. Nevertheless, on 30 January 1997 the City Council granted a licence for a discotheque to be opened in the building she lived in. The licence was subsequently declared invalid by a judgment of the Supreme Court of 17 October 2001. 19. In order to determine whether the area should be designated an acoustically saturated zone, the City Council took various sound-level readings to monitor acoustic pollution there. In each of its reports the City Council laboratory indicated that the noise levels exceeded those permitted by the bylaw. B. Court proceedings 20. The applicant was exasperated by the situation, which prevented her from sleeping and resting and caused her insomnia and serious health problems. On 21 August 1997 she lodged a preliminary claim with the Valencia City Council in which she relied on Article 15 (right to life and to physical integrity) and Article 18 § 2 (right to the privacy and inviolability of the home). She sought 3,907 euros (650,000 pesetas) for the damage she had sustained and the cost of installing double glazing. 21. Having received no reply from the authorities and in accordance with the Fundamental Rights (Protection) Act (Law no. 62/1978), the applicant lodged an application for judicial review with the Valencia High Court of Justice on 25 November 1997, alleging a violation of Articles 15 and 18 § 2 of the Constitution. 22. On 2 October 1997 the Valencia City Council lodged its written observations. It submitted that the application was premature and should be declared inadmissible, as the Council could still find a solution. This preliminary objection was dismissed in a decision of 27 October 1997. 23. On 11 December 1997 the representative of state council ’ s office argued that the court should find in favour of the applicant. He considered that there had been a violation of Articles 15 and 18 § 2 of the Constitution and that the applicant ’ s claim for damages was justified. 24. In a judgment of 21 July 1998, delivered after an adversarial hearing in public, the Valencia High Court of Justice dismissed the application for judicial review. It found that the readings had been taken in the entrance hall to the building, not in the applicant ’ s flat, and could not entail a violation of Articles 15 and 18 § 2 of the Constitution; it also noted that the medical expert ’ s report stated only that the applicant had been receiving treatment for insomnia for several years, without indicating the length of or reason for such treatment. 25. On 9 October 1998 the applicant lodged an amparo appeal with the Constitutional Court. Relying on Articles 14 (equality) and 24 (right to a fair hearing) of the Constitution, she complained that the High Court of Justice had not given sufficient reasons in its judgment or assessed the evidence. She also complained under Articles 15 and 18 § 2 of the Constitution of a violation of her rights to life, physical and mental integrity, privacy and the inviolability of the home. 26. In a decision of 29 May 2000, the Constitutional Court declared the amparo appeal admissible and invited the applicant, the representative of state council ’ s office and the Valencia City Council to submit their observations. On the same day, it summoned the parties to a hearing on the merits on 16 May 2001. 27. At the hearing on 16 May 2001, which was attended by all the parties, the applicant repeated her factual and legal submissions, stressing that there had been a violation of her fundamental rights. 28. The Valencia City Council raised a number of preliminary objections. It further submitted that the appeal was confined to the decision of the Valencia High Court of Justice. With regard to the alleged violation of Articles 15 and 18 § 2 of the Constitution, it stated that there was no evidence of noise levels inside the applicant ’ s home and that the authority concerned should not bear sole responsibility for the noise to which the applicant had allegedly been exposed, as it had very limited means at its disposal to combat it. 29. The representative of state council ’ s office agreed with the applicant that there had been a violation of Articles 15 and 18 § 2 of the Constitution. He argued that the amparo appeal should be regarded as hybrid, since it both accused the Valencia City Council of failing to defend the fundamental rights set out in Articles 15 and 18 of the Constitution and challenged the Valencia High Court of Justice ’ s decision, alleging a violation of Articles 14 and 24 of the Constitution also. 30. As regards the violation of Articles 15 and 18 § 2 of the Constitution, the representative of state council ’ s office said that, in the light of the judgments of the European Court of Human Rights, in particular in the case of López Ostra v. Spain, there had been a violation of the applicant ’ s right to the inviolability of her home, as her home environment had been rendered unfit for ordinary everyday living. On the basis of the Court ’ s case-law, he sought a broader definition of the constitutional concept of the “home”. 31. As regards noise levels inside the applicant ’ s home, the representative of state council ’ s office considered that the burden of proof had been reversed, as it was clear in the instant case that officials from the City Council had confirmed on a number of occasions that the maximum permitted noise levels were being exceeded. Consequently, he did not consider it necessary to require such proof from the applicant. 32. In a judgment of 29 May 2001, which was served on 31 May 2001, the Constitutional Court dismissed the appeal after also dismissing the Valencia City Council ’ s preliminary objections. It ruled that the amparo appeal was hybrid in nature, that is to say that it alleged a violation of Articles 15 and 18 § 2 of the Constitution by the Valencia City Council and a breach of Articles 14 and 24 of the Constitution by the Valencia High Court of Justice. 33. As regards the alleged violation of Articles 14 and 24 of the Constitution, the Constitutional Court began by noting that it was not entitled to substitute the High Court ’ s assessment of the evidence with its own. As to the applicant ’ s allegation that the judgment did not contain sufficient reasons, it noted that the High Court ’ s decision could not be regarded as arbitrary or unreasonable. It further observed that the applicant had not identified the decisions on which she relied in alleging discrimination. Thus, there was no evidence of any violation of Articles 14 and 24 of the Constitution. 34. With regard to the alleged violation of Articles 15 (right to life and physical integrity) and 18 § 2 (right to privacy and to the inviolability of the home) of the Constitution, the Constitutional Court referred to the decisions in which the European Court of Human Rights had held that, in cases of exceptional gravity, repeated damage to the environment could infringe the right to respect for private and family life under Article 8 § 1 of the Convention, even if did not endanger health. The Constitutional Court held, however: “... there may only be a violation of Article 15 of the Constitution if the level of acoustic saturation to which a person is exposed as a result of an act or omission of a public authority causes serious and immediate damage to his or her health.” 35. The Constitutional Court found that that test had not been satisfied in the case before it and pointed out: “... even though the appellant maintains that the noise levels to which she was exposed turned her into an insomniac, the only evidence she has adduced is a certificate stating that she was admitted to hospital and saw a doctor, without any indication of the period for which she had been suffering from lack of sleep or the cause thereof. ...” 36. The Constitutional Court found that the applicant had not established a direct link between the noise and the damage she had sustained. 37. As to the allegation of a violation of Article 18 of the Constitution, the Constitutional Court further found that she had not established the existence of a nuisance in her home that amounted to a violation of the constitutional provision. It stated: “... the appellant has confined herself to making a general complaint by stating that the origin of the noise was diffuse and not restricted to a single source of production, and that the acoustic saturation resulted from a combination of noises. ... On the contrary, her entire case is based on a few sound-level readings taken inside her home which gave disparate results ... and do not establish that there has been a violation of the right relied on. ...” 38. By way of conclusion, the Constitutional Court dismissed the amparo appeal on the following ground: “Consequently, as regards the alleged violation of the rights relied on the amparo appeal must be dismissed, as the appellant has failed to prove the existence of a genuine effective breach of fundamental rights attributable to the Valencia City Council.” 39. That judgment was delivered by the Constitutional Court sitting as a full court. However, two judges expressed concurring opinions. The first said that the judgment restricted the free development of the personality at home. He considered that the conditions that had to be satisfied for there to be a violation of fundamental rights in the case under consideration were unreasonable and he defended the need to speak of a triple layer of constitutional protection, ranging from the right to physical and moral integrity (Article 15 of the Constitution) to an environment that was suitable for personal development (Article 45 § 1 of the Constitution), via the right to privacy in the home (Article 18 § 2 of the Constitution). 40. The second judge pointed out in his concurring opinion that there was a preliminary problem that had not been adequately dealt with, namely the degree to which the relevant authority was required to provide the requested protection. Determining the extent of that obligation was a prerequisite to establishing whether or not there existed a causal link between the authority ’ s failure to act and the alleged violation. The authorities were obliged to exercise their power when the breach of the fundamental rights attained a certain level of gravity. | The applicant complained of noise and of being disturbed at night by nightclubs near her home. She alleged that the Spanish authorities were responsible and that the resulting noise pollution constituted a violation of her right to respect for her homes. |
817 | Prohibition of discrimination (Article 14 of the Convention and Article 1 of Protocol No. 12 to the Convention) | 2. A list of the applicants is set out in the appendix, as are the applicants’ personal details, the date of introduction of their applications before the Court and the information regarding their legal counsel, respectively. 3. The Government were represented by their Agent, Ms Zorana Jadrijević Mladar. 4. The relevant facts of the case, as submitted by the parties, may be summarised as follows. The applicants’ medals and the national sporting achievements recognition and rewards system 5. Between 1961 and 1992 the applicants won a number of medals for Yugoslavia, as part of the national team, at the Blind Chess Olympiads. The highest achievement of the fourth applicant, Mr Dragoljub Baretić, in this competition was a gold medal, while the highest achievements of the first, second and thirds applicants, Mr Branko Negovanović, Mr Sretko Avram and Mr Živa Markov, respectively, were silver medals. 6. In 2006 the respondent State enacted the Sporting Achievements Recognition and Rewards Decree which provided, under specified circumstances, for a national recognition and rewards system consisting of an honorary diploma, a lifetime monthly cash benefit, and a one-time cash payment (see paragraphs 24-34 below). The requests adDressed to the administrative authorities 7. On an unspecified date in 2007 the Serbian Chess Federation ( Šahovski savez Srbije ) recommended that a number of chess players who had won medals in international competitions, including the applicants, be formally proposed to the Government ( Vlada Republike Srbije ) by the Ministry of Education and Sport ( Ministarstvo prosvete i sporta ) as persons entitled to the national sporting recognition awards for their achievements (see paragraph 33 below). 8. Since, unlike the sighted chess players with similar accolades, the applicants had not been formally proposed as persons entitled to such recognition and awards, on 27 February 2007 the Serbian Blind Persons Federation ( Savez slepih Srbije ) sent a letter to the said ministry urging it to treat blind chess players on an equal footing compared to all other athletes and chess players, with or without disabilities, who had attained the same or similar sporting results. 9. On 30 July 2009 the Serbian Chess Federation and the applicants lodged additional requests to the same effect with the Ministry of Youth and Sport ( Ministarstvo omladine i sporta ), noting that the applicants had been discriminated against, having still not received their national sporting recognition awards. The ministry in question was also notified that, should no redress be forthcoming, an administrative dispute would be brought before the relevant courts (see paragraphs 37-42 below). 10. On 10 October 2009 the Ministry of Youth and Sport informed the applicants that they did not fulfil the legal requirements, as set out in the Sporting Achievements Recognition and Rewards Decree, in order to be granted the national sporting recognition awards and that this was why no recommendation had been made to the Government in this regard. The civil proceedings 11. On 23 October 2009 the applicants lodged a civil discrimination claim against the Republic of Serbia. The applicants alleged, inter alia, that they had been discriminated against and dishonoured compared to other athletes or players with similar sporting achievements. In particular, all sighted chess players had been granted the national recognition awards in question while their own requests in this respect had been ignored. The applicants therefore sought a judicial declaration that they had been discriminated against and redress for the pecuniary and non-pecuniary harm suffered in this connection (see paragraphs 35 and 36 below). 12. On 1 April 2010 the Novi Sad Court of First Instance ( Osnovni sud u Novom Sadu ) ruled in favour of the applicants and in so doing: (a) established that they had indeed been discriminated against compared to sighted chess players and Paralympic medal winners; (b) awarded each applicant 300,000 Serbian dinars (RSD), amounting to approximately 2,995 euros (EUR) at that time, on account of the mental anguish suffered in this regard and the harm caused to their honour and reputation, plus statutory interest; (c) recognised that the applicants, respectively, were entitled to an honorary diploma in recognition of their achievements and a lifetime monthly cash benefit as of 23 October 2009, consisting of accrued and future benefits, the former with statutory interest and the latter until the relevant regulations provided for such a possibility; (d) ordered that the first, second and third applicants each be paid EUR 45,000 in RSD on account of the one-time cash payment for their achievements, with applicable interest as of 23 October 2009; (e) ordered that the fourth applicant be paid EUR 60,000 in RSD on account of the said one-time cash payment, also with applicable interest as of 23 October 2009; and (f) awarded the applicants RSD 309,000 in litigation costs, amounting to approximately EUR 3,085 at that time. 13. Following an appeal lodged by the defendant, on 5 July 2011 the Novi Sad Appeals Court ( Apelacioni sud u Novom Sadu ) quashed the impugned judgment and ordered a retrial as regards the ruling described under points (a) and (b) in paragraph 12 above. Concerning the ruling described under points (c), (d) and (e), however, the appellate court rejected the applicants’ claims as inadmissible, being of the view that they involved issues of an administrative nature which could not be adjudicated by a civil court (see paragraph 40 below). 14. On 14 November 2011 the Novi Sad Court of First Instance ruled partly in favour of the applicants. Specifically, it (a) established, once again, that they had been discriminated against compared to sighted chess players and Paralympic medal winners; (b) awarded each applicant RSD 500,000, amounting to approximately EUR 4,870 at that time, on account of the mental anguish suffered in this connection and the harm caused to their honour and reputation, plus statutory interest; and (c) ordered that the applicants be paid RSD 405,000 in litigation costs, amounting to approximately EUR 3,945 at that time. 15. Following a further appeal lodged by the defendant, on 14 June 2012 the Novi Sad Appeals Court reversed the impugned judgment and ruled fully against the applicants. The appellate court noted, inter alia, that the Blind Chess Olympiad had not been among the competitions listed in the Sporting Achievements Recognition and Rewards Decree. There had hence been no discrimination when the Ministry of Youth and Sports had merely informed the applicants thereof. Furthermore, the State had had the prerogative to select the competitions which it deemed most important based on the popularity of the sport in question, its significance internationally, and the country’s “realistic financial resources”. The Novi Sad Appeals Court lastly stated that, in any event, the applicants could have made use of the administrative disputes procedure but had failed to do so (see paragraph 9 above). 16. On 5 September 2012 the Chief Public Prosecutor’s Office ( Republičko javno tužilaštvo ) refused to lodge, on the applicants’ behalf, a request for the protection of legality ( zahtev za zaštitu zakonitosti ) with the Supreme Court of Cassation ( Vrhovni kasacioni sud ). 17. On 6 March 2013 the Supreme Court of Cassation dismissed the applicants’ appeal on points of law ( revizija ). Just like the Novi Sad Appeals Court before it, this court noted that the Blind Chess Olympiad had not been among the competitions listed in the relevant regulations and that the applicants had thus not been entitled to the national sporting recognition awards in question. Moreover, there had been no evidence that any other blind chess players had ever received those very awards, meaning that there had also been no differential treatment among the blind chess players themselves. The constitutional court 18. On 8 May 2013 the applicants lodged an appeal with the Constitutional Court ( Ustavni sud ). 19. On 17 December 2015 the Constitutional Court noted that, according to the impugned decisions rendered by the civil courts, the applicants had not suffered discrimination since their medals had been won in the course of competitions which had not been listed in the Sporting Achievements Recognition and Rewards Decree. Furthermore, the Constitutional Court stated that it had itself already rejected, on 9 July 2013, a motion challenging the constitutionality and legality of the said decree. Other relevant facts 20. On 29 October 2014 the International Chess Federation ( Fédération Internationale des Échecs ), also referred to as the World Chess Federation or FIDE by its French acronym, sent a letter to the Serbian Chess Federation. The letter reads as follows: “The International Braille Chess Association (IBCA) is an integral part of the World Chess Federation ... The results achieved by the members of the IBCA on worldwide and European championships are also official results of the FIDE. Blind chess players have the same chess titles, which are obtained in the same manner as the ones obtained by healthy chess players. Furthermore, blind chess players are listed on the registration and rating lists of the FIDE together with healthy chess players, and based on the results achieved at the IBCA competitions, which are a part of the competing system of FIDE. Every blind chess player as well as every healthy one has his or her own registration and identification number, based on which ... [he or she] ... can be located on the registration and rating list of FIDE. The World Chess Olympiad, held as part of the competing system of the FIDE, includes chess [O]lympics for the healthy as well as for the blind (the Blind Chess Olympiad). It is the same with other European and worldwide tournaments organised by the FIDE – they include tournaments for both the healthy and the blind chess players. This opinion is issued at the request of the Serbian Chess Federation for the purpose of exercising the right of the blind chess players to obtain national sports acknowledgments issued by the Republic of Serbia in the same way healthy chess players do. As mentioned before, FIDE treats both groups of chess players as equals – they are entitled to the same titles and ratings and have the same rights.” 21. In a letter lacking a date, addressed to the Ministry of Youth and Sport, the IBCA stated, inter alia, that the applicants had won medals in Blind Chess Olympiads. The IBCA further noted that their association was “a rightful member of FIDE” and that blind chess players were, based on their results, “on the single official list of FIDE together with chess players without sight impairment”. Lastly, “in accordance with the basic postulates of ethics and fair-play in sports” the IBCA requested the ministry not to discriminate against blind chess players when it came to formally recognising their achievements. 22. In their submissions lodged with the domestic authorities, the applicants maintained, inter alia, that of all the medal winners and champions over the years, a total of some 400 persons including sighted chess players, only blind chess players had been denied their national sporting recognition awards. 23. As of today and despite repeated efforts to do so, chess is still not included at the Olympic Games or the Paralympic Games organized by the International Olympic Committee and the International Paralympic Committee respectively. | This case concerned alleged discrimination by the Serbian authorities against blind chess players, its own nationals, who had won medals at major international events, notably in the Blind Chess Olympiad. Unlike other Serbian athletes with disabilities and sighted chess players who had attained the same or similar sporting results, the applicants had been denied certain financial benefits and awards for their achievements as well as formal recognition through an honorary diploma which, they alleged, had had a negative effect on their reputations. |
162 | Sterilisation operations | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1972 and lives in Covasna. A. Background information 7. The applicant, a nurse by profession, fell pregnant in January 2002. The development of her pregnancy was monitored by Dr P.C., a gynaecologist working in the Covasna Town Hospital, the same hospital as the applicant. 8. While she was in the sixteenth week of pregnancy, the foetus was diagnosed with hydrocephalus. 9. Following a consultation with her doctor, it was decided that the pregnancy should be interrupted. 10. On 13 May 2002 she was admitted to the Covasna Town Hospital. On the first day of admission she was put on a drip and medication was infused in order to induce abortion, but to no avail. The next day, concentrated glucose was injected into her stomach with the same purpose of inducing abortion. After the injection, the foetus stopped moving. On 15 May 2002, around midnight, she began to have a fever (39 degrees) and shivers, which lasted until the morning. She was not seen by a doctor during this time. She was only given painkillers. In the morning, while she was still in bed in the ward and without being taken to the surgery room, she expelled the foetus. She then started bleeding profusely. Despite the fact that two curettages were performed on her, the bleeding would not stop and she was diagnosed with disseminated intravascular coagulation (DIC). The doctor then decided to transfer her urgently to the County Hospital, located in Sfântu Gheorghe, some thirty kilometres away. Although she was in a critical condition, during the transfer she was assisted only by a nurse. 11. When she arrived at the County Hospital, the doctors there had to proceed with a total hysterectomy and bilateral adnexectomy in order to save her life. B. Complaint with the College of Doctors 12. After consulting several specialists, the applicant formed the opinion that Dr P.C. had committed serious medical errors in treating her. 13. She therefore lodged a complaint with the Covasna County College of Doctors. The County Counsel of the College of Doctors delegated the assessment of the matter to a doctor from Sfântu Gheorghe County Hospital. 14. On 18 September 2002 the College of Doctors reached the following conclusions : (i) the termination of pregnancy had been correctly indicated; (ii) as regards the injection of hyperbaric glucose solution, it was found that it could be done in two ways: vaginal or abdominal. The latter procedure ensured better hygiene conditions, but it required a very precise localisation of the placenta by ultrasound scans; these scans had not been found in the applicant ’ s medical records. It was also recommended that the injection of the substance be monitored by ultrasound. This method required the written consent of the patient, after prior notification of the possible risks and complications. The medical records did not include a consent signature or information as to the clinical investigation of any abnormalities by the ultrasound laboratory; (iii) DIC was not a direct consequence of an abdominal injection, but it represented a rare, very serious complication arising from this method; and (iv) taking into account that the diagnosis of DIC had been correctly detected in time to allow the applicant to be transferred to the county hospital, with the result that her life had been saved, no medical negligence could be identified. It was noted that there were some procedural failures in the handling of the case: the patient ’ s signature was missing on the consent form; an ultrasound description of the location of the placenta was missing; and a summary of lab test results was also missing. Taking into account the Town Hospital ’ s facilities and human resources, it was recommended that potentially risky cases should be treated in medical establishments which possessed the necessary facilities to deal with complications. C. Criminal complaint against Dr P.C. 15. On an unspecified date in 2002, the applicant lodged a criminal complaint against Dr P.C. containing two charges: grievous unintentional bodily harm and negligence in the conduct of a profession. In a statement given on 19 November 2002, she joined a civil claim to her complaint. On 25 November 2002 the investigating officer ordered a medical expert report to be prepared by specialist medical experts from the Covasna County Forensics Department and from the County Hospital. 16. On 4 December 2002 a medical expert report was issued by the Sfântu Gheorghe Forensics Department. This report concluded that no medical negligence had been committed, noting that the method chosen for inducing the abortion could be performed in any gynaecological hospital unit. Even if the medical records had not included the results of a lab test, this did not exclude the possibility that a test had been done but the results had not been written down. It was also underlined that the diagnosis of DIC had been quickly determined and that any delay in establishing this diagnosis might have rendered saving the applicant ’ s life almost impossible. 17. On 15 January 2003 the applicant lodged her objections to the medical expert report with the investigating authorities. She noted that she had not been consulted with regard to the objectives of the report and that in any event it was incomplete, even when compared to the questions formulated by the police. She wanted the medical expert report to answer the following questions: (i) whether there were other medical methods available for interrupting the pregnancy which presented less risks and which did not entail endangering her life; (ii) whether the chosen method presented risks and, if so, what the treating physician ’ s obligations were before applying this method and whether the doctor had complied with those obligations; (iii) whether the medical procedure was urgent or whether there had been time to direct her to another, better equipped, hospital unit; (iv) whether the use of ultrasound might have influenced the outcome of the procedure; and (v) whether subjecting her to a total hysterectomy and bilateral adnexectomy could have been avoided if she had been hospitalised in a medical establishment which possessed the necessary facilities to handle a diagnosis of DIC immediately after it was detected. 18. On 27 March 2003 the Târgu Mures Forensics Institute issued an opinion ( aviz ) on the case. Its conclusions were as follows: (i) the case file did not include medical information which could confirm the diagnosis of hydrocephalus with certainty; (ii) in the case of medical procedures for interrupting pregnancy later than the fourteenth week, the hospital ’ s standard procedure required that a medical form be filled in and signed by two specialist doctors and by the hospital director. This document was not found in the medical records; (iii) providing information to a patient in advance of treatment was compulsory. For certain procedures that entailed risk, the written consent of the patient was required. This document was not found in the medical records; (iv) prior to the procedure being carried out, lab tests had to be carried out. The results of such tests were not found in the medical records; (v) the haemorrhaging following the procedure could also have been caused by the rupturing of one or more blood vessels during the curettage, particularly taking into account the fact that the post-operative report had mentioned a haemorrhagic infiltration. The medical records did not include an ultrasound description of the localisation of the placenta; and (vi) the diagnosis of DIC was not confirmed by the lab tests, as there were no such results included among the medical documents submitted to the institute. 19. On 16 April 2003 the prosecutor attached to the Covasna County Court, noting that based on the two medical reports it could not be precisely determined whether there had been any medical negligence which could trigger criminal liability on the part of Dr P.C., asked the Mina Minovici National Forensics Institute (“ the Forensics Institute”) to review all the medical reports and to issue an opinion from a scientific point of view on the medical acts performed in the case. 20. The Forensics Institute issued its report on 26 January 2004. It confirmed the conclusions of the report of 4 December 2002 and thus excluded any medical negligence. It nevertheless observed that the doctor had failed to discuss the proposed procedure and the possible complications with the applicant and her family and to obtain her signature expressing her written consent to the proposed procedure. 21. On 17 February 2003 the prosecutor decided not to bring criminal charges against the practitioner concerned. This decision was confirmed by the supervising prosecutor and by a final decision of the Covasna County Court of 29 September 2004. | The applicant complained that as a result of serious medical errors she was no longer able to bear children. While she was in her sixteenth week of pregnancy, the foetus was diagnosed with hydrocephalus and it was decided that the pregnancy should be interrupted. After complications following treatments the applicant received to induce abortion, her doctor had to remove her uterus and excise her ovaries in order to save her life. She alleged that failures in her treatment had endangered her life and had left her permanently unable to bear children. She further complained that, because of the deficiencies of the investigation, doctors’ liability had not been established. |
1,082 | Dismissal | I. THE CIRCUMSTANCES OF THE CASE A. The first applicant 6. The first applicant, Mr Juozas Sidabras, was born in 1951 and lives in Kaunas. 7. He graduated from the Lithuanian Physical Culture Institute (currently the Lithuanian Sports University), qualifying as a sports instructor. 8. From 1975 to 1986 he was employed by the Lithuanian branch of the USSR State Security Committee (the KGB). After Lithuania declared independence in 1990, he found employment as a tax inspector. 9. On 31 May 1999 the Lithuanian authorities concluded that the first applicant was subject to the restrictions of Article 2 of the KGB Act (see paragraph 64 below). As a result, on 2 June 1999 he was dismissed by the tax authorities. 10. The first applicant brought an administrative action against the security intelligence authorities, claiming that his dismissal under the KGB Act, and the ensuing inability to find employment, were unlawful. The domestic courts dismissed his claims (see Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, §§ 14-16, ECHR 2004 ‑ VIII ). 11. On 29 November 1999 the first applicant submitted an application to the Court, alleging that he had lost his job and that his employment prospects had been restricted as a result of the application of the KGB Act, in breach of Articles 8 and 14 of the Convention. 12. By a judgment of 27 July 2004 in the case of Sidabras and Džiautas (cited above), the Court found a violation of Article 14 of the Convention, taken in conjunction with Article 8. It concluded that the ban on the first applicant seeking employment in various branches of the private sector, in application of Article 2 of the KGB Act, constituted a disproportionate measure, despite the legitimacy of the aims pursued (see § 61 of the judgment). The Court ordered the State to pay the first applicant 7,000 euros (EUR) as compensation for pecuniary and non-pecuniary damage and costs. 13. By a letter of 2 November 2004 the Court informed the Lithuanian Government that, as no request had been made under Article 43 of the Convention for the above-mentioned cases to be referred to the Grand Chamber, the judgment of 27 July 2004 had become final on 27 October 2004, in accordance with Article 44 § 2 of the Convention. 14. In 2005 the Committee of Ministers of the Council of Europe discussed the question of whether the Court ’ s judgments in the cases of Sidabras and Džiautas v. Lithuania (cited above) and Rainys and Gasparavičius v. Lithuania (nos. 70665/01 and 74345/01, 7 April 2005) had been executed. As regards individual measures, the Government informed the Committee of Ministers that the sum awarded to the first applicant had been paid to him. As regards general measures, the Lithuanian Parliament was preparing amendments to the KGB Act, which would be adopted in the near future. Moreover, in order to prevent similar violations of the Convention, the Lithuanian courts and other institutions had been informed about the Court ’ s judgment and provided with a translation (see also paragraphs 61 - 63 below). 15. On 8 December 2006 the first applicant started domestic court proceedings against the State of Lithuania, seeking 257,154 Lithuanian litai (LTL) in pecuniary damages, which he counted as ten years of his tax inspector ’ s salary, and LTL 500,000 in non-pecuniary damages, which he claimed to have suffered because of the continuing violation of his right to respect for his private life under Articles 8 and 14 of the Convention. The first applicant noted that since 1999 he had been unemployed and registered at the Šiauliai Employment Office ( Šiaulių darbo birža ), a State institution that provides assistance for job seekers. He argued that, even though he had not been in the service of the KGB for more than twenty years, owing to the restrictions imposed by the KGB Act he had been unable to gain employment in certain branches of the private sector as of 1999. 16. The first applicant also maintained that the Republic of Lithuania had disregarded its obligations under international treaties and the Convention. Without referring to specific judgments of the Court, he considered that the common principles developed by the Court required that Lithuania execute the Court ’ s judgment in his case without undue delay. It was his view that the Court ’ s judgment in his case obliged Lithuania to amend the KGB Act. However, the Lithuanian Parliament had ignored the Court ’ s judgment and had been stalling any amendment of the KGB Act, which the Court had found to be incompatible with the Convention. He concluded that since 27 October 2004, when the Court ’ s judgment in his case had become final, the Republic of Lithuania had continued to violate his employment rights. 17. On 21 February 2007 at the request of the first applicant, the Šiauliai Employment Office issued him with a document to the effect that he had been registered as a job seeker since 14 June 1999, and that between August 2004 and April 2006 he had been turned down a number of times for jobs proposed to him, “for justified reasons”. As it transpires from other documents presented to the Court, those justified reasons included: a lack of professional qualification or work experience for the posts of business manager at a factory producing television sets and at other local companies; another candidate had been chosen for the post of supervisor at a waste management facility; and a lack of English language skills for a job as a hotel manager. Without further explanation, it was also briefly noted in the document of 21 February 2007 that the first applicant “had not been employed because of applicable restrictions (he could not take up jobs which required him to manage people, pedagogical jobs or work in the security sector) ( bedarbis neįdarbintas dėl taikomų apribojimų: negali dirbti vadovaujantį, pedagoginį darbą, apsaugoje )”. 18. On 13 March 2007 the Vilnius Regional Administrative Court dismissed the first applicant ’ s claims as unsubstantiated. It observed that the Strasbourg Court had awarded him compensation for the pecuniary and non-pecuniary damage he had sustained before the Court had adopted its judgment on 27 July 2004. The first-instance court then turned to the first applicant ’ s claim about the continued discrimination against him after the Court ’ s judgment. On this point, it observed that the Šiauliai Employment Office ’ s document of 21 February 2007 stated that he “had not been employed because of applicable restrictions”. Without elaborating any further on the facts, the Vilnius Regional Administrative Court merely observed that that particular document and other materials of the case file did not prove that the first applicant ’ s right to choose a particular private sector job had been infringed because Article 2 of the KGB Act had not been amended after the Court ’ s judgment. Accordingly, his claim for damages for the period after the Court ’ s judgment was dismissed. 19. On 23 March 2007 the first applicant lodged an appeal with the Supreme Administrative Court. In addition to his previous arguments he further maintained that after the re-establishment of Lithuania ’ s independence, he had fully cooperated with the Lithuanian authorities and helped to disclose the identities of former KGB officers before they infiltrated the Lithuanian authorities. However, notwithstanding his loyalty to the independent Lithuania and the Court ’ s judgment in his favour, he had been banned from legal, pedagogical or other jobs because the KGB Act had remained in force. He had been unemployed since June 1999 and thus could not take care of his family. As it appears from his appeal on points of law, the first applicant did not mention any particular instance when he had been refused a job because of his status. Yet he reiterated his point of view that the principles of the Court required that States execute the Court ’ s judgments without undue delay and within the shortest time possible. 20. On 14 April 2008 the Supreme Administrative Court upheld the lower court ’ s decision. It observed that the Convention formed an integral part of the Lithuanian legal system and that individuals could directly rely on its provisions before the national courts. Moreover, in the event of a conflict between the legal norms of the Convention and national laws, the Convention was to be given priority. The Supreme Administrative Court agreed with the lower court ’ s reasoning that the first applicant ’ s request for compensation for pecuniary and non-pecuniary damage sustained before 27 July 2004 (the date of the Strasbourg Court ’ s judgment in his case) had to be dismissed because an award had already been made by the Court and the applicant had been paid the sum of EUR 7,000. 21. Regarding the first applicant ’ s claim in respect of the damage allegedly suffered since then, on the basis of the Court ’ s judgment in Scozzari and Giunta v. Italy ([GC] nos. 39221/98 and 41963/98, § 249, ECHR 2000 ‑ VIII), the Supreme Administrative Court noted that States undertook to take general and, if appropriate, individual measures to be adopted in their domestic legal order to put an end to the violation found by the Court and to redress so far as possible its effects. The States were free to choose how to correct the breach of individual applicants ’ Convention rights, provided that the means chosen were compatible with the conclusions set out in the Court ’ s judgment. Restitutio in integrum was an important aspect of remedying the violation. 22. That being so, even though the legislator had an obligation to ensure legal certainty and to reconcile domestic law with the norms of the Convention, legislative amendment was not the only way to implement the Court ’ s judgment. The fact that the KGB Act had not been amended had not in itself breached the first applicant ’ s rights. A person ’ s rights could also be secured by administrative decisions and domestic court practices. Both the KGB Act and the Strasbourg Court ’ s judgment were in force in Lithuania. For the Supreme Administrative Court, in the event of a conflict between them, priority was to be given to the Court ’ s judgment. Consequently, even though the KGB Act was still in force, a refusal to employ the first applicant in the private sector based on the restrictions contained in the KGB Act would be unlawful. Accordingly, the protection of a person ’ s rights through the direct application of the Court ’ s judgment and before any legislative amendments had been adopted was to be considered proper execution of the Court ’ s judgment. 23. Regarding the facts of the case, the Supreme Administrative Court noted that the first applicant had attempted to obtain employment in the private sector. It observed that on 21 February 2007 the Šiauliai Employment Office had issued him with a document certifying that he had been registered as a job seeker since 14 June 1999 and had not been employed because of the restrictions applied to him (see paragraph 17 above). The appellate court noted that in response to its request to explain the reasons for the first applicant ’ s unemployment in more detail, on 28 December 2007 the Šiauliai Employment Office had provided the appellate court with another document stating that on 14 June 1999 an individual plan for the first applicant ’ s employment had been prepared with a view to employing him as a lawyer (in-house lawyer; juriskonsultas ), because he had more than ten years ’ work experience in different companies and institutions in the city of Šiauliai. From 1999 to 2004, more than thirty posts for in-house lawyers had been created in Šiauliai, for which a university degree in law was required and the salary was just higher than minimal salary. The advertisements for those posts had been shown to the first applicant, but he had not been given any of those jobs because the employers considered that he lacked the relevant qualifications. The Šiauliai Employment Office could therefore no longer offer the first applicant other in-house lawyer posts. To increase his chances of finding a job, at the end of 2003 the first applicant had attended computer literacy courses and courses for professional training in the field of administrative work. In 2004 a new individual plan had been compiled together with the first applicant, so that, because he so wished, he could obtain the job of business manager ( komercijos vadybininkas ). The Šiauliai Employment Office then named six companies which refused the first applicant the job of business manager, administrator and sales manager because other candidates had been chosen or because he lacked knowledge of the English language. 24. The Supreme Administrative Court observed that those two documents were contradictory. The court deemed it proper to rely on the report of 28 December 2007 as it was more recent and, in the court ’ s opinion, more comprehensive and explanatory. It concluded that the restrictions which the KGB Act imposed on a person ’ s ability to find employment in certain areas of the private sector had not been applied to the first applicant. The existence of the KGB Act, as such, had not violated his rights and did not entitle him to compensation. The Supreme Administrative Court determined that there was no proof that, after the Court ’ s judgment of 27 July 2004, the first applicant had been prevented from obtaining a private sector job because of the restrictions related to the KGB Act. Furthermore, he had not provided any particular information as to who had refused to employ him on the basis of those restrictions and when. It followed that the first applicant had not managed to secure a job because of the local labour-market situation. Moreover, there was no information that he had attempted to find a job in another manner, that is to say not only relying on the assistance of the Šiauliai Employment Office, but had been refused a job because of the legislative restrictions. To give rise to a violation of the Convention, a breach of a person ’ s rights had to be real, and not hypothetical. Given that there was no proof that after the Court ’ s judgment of 27 July 2004 the first applicant could not obtain a job because the KGB Act remained unchanged, and having concluded that his right to work in the private sector could no longer be restricted because of the direct applicability of the Convention, the first applicant ’ s claim for damages had to be dismissed. 25. On 18 April 2008, four days after the Supreme Administrative Court ’ s final decision in his case, the Šiauliai Employment Office suggested that the first applicant contact two specific private companies for a post as a business manager. On 6 May 2008 the first applicant came back to the Šiauliai Employment Office and stated that he had not taken the business manager ’ s job in one of those companies because he did not like the conditions offered. He planned to take part in the interview for the business manager ’ s job in the other company. Later in 2008 the first applicant was refused positions of business manager, insurance consultant and other jobs a number of times because he lacked foreign language skills, qualifications, or the relevant work experience. As it transpires from the documents in the Court ’ s possession, he turned other jobs down simply because he deemed that the salary offered was too low or the work place too far away. On 23 December 2008 the first applicant was appointed as a carer for his mother ( paskirtas motinos rūpintoju ). The Šiauliai Employment Office therefore discontinued its assistance to him. B. The second applicant 26. The second applicant, Mr Kęstutis Džiautas, was born in 1962 and lives in Vilnius. 27. On an unspecified date in the 1980s, he graduated from Vilnius University as a lawyer. From 11 February 1991 he worked as a prosecutor. 28. On 26 May 1999 the Lithuanian authorities concluded that, from 1985 to 1991, the second applicant had been an employee of the Lithuanian branch of the KGB and that he was therefore subject to the restrictions provided for by Article 2 of the KGB Act. As a result, on 31 May 1999 he was dismissed from his job as prosecutor. 29. The second applicant brought an administrative action against the authorities, claiming that his dismissal under the KGB Act, which made it impossible for him to find employment, was unlawful. The domestic courts dismissed his claims (see Sidabras and Džiautas, cited above, §§ 20-23 ). 30. On 5 July 2000 the second applicant lodged an application with the Court. Like the first applicant, he alleged that Articles 8 and 14 of the Convention had been violated. 31. By a judgment of 27 July 2004 in Sidabras and Džiautas v. Lithuania (cited above), the Court found a violation of Article 14 taken in conjunction with Article 8 of the Convention and awarded the second applicant EUR 7,000 in respect of pecuniary and non-pecuniary damage and costs. 32. On 5 January 2005 the second applicant wrote to the Chairman of the Human Rights Committee of the Lithuanian Parliament, the Prime Minister and the Minister of Justice to enquire whether the State intended to amend the KGB Act and, if so, when. At the same time, he acknowledged that the Lithuanian authorities had already paid him a sum of money awarded to him by the Court. 33. On 11 January 2005 the Government Agent before the Court informed the second applicant that the Ministry of Justice was working on amendments to the KGB Act. On 26 February 2005 the Chairman of the Human Rights Committee of the Seimas informed the second applicant that the Seimas had set up a working group that was also drafting legislative amendments. 34. According to the Government, as of 29 March 2006 the second applicant was registered in the list of trainee lawyers ( advokato padėjėjas ), which is a precondition to becoming a lawyer. The Government also noted that the second applicant had submitted his traineeship report on 14 May 2009 and was going to take the Bar exam. 35. On 20 October 2006 the second applicant sued the Republic of Lithuania for non-pecuniary damage. He claimed to have lost LTL 100,000 as a result of the State ’ s failure, since 27 July 2004 (the date of the Court ’ s judgment in his case), to amend the KGB Act. This in turn had restricted his prospects of finding employment in certain private sector areas. He argued that the common principles governing the execution of the Court ’ s judgments required the State to execute the judgment without undue delay. 36. On 12 February 2007 the Vilnius Regional Administrative Court dismissed the second applicant ’ s claim. It noted that the judgment in the Sidabras and Džiautas case did not oblige the State to amend the KGB Act within a specific time-frame and that the Seimas was in the process of discussing the relevant legislative amendments. During the court hearing the second applicant submitted that he had contacted an insurance company and a commercial bank in order to check what the reaction of potential employers would be. He maintained that those employers had replied that they would be unable to employ him because to do so would breach the KGB Act. The first-instance court, however, noted that the second applicant had not provided any evidence to prove that he had actually applied for and been refused any particular job in the private sector. Accordingly, the court had no basis on which to hold that the second applicant had in reality addressed those two employers and that they had refused to hire him. 37. The second applicant appealed. He pointed out in particular that he had not attempted to obtain employment in the private sector so as not to harm the employers, who would have faced administrative liability if they had employed him. That was the reason why he had no proof of having actually attempted to obtain a job barred to him by the KGB Act. 38. On 18 April 2008 the Supreme Administrative Court dismissed the second applicant ’ s appeal. Its reasoning was similar to that of its decision of 14 April 2008 in the first applicant ’ s case (see paragraphs 20-22 above). It observed that the second applicant had based his claims for damages on the alleged non-execution of the Court ’ s judgment of 27 July 2004. However, referring to the cases of Scozzari and Giunta (cited above, § 249) and Vermeire v. Belgium (29 November 1991, § 26, Series A no. 214 - C), it observed that under Article 46 of the Convention, Contracting States were free to choose the appropriate individual and general measures to discharge their legal obligation to execute the Court ’ s decisions, albeit monitored by the Committee of Ministers. Moreover, given the abstract nature of the Convention norms, the domestic courts should follow the Strasbourg Court ’ s jurisprudence in order better to comprehend their content. 39. As to the facts of the second applicant ’ s case, the Supreme Administrative Court observed that, because the Court ’ s judgment in Sidabras and Džiautas prevailed over the KGB Act, the restrictions on working in certain private sector areas could no longer be imposed on the second applicant. Thus, even though the KGB Act had not been amended, a refusal to employ him on the basis of the restrictions provided for in the KGB Act would be in violation of the Convention and consequently unlawful. It was also the court ’ s view that protecting a person ’ s rights by direct application of the Court ’ s judgments rather than by legislative amendments was an appropriate way to execute those judgments. It followed that, because of the direct applicability of the Convention and the Court ’ s judgments, the State had not failed to act, the latter being a precondition for the State ’ s civil liability. 40. As to the second applicant, he had failed to prove that, after the Court ’ s judgment of 27 July 2004, he had attempted to obtain employment in the private sector and had been refused owing to the restrictions of the KGB Act. The Supreme Administrative Court stressed that “the mere existence of contradictions and ambiguities in the legal system did not in itself provide grounds for a violation of a person ’ s rights and did not harm that person”. Similarly, a mere hypothetical violation and a person ’ s idea that his rights had been breached, without any tangible facts, were not sufficient. The Supreme Administrative Court therefore dismissed the second applicant ’ s claim in respect of non-pecuniary damage. C. The third applicant 41. The third applicant, Mr Raimundas Rainys, was born in 1949 and lives in Vilnius. 42. From 1975 to October 1991 he was an employee of the Lithuanian branch of the KGB. Thereafter he found employment as a lawyer in a private telecommunications company, Omnitel. 43. On 17 February 2000 the State Security Department informed Omnitel that the third applicant had been a KGB officer and was therefore subject to the restrictions provided for by Article 2 of the KGB Act. As a result, on 23 February 2000 Omnitel dismissed the third applicant from his job. 44. After unsuccessful litigation before the Lithuanian courts for reinstatement in his job and for unpaid salary (see Rainys and Gasparavičius, cited above, §§ 11-13 ), the third applicant lodged an application with the Court, alleging that he had lost his job and that his employment prospects had been restricted as a result of the application to him of the KGB Act, in breach of Articles 8 and 14 of the Convention. 45. In its judgment in the case of Rainys and Gasparavičius (cited above, § 36) the Court held that the third applicant ’ s inability to pursue his former profession as a lawyer in a private telecommunications company, and his continuing inability to find private-sector employment because of his “former permanent KGB employee” status under the KGB Act, constituted a disproportionate and thus discriminatory measure, despite the legitimacy of the aims pursued. The Court concluded that there had been a violation of Article 14 taken in conjunction with Article 8 of the Convention. 46. By a letter of 15 July 2005, the Court informed the Lithuanian Government that, as no request had been made under Article 43 of the Convention for the above-mentioned cases to be referred to the Grand Chamber, the judgment of 7 April 2005 had become final on 7 July 2005, in accordance with Article 44 § 2 of the Convention. 47. On 25 July 2005 the third applicant requested that the Supreme Administrative Court reopen the proceedings in his earlier case for unlawful actions and reinstatement in his job at Omnitel, on the basis of Article 153 § 2 (1) of the Law on Administrative Court Proceedings (see paragraph 65 below). 48. On 23 February 2006 the Supreme Administrative Court noted that the proceedings in the domestic courts related to the dismissal of the third applicant from his position as a lawyer with a telecommunications company. It observed that the Court ’ s judgment gave reason to doubt the lawfulness of those domestic decisions. It therefore decided to reopen the proceedings which the third applicant had previously instituted against the State Security Department and his previous employer, the private telecommunications company, Omnitel. For reasons of jurisdiction, the case was subsequently remitted to the Vilnius Regional Court, a court of general jurisdiction, for a fresh examination. 49. On 10 July 2007 the Vilnius Regional Court acknowledged that the third applicant had been dismissed from his previous job at Omnitel unlawfully. As to the question of his reinstatement, the court relied on Article 297 § 4 of the Labour Code (see paragraph 67 below) and noted that more than seven years had elapsed since the telecommunications company had dismissed the third applicant from his job. During that time the third applicant had worked in companies specialising in other fields, such as railways and television. Moreover, the activities of the telecommunications company had also evolved. In the court ’ s view, because he lacked appropriate qualifications and foreign language skills, after such a long time the third applicant would no longer be competent to work as a lawyer in that company. The court also noted that at that time the third applicant was working in another company, without specifying what that company was, and therefore had a source of income. The Regional Court also noted the continuing conflict between the third applicant and the company, which could be another reason not to reinstate him to his former job at Omnitel. Lastly, the court observed that the KGB Act was still in force. In the court ’ s view, should the third applicant be reinstated, the question of his dismissal could arise de novo, or his employer would face the risk of administrative penalties. In the light of those circumstances, the court dismissed the third applicant ’ s claim for reinstatement. 50. The court then turned to the issue of compensation for lost earnings for the period of 23 February 2000 to 23 March 2007, indicated by the third applicant, for which he requested the sum of LTL 136,464. However, it was to be noted that the Court had already awarded him more than LTL 120,000 for both past and future pecuniary loss. Moreover, after his dismissal from Omnitel, the third applicant had worked in different jobs and had received more than LTL 90,000 in salary. Under Lithuanian law, an employee could be awarded no more than three years ’ unpaid salary. In the third applicant ’ s case the salary in Omnitel would amount to LTL 145,440 (LTL 4,040 a month for thirty-six months). Accordingly, the two sums he had already received (LTL 120,000 and LTL 90,000) amounted to more than the award requested. Lastly, the third applicant had acknowledged that since his dismissal from Omnitel, he had continued to receive a pension from another State for his work in the KGB, ranging from LTL 500 to 800 a month. It followed that the claim for pecuniary damage had to be dismissed. 51. Both the third applicant and Omnitel appealed. At the hearing, the third applicant asked to be paid LTL 167,534 for lost earnings as compensation for the fact that he had still not been reinstated with Omnitel. 52. On 11 February 2008 the Court of Appeal rejected both appeals. It upheld the lower court ’ s conclusion that the third applicant had been dismissed from his previous job unlawfully. Moreover, the circumstances mentioned in Article 297 § 4 of the Labour Code existed. Accordingly, the third applicant could not be reinstated in his former job with Omnitel. The court added that “the laws that provide for the prohibition on former [USSR] KGB employees from working in the telecommunications sector are still in force, so that if the [third] applicant were reinstated in his previous job, certain problems might arise”. Additionally, the applicant was working in another company and receiving a pension for his previous work with the KGB. He therefore had a source of income. The Court of Appeal also endorsed the lower court ’ s view that the third applicant had been compensated by the Strasbourg Court for the pecuniary damage he had suffered as a consequence of his unlawful dismissal. The sum he now asked for – LTL 167,534 – was lower than the awards of LTL 90,000 and 120,000 he had already received. 53. The third applicant lodged an appeal on points of law, reiterating his claim for reinstatement and for compensation for lost earnings. He argued that Article 42 § 1 of the Law on the Employment Contract was an imperative legal norm and meant that once the court found that an employee had been dismissed unlawfully, that employee was to be reinstated in his or her previous job. It followed that the argument of the Court of Appeal that “if the [third] applicant were reinstated to his previous job certain problems might arise” was arbitrary. 54. Omnitel argued that in 2000 it had dismissed the third applicant from his job merely following the letter of the KGB Act. Article 187 6 of the Code of Administrative Law Violations provided that an employer could be fined LTL 3,000 to 5,000 should he not comply with the KGB Act. This was all the more likely to happen since the Constitutional Court had recognised Article 2 of the KGB Act as constitutional in its ruling of 4 March 1999, that is before the third applicant was dismissed. Even though the Court had found a violation in the third applicant ’ s case, the KGB Act was still in force, and therefore the third applicant ’ s reinstatement was barred. Furthermore, in the judgment of 17 March 2005 the Court had not ordered Lithuania to amend the KGB Act. Nor had the Court ordered the Lithuanian courts to have the third applicant reinstated in his previous job. In his written reply to this last argument, the third applicant observed that the Republic of Lithuania, by not appealing against the Court ’ s judgment to the Grand Chamber, had shown its agreement with the interpretation and application of the Convention in the Rainys and Gasparavičius judgment. He therefore insisted that the Court ’ s judgment was sufficient legal basis for him to be reinstated in his former job at the private telecommunications company, Omnitel, notwithstanding the fact that Article 2 of the KGB Act had not been amended. 55. Lastly, Omnitel maintained that the lower courts had been correct in referring to other circumstances why the third applicant could not be reinstated on the basis of Article 297 § 4 of the Law on the Employment Contract, namely, for economic, technological and organisational reasons, and the fact that it could lead to unfavourable conditions for him (see paragraph 49 above). 56. On 20 June 2008 the Supreme Court held: “The European Convention on Human Rights is an international agreement, ratified by the Seimas. It is therefore an integral part of the legal system of the Republic of Lithuania... The European Court of Human Rights was established to guarantee the observance of the rights and fundamental freedoms guaranteed by the Convention. In ratifying the Convention, the Republic of Lithuania took an undertaking to execute the Court ’ s final judgments in every case in which it is a party. The Convention norms must be implemented in reality ( Konvencijos normos turi būti realiai įgyvendinamos ). The State itself establishes the manner in which it will ensure implementation of the Convention norms. One such method is the reopening of proceedings, provided for in Article 366 § 1 of the Code of Civil Procedure. Namely, a case which had been terminated by a final court decision may be reopened if the Court finds that the Lithuanian courts ’ decisions are in conflict ( prieštarauja ) with the Convention or its Protocols, to which Lithuania is a party.” 57. As to the facts of the case, the Supreme Court noted that the third applicant had worked as a lawyer at Omnitel and had been dismissed on 23 February 2000 because of the restrictions provided for in Article 2 of the KGB Act. As the Constitutional Court had held on 4 March 1999, those restrictions were compatible with the Constitution. 58. The Supreme Court nevertheless observed that on 7 April 2005 the Court had found that the third applicant had lost his job as a lawyer in the private telecommunications company on the basis of the application of the KGB Act which the Court had found to be discriminatory, in breach of Article 14 of the Convention, taken in conjunction with Article 8. The Court had also held that the third applicant ’ s inability to pursue his former profession and his continuing inability to find private sector employment because of his “former KGB officer” status under the Act constituted a disproportionate and thus discriminatory measure, even having regard to the legitimacy of the aims sought (paragraphs 36 and 45 of the Court ’ s judgment). The Supreme Court then held: “Accordingly, even though the KGB Act, which was the basis for dismissing the third applicant from his job, is in force and even acknowledged as being in conformity with the Lithuanian Constitution, the dismissal from his job on the basis of that Act in essence had been recognised as unlawful by the Court ’ s judgment, that is to say a violation of Article 14 of the Convention, taken in conjunction with Article 8, had been found. This circumstance is not to be questioned when resolving the dispute in the domestic court. Despite the fact that there was no fault in the actions of [the State Security Department or Omnitel ], which were implementing the obligations stemming from the KGB Act, the undertaking to implement the provisions of the Convention constituted a legal ground for the courts of the first and appellate instances to conclude that the applicant ’ s dismissal was unlawful. It must be emphasised that the ground for such a decision is not the provisions of the Law on the Employment Contract or the Labour Code, which regulate the issue of reinstatement, but the provisions of the Convention and the judgment of the European Court of Human Rights. At the same time it must be emphasised that, while the KGB Act, the compatibility of which with the Constitution had already been verified ( kurio konstitucingumas jau buvo patikrintas ) is still in force, the question of reinstating the third applicant to his job may not be resolved favourably. In the circumstances of this case the recognition of the fact that he had been dismissed from his job unlawfully is sufficient satisfaction for him ( atleidimo iš darbo pripažinimas neteisėtu šios bylos aplinkybių kontekste yra ieškovui pakankama satisfakcija ).” 59. The Supreme Court noted that the third applicant had been awarded compensation by the Court for actual and future pecuniary damage. Given that he had been awarded EUR 35,000 [approximately LTL 120,000], the third applicant had already been fully compensated for the disproportionate and discriminatory measure – dismissal from his job at Omnitel. For the court of cassation, “there was no legal ground for repeatedly awarding compensation for the violation, which the Court had not found to be of a continuous nature ( pakartotinai priteisti žalos atlygimą už pažeidimą, kurio tęstinumo Europos Žmogaus Teisių Teismas savo sprendime nekonstatavo, nėra teisinio pagrindo )”. 60. The Supreme Court thus fully upheld the lower court ’ s decisions. It also observed that “in the context of the [third applicant ’ s] case, other arguments by the parties in the appeals on points of law had no legal relevance for the lawfulness of the lower courts ’ decisions”. D. Execution of the Court ’ s judgments of 27 July 2004 and 7 April 2005 61. On 9 February 2005 a working group of the Seimas was set up to prepare amendments to a number of laws, including Article 2 of the KGB Act. According to the documents submitted to the Court by the Government, as of January 2005, the Lithuanian Government submitted a number of reports to the Department for the Execution of Judgments of the Council of Europe, explaining individual and general measures regarding execution of the Court ’ s judgments in the applicants ’ cases. They noted, firstly, that the compensation awarded by the Court had been paid to the applicants. The Government also noted that the Court ’ s judgments and their translations into Lithuanian had been disseminated to the Lithuanian courts. 62. The Government considered that appropriate execution of the Court ’ s judgments required setting up legal regulation giving access to employment in the private sector for the former KGB employees, which was in compliance with the Convention requirements. In that connection they indicated that amendments to Article 2 of the KGB Act had been registered in the Seimas and had been presented to its plenary on 14 June 2005. They expected that the law would be amended at the beginning of the Seimas ’ autumn session of 2005. The Government also considered that the draft law amending Article 2 of the KGB Act would guarantee the balance between the aims sought and interference with the right to respect for private life. The legislative amendments would also provide appropriate safeguards for avoiding discrimination as well as adequate judicial supervision of the employment restrictions imposed by the KGB Act. In February 2007 the Government informed the Department for the Execution of Judgments that the amendments to the KGB Act had been presented to the Seimas on 16 January 2007. However, voting in Parliament had failed because the necessary quorum had not been reached. They reiterated their previous statement about the importance of having the KGB Act amended and expected that the relevant amendments would be adopted in the spring of 2008. In October 2007 the Government wrote to the Department for the Execution of Judgments that a draft new law, amending the KGB Act in its entirety (not only its Article 2), was included in the Seimas ’ working programme for the autumn session. In September 2008 the Government informed the Department for the Execution of Judgments that the KGB Act had still not been amended and, to their regret, would most likely not be amended until the Seimas ’ elections in October 2008. However, a number of specific laws, for example, those regulating the professions of lawyers, bailiffs and notaries, had been amended, so that they no longer banned former KGB employees from taking up those professions. The Government also suggested that the judgments of the Court were directly applicable in the Lithuanian legal system. Therefore, the fact that the KGB Act had not been rectified had no legal consequences for former KGB employees as regards their opportunities to obtain employment in the private sector. By a letter of 22 January 2009, the Government informed the Department for the Execution of Judgments that as of 1 January of that year, even formal restrictions enshrined in the KGB Act had ceased to be valid. 63. The KGB Act was never amended and is still a valid law. | The three applicants, formerly a tax inspector, a prosecutor and a lawyer in a private telecommunications company, complained about Lithuania’s failure to repeal legislation (“the KGB Act”) banning former KGB employees from working in certain spheres of the private sector, despite judgments of the European Court of Human Rights in their favour in 2004 and 2005 (see above). |
540 | Police brutality | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are all Roma who live in Vâlcele. A. The police raid of 15 December 2011 1. The applicants ’ version 6. At around 5 a.m. on the morning of 15 December 2011 several police officers and gendarmes, together with the local forest ranger – all wearing special intervention clothing – knocked on the applicants ’ door, claiming to be their neighbours. As the applicants hesitated, they broke down the unlocked front door and entered by force. Upon entering the applicants ’ home, the forest ranger placed a balaclava on his head. The police officers also wore balaclavas. 7. In the first room the police found the fourth applicant (Ms Elena Lingurar), her daughter ( the second applicant, Ms Ana Maria Lingurar) and her daughter- in - law with a seven-month-old baby in her arms. The police dragged the two applicants out of their beds and started hitting them. The fourth applicant was hit on her collar bone with a police truncheon. When the second applicant asked the police why they were beating her mother, she was hit in the mouth and then forced to wash her face to remove the traces of blood. 8. When the police entered the next room they found the third applicant (Mr Aron Lingurar, born in 1985) with his wife. They dragged him onto the ground, kicked him and shouted abuse. The first applicant (Mr Aron Lingurar, born in 1949) was also taken into that room. He had also been beaten by the police. 9. Without allowing them to put any clothes on, the police took the first and third applicants out into the yard, pushed them onto the ground and hit them. They then put them in a police car, where the violence continued. The fourth applicant was not allowed to approach them or take them clothes. 10. The first and third applicants were taken to a police station, where they gave their statements. They were fined and sent back home. 2. The Government ’ s version 11. On 12 December 201 1 a forest ranger informed the Araci police that on 7 December 2011 the first applicant had taken home timber which had been illegally cut from the forest. When confronted by forest rangers, the first applicant had become aggressive. The forest ranger explained that the first applicant had exhibited a hostile attitude towards the forest rangers ever since his son, the third applicant, had been fined by the police, in spring 2011. He submitted that the first applicant had set a bad example for his community: “We consider that Mr Lingurar Aron, who sees himself as being the leader of the Roma in Vâlcele, by his attitude, instead of helping us solve the problems connected with the Roma community in Vâlcele – which in fact is more peaceful and hard - working than the community in Araci – creates more problems with the example he sets for the others.” 12. In this context, and in order to reduce and prevent the criminal activity, to strengthen citizens ’ safety, to identify individuals without identity documents, to summon those suspected of having committed several crimes and to recover stolen goods, the police organised the raid of 15 December 2011. 13. On 14 December 2011 the Covasna Inspectorate of Police ( Inspectoratul de Poliție Județean Covasna; hereinafter “ the IPJ”) drafted an intervention plan with a view to carrying out a raid in the villages in the municipality of Vâlcele. Describing the population of the applicants ’ village, the plan stated that out of 4,311 inhabitants, 826 had been released on parole, 432 had a criminal record, and 600 had been found guilty of violent crimes. The general context was described as follows: “The Vâlcele municipality consists of the villages Vâlcele, Araci, Hetea, and Ariuşd. Out of a total population of 4,300 inhabitants, 2,902 are of Roma ethnicity. Most of the members of this ethnicity do not have a steady income and make ends meet from social benefits, the sale of timber stolen from the forest, seasonal and occasional work, and from crime – mostly thefts. ... Of the individuals having committed crimes in 2011, it appears that 80% are of Roma ethnicity, with a variety of offences. ... As a result of the preventive activity carried out by the [IPJ] in Araci village, six criminal groups have been identified, made up of members of Roma families R., B., C., G., L., and N. [nb: the applicants ’ family is not mentioned among them]” 14. Given the range of issues to be tackled and the goals of the raid, the intervention involved: fifty-three police officers ( eleven from the department for public order, four from the department for criminal investigations, eighteen from the Sfântu Gheorghe police department, six from Vâlcele police station, ten from the Rapid Intervention Squad ( Serviciul de Intervenție Rapidă; “SIR”), and two from the department for criminal forensics) and thirty gendarmes from the Covasna Gendarmerie Inspectorate ( Inspectoratul Județean de Jandarmi Covasna; hereinafter “ the IJJ”). They had thirteen cars at their disposal. 15. According to the police report of 15 December 2011, the police officers performed the following acts during the raid: they searched 140 cars and performed 190 identity checks; they issued eight administrative fines ( sancţiuni contravenţionale ); they confiscated fifteen cubic metres of timber; they took sixty-four individuals to the police headquarters for further criminal enquiries; they solved six criminal complaints and enforced two orders to appear ( mandat de aducere ); they identified ten individuals from police operational information; and they took fingerprints from and photographs of fourteen individuals. 16. The police officers approached the applicants ’ home after 6 a.m. and knocked on the door. When two women (the second and fourth applicants) exited the house, the police asked them to call the third applicant, who was wanted for questioning regarding several criminal acts. The third applicant came out of the house, shouted abuse at the police officers and became physically violent. At that point the police immobilised and handcuffed him, and took him to one of the police cars. The first applicant then came out of the house shouting abuse at the police officers. For safety reasons, they handcuffed him and took him to the same police car where the third applicant was waiting. The second and fourth applicants were presumably injured in the process, as they tried to oppose the police actions. They pulled their own hair, slapped themselves on their faces, hit the gate with their fists and shouted, in order to intimidate the police officers. B. Medical reports 17. On 15 and 16 December 2011 the applicants were examined in the emergency ward of the local hospital. Subsequently, they also underwent a forensic examination. 18. The forensic report delivered on 15 December 2011 states that the second applicant had dried blood on her lips and left cheek, but no bruises or dental pain. The reason for the bleeding could not be established. She refused to undergo further medical examinations. The conclusion of the report was that she did not present any traumatic lesions but that a trauma caused by an act of aggression could not be excluded. 19. On 20 December 2011 a forensic medical report was drawn up for the first applicant. It stated that he had complained of chest pain and had two bruises on his chest. An X ‑ ray examination performed on the same day had not revealed any further damage. It was concluded that the trauma could have been caused by being hit with a hard object and that on account of the injuries, the first applicant needed one to two days of medical care. 20. On 20 December 2011 a forensic medical report was drawn up for the third applicant. The presence of bruises on the right eye, chest and right arm were recorded. The examiner concluded that the injuries could have been caused by a blow with a baseball bat and that the third applicant needed four to five days of medical care. 21. On 21 December 2011 a forensic medical report was drawn up for the fourth applicant. She complained of abdominal and chest pains and had a bruise on her lower chest. It was concluded that her injuries could have been caused by being hit with a hard object and that she needed one to two days of medical care. C. Criminal prosecution 1. Prosecutor ’ s decision of 11 March 2013 22. On 20 February 2012 the applicants lodged a criminal complaint against the forest ranger and the police officers on duty on 15 December 2011. They accused the officials of beating them and committing other acts of violence. 23. The case was investigated by the IPJ under the supervision of the prosecutor ’ s office attached to the Braşov Court of Appeal. Thirteen police officers and three gendarmes were put under investigation. The prosecutor interviewed the applicants and the police officers and gendarmes, as well as three witnesses. The witnesses were the applicants ’ neighbours who had been present during the incidents. The applicants had proposed that they be questioned. 24. The prosecutor established that the operation had been organised in accordance with the intervention plan drawn up by the IPJ and the IJJ. The assignment had been to take to the Vâlcele police station several individuals needed for questioning concerning several criminal complaints linked to various criminal investigations. 25. Relying on the statements given by the forest ranger and the police, the prosecutor established that the forest ranger had not participated in the events, and that the raid had started at 7 a.m. and not at 5 a.m. as indicated by the applicants and their neighbours. 26. The gendarmes denied having committed acts of violence or having seen traces of injuries on the applicants. Police officer P.A. explained that the use of force and the handcuffing had been necessary because of the applicants ’ violent behaviour. Concretely, the first applicant had opposed the police intervention, claiming that he was a local counsellor for Roma matters, and had shouted abuse and threats at the police. 27. On 6 July 2012 the investigators examined the applicants ’ front door. They noted that some of its window panels had been broken, the wood had been splintered, and the paint was missing from the bottom of the door; they were unable to establish when the door had been damaged. 28. On 11 March 2013 the prosecutor concluded that there was not enough evidence to institute proceedings against the police officers. 2. Prosecutor ’ s decision of 17 April 2013 29. The applicants objected to the prosecutor ’ s decision. They argued mainly that the prosecutor, without justification, had given preference to the statements made by the police to the detriment of those made by the applicants. They also averred that the investigation had failed to provide an explanation for the violence perpetrated against them. They stressed that it was the established and frequent practice of the police in the area to attack members of the Roma community without any justification. 30. On 17 April 2013 the prosecutor-in-chief from the prosecutor ’ s office attached to the Braşov Court of Appeal dismissed the objection on the following grounds: - the intervention had been lawful; - the applicants ’ immobilisation and the use of handcuffs had been lawful and made necessary by their aggressive behaviour; they had therefore been taken to the police station, interviewed and fined; - the investigation had been completed; - the prosecutor had clarified all aspects of the case and examined the evidence gathered; - the decision had represented the prosecutor ’ s own conviction based on the evidence in the file, and the reasons given had been adequate; - the other assertions made by the applicants had not been substantiated by evidence. 3. Court ’ s decision of 23 May 2013 31. The applicants challenged the prosecutors ’ decisions, reiterating the arguments put forward in their objection (see paragraph 29 above). 32. The Braşov Court of Appeal heard the case and in a decision of 23 May 2013 it sent the case back to the prosecutor ’ s office for further investigations. It mainly considered that the authorities had to provide justification for the injuries sustained by the applicants. The first and third applicants had been taken to the police station, and had thus been under police control for a few hours. The second and fourth applicants had sustained injuries which the prosecutor had failed to explain. 33. The court further noted that the prosecutor had not identified the person who had given the order to immobilise the first and third applicants and take them to the police station. Both the gendarmes and the police officers involved had denied having immobilised the applicants. 34. The court went on to question the lawfulness of the police intervention. It noted that at that time the applicants had not been the subject of any criminal investigation and that no order to appear before the police had been issued in their names. It further noted that the second and fourth applicants had not even been arrested. 35. The court concluded that the criminal investigation had not been exhaustive. It therefore ordered the prosecutor: - to hear evidence from witnesses, in particular from other persons who had been targeted by that police intervention and neighbours who could clarify whether the police officers had entered the applicants ’ home; - to hear the police officers involved in the operation and those responsible for mounting the operation, in order to find out who had given the order to immobilise the first and third applicants and who had carried out that order; - to establish how the immobilisation of the first and third applicants had happened; - to establish how the second and fourth applicants, who had not been immobilised by the police, had been injured; - to establish who had participated in the operation on behalf of the authorities, whether police officers, gendarmes or other individuals. 4. New investigation 36. A new investigation was carried out under the supervision of the same prosecutor from the prosecutor ’ s office attached to the Braşov Court of Appeal. 37. On 24 July 2013 the IPJ drafted a report on the investigation, confirming the previous findings concerning the use of force and the applicants ’ conduct. The injuries sustained by the second and fourth applicants were explained in the report as follows : “ [The two women] had exhibited behaviour specific to Roma in such circumstances: they had started pulling their own hair, slapping themselves on their faces, hitting the gate with their fists and shouting in order to intimidate the police officers .” 38. On 5 August 2013 the prosecutor ’ s office decided not to prosecute. It considered that all the indications given by the court had been observed during the new investigation and that further clarifications concerning the case and the general situation in Vâlcele had been provided. 39. The prosecutor explained, in particular, that because of the problems with the Roma community in Vâlcele, the police and gendarmes had had to combine forces. He recalled that on 27 June 2013 a police officer had been injured and was currently in a critical state in hospital following a police intervention aimed at settling a conflict between two rival Roma clans. Likewise, on 15 July 2013 another police officer had had to open fire in self-defence against an individual who had broken the windscreen of a police car during a police intervention triggered by a distress call. The prosecutor noted that most of the inhabitants of Vâlcele, and in particular those from three villages (Hetea, Vâlcele and Araci), were known for breaking the law and were aggressive towards the police. The applicants ’ family members had been subject to investigations for the theft of wood or for disturbing public order. 40. The prosecutor held that the injuries sustained by the first and third applicants could be explained by the use of force during the immobilisation, which had been made necessary by the applicants ’ violent behaviour. The second and fourth applicants had been injured when they had attacked the police officers in order to prevent them from immobilising their family members. The prosecutor reiterated the explanation given in the police report about the behaviour allegedly exhibited by the second and fourth applicants. The identities of the four gendarmes who had executed the immobilisation were known, but had to be kept secret for their own protection. 41. The applicants objected to that decision, arguing that the prosecutor had failed to investigate whether the use of force had been proportionate and justified. They also complained of the use of stereotypes in respect of Roma in the prosecutor ’ s decision. 42. On 20 September 2013 the prosecutor-in-chief from the same prosecutor ’ s office upheld the decision on similar grounds to those given in the decision of 17 April 2013 (see paragraph 30 above) and, in addition, on the ground that the prosecutor had complied with the orders made by the court (see paragraph 35 above). 5. The court decision of 16 January 2014 43. The applicants complained about the prosecutors ’ decisions, reiterating their previous arguments. 44. On 16 January 2014 the Braşov Court of Appeal dismissed the applicants ’ complaint as unfounded. The decision was final. 45. The court considered that the prosecutor had respected the requirements set by the previous court decision (see paragraph 35 above). Additional witnesses who did not belong to the police or gendarmerie had been heard. It also considered that the evidence adduced could not prove beyond any reasonable doubt that the police officers had injured the applicants. The applicants ’ statements and the medical reports, which remained the only elements supporting that theory, were not sufficient to change the conclusion. According to the Court of Appeal, the explanations offered by the prosecutor as to the cause of injuries were plausible and the police officers had not used excessive force. The court also considered that the applicants had an obligation to identify the alleged perpetrators. Lastly, the court noted that the investigations had not been influenced by the fact that the applicants were Roma. | This case concerned a raid in 2011 by 85 police and gendarmes on the Roma community in Vâlcele (Romania). The applicant family complained that they had been ill-treated by the police, that the investigation into their allegations had been ineffective and that the authorities’ justification for the raid had been racist. |
140 | Sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1971 and lives in Helsinki. 6. The applicant and her partner began to cohabit in 2003. Their daughter was born in November 2004. In the spring of 2006 the applicant felt that, in her view, the child ’ s father was behaving strangely with the child and that the child did not want to stay at home alone with her father. She also started to fear for her own and her child ’ s safety as the father was, in her view, violent. In May 2006 the applicant and her daughter left the child ’ s father. A. First set of proceedings concerning custody and contact rights 7. In July 2006 the child ’ s father initiated custody and contact rights proceedings vis-à-vis his daughter. 8. In August 2006 the Kouvola District Court ( käräjäoikeus, tingsrätten ) gave an interim decision that the father was to meet his daughter for two hours every other weekend under supervision. This arrangement continued for about a year but was disrupted for some time in 2 007. According to the applicant, the child was often restless and talked strangely after the meetings with her father. 9. On 15 June 2007 the Kouvola District Court gave another interim decision according to which the father had a right to meet with his daughter for 2 to 4 hours at a time without supervision. 10. On 21 August 2007 the Kouvola District Court held an oral hearing about the custody and contact rights. 11. On 4 September 2007 the Kouvola District Court gave both parents joint custody of the child. She was to live with her mother and to meet her father every other weekend from Friday to Sunday and during the holidays, unsupervised. The meetings were, however, temporarily discontinued for the duration of the pre-trial investigation (see below). On 9 January 2008 the Kouvola Appeal Court upheld the District Court ’ s decision. B. First involvement of the child welfare authorities and the police 12. The applicant claimed that after the third unsupervised visit with the father in August 2007, her almost three-year-old daughter ’ s behaviour changed radically and she was showing strong symptoms. The child was using vulgar language and was restless and anxious. The child had told her mother about things that her father did to her. She kept repeating these issues and suffered from increasingly bad nightmares. The applicant contacted a child psychiatrist. On 16 August 2007 she contacted the child welfare authorities in Helsinki reporting her suspicions of sexual abuse. 13. On 29 August 2007 the child welfare authorities reported the matter to the police. They recommended that the meetings with the father be discontinued for the duration of the investigation. 14. On 5 September 2007 the pre-trial investigation conducted by the Helsinki Police Department commenced. Both parents were questioned. On 14 September 2007 the Forensic Child and Adolescent Psychiatry Centre received an official request for assistance from the Helsinki Police Department. At the time the child was two years and ten months old. The Centre replied that children under three years old could not be interviewed within the forensic-psychological interview framework as it was not possible to obtain reliable information on possible sexual abuse from children under three years of age, especially in situations involving custody disputes. Such interviews became effective only in respect of children aged four years or more. 15. On 20 September 2007 a physiological examination was carried out to determine whether the child showed any signs or symptoms of the alleged abuse, but no such external signs were revealed. The pre-trial investigation was concluded on 15 October 2007 as there was no appearance of any crime. 16. After having received information about the conclusion of the pre ‑ trial investigation, the applicant contacted the Forensic Child and Adolescent Psychiatry Centre on 18 October 2007 and expressed her surprise that no psychological assessment had been conducted in the matter. 17. In a telephone conversation of 19 October 2007 the applicant expressed to the social worker her fear that her child continued to be at risk of being subjected to sexual abuse when meeting her father and insisted on another investigation. She was concerned that the pre-trial investigation by the police had not been complete and that the social workers would be responsible if something happened to her child while the meetings with the father were not supervised. The social worker in turn explained to the applicant that the pre ‑ trial investigation had not brought to light any somatic signs or symptoms that would suggest sexual abuse of the child. Moreover, concerning the visiting rights, the social worker explained that the decision of 4 September 2007 by the Kouvola District Court was still in force and that if the applicant was not satisfied with it, she would have to appeal against it in courts of law instead of complaining about it to the child welfare authorities. However, the applicant insisted on making the second report to the child welfare authorities, claiming that she had been threatened with loss of her custody rights if she did not allow the meetings with the father. The father of the child received information about this report from the police. C. Further involvement of the child welfare authorities and the police 18. On 18 January 2008 the applicant submitted another child welfare report and the second report to the police, insisting on another investigation and stating that she suspected that someone was abusing her child during visits to the child ’ s father. She also reported the matter to the social workers in Helsinki. 19. On 25 and 28 January 2008 respectively the applicant took her daughter to an emergency clinic for examination as she had trouble sleeping and was behaving oddly. No somatic signs or symptoms of sexual abuse were found. 20. The Kouvola Police Department started to investigate the matter. As the applicant had taken the child to a doctor on 25 and 28 January 2008, no new physical examination was carried out. The pre - trial investigation was concluded on 4 May 2008 as there was no appearance of any crime. D. Administrative complaints 21. On 18 February 2008 the applicant lodged a complaint with the National Authority for Medico-legal Affairs ( Terveydenhuollon oikeusturvakeskus, Rättsskyddscentralen för hälsovården ) about the fact that the child had not been heard at all during the pre-trial investigation in autumn 2007. The case was transferred ex officio to the regional State Provincial Office ( lääninhallitus, länsstyrelsen ). 22. On 18 February 2008 the applicant also lodged a complaint with the Parliamentary Ombudsman ( eduskunnan oikeusasiamies, riksdagens justitieombudsman ), asking him to investigate why the police did not hear her child during the pre-trial investigation. 23. On 16 April 2008 the Parliamentary Ombudsman decided not to take any measures as the police investigation was still pending before the Kouvola Police (see paragraph 20 above). He did not have competence to give orders to the police concerning the investigation of the matter as he could not examine the actions of private individuals. 24. On 24 November 2008 the regional State Provincial Office found that there was no minimum age for hearing a child and that the three-year age ‑ limit for child psychiatric interviews was only a recommendation. The child had only been two years and ten months old at the time of the first police investigation. No new physical examination had been carried out during the second pre-trial investigation as such an examination had been carried out on 25 and 28 January 2008. The Office decided to take no action in the applicant ’ s case. E. Defamation proceedings 25. On an unspecified date, the father of the child asked the police to investigate whether the applicant had defamed him as she had given false information about him to the social worker on 19 October 2007, claiming that the child was in danger of being sexually abused by her father during their upcoming meetings (see paragraph 17 above). He claimed that these allegations were not true and that the applicant ’ s motive for such accusations was that she wanted to have sole custody of the child and hamper the meetings between the father and the child. 26. On 17 February 2009 the Public Prosecutor pressed charges against the applicant for having insisted on 19 October 2007 that the child was in danger of being sexually abused by her father after the police had already investigated the matter and, on 15 October 2007, found no appearance of any crime. 27. On 11 September 2009 the Helsinki District Court convicted the applicant of defamation and sentenced her to 45 day-fines, amounting to 630 euros (EUR). She was ordered to pay the father EUR 1,000 in non ‑ pecuniary compensation and his costs and expenses amounting to EUR 1,885.66. The court ’ s reasoning was the following: “ The insinuation made by M.P. and referred to in the charges cannot be understood to refer to any other person than [the father of the child] and it was made in a situation in which M.P. knew about the decision of the Helsinki Police Department to stop investigating the suspected sexual abuse of a child, which investigation had been initiated solely on the basis of the information submitted by her. According to the decision, the investigation did not reveal any such evidence on the basis of which the threshold of “ reason to suspect ” would have been attained. The decision refers to the somatic examination of the child, requested by the police and conducted on 20 September 2007 by a specialist in paediatrics at which M.P. was also present. According to the medical certificate, the girl ’ s somatic status was normal and there were no external signs of sexual abuse. From the medical certificate of 15 October 2008, which was admitted as written evidence, it appears that the meetings between the father and the child had been supervised until 16 June 2007 and that thereafter until the filing of the police report on 29 August 2007 and the freezing of the meetings, there had been unsupervised day meetings only three times, lasting four hours each. [The father of the child] stated that out of these few meetings one meeting had taken place in an amusement park, which was not disputed by M.P. M.P. stated that the sexually - coloured talk of the child had started already during the supervised visits. At that time the child was less than three years old. On the sole basis of the meeting circumstances and the medical examination, M.P. could not have had strong grounds to consider that her insinuation of the crime was true, even if the child had said what she was alleged to have said. Nor could the child ’ s other, more general symptoms have given sufficient confirmation of her insinuation. When assessing whether one is guilty of defamation, it is irrelevant that the act has been committed by pursuing an earlier report to child welfare authorities and that it has been made to a public official who is bound by confidentiality. Even in a child welfare report one must not give untruthful and smearing information or insinuations about others. M.P. must have understood that the insinuation was of such a kind that in any event it would come to the knowledge of [the child ’ s father] and that its content, being almost of the worst kind, was bound to cause him suffering. ... Ignorance of legal provisions does not eliminate the punishability of an act. Taking into account what has been said above about the circumstances of the case and the nature of the criminal insinuation, there is no basis for considering that M. P. ’ s act could be regarded as manifestly excusable due to a mistake. On the basis of the grounds expressed above, the District Court considers that M.P. did not have any such reasons to make an insinuation towards [the father of the child] that she would have had a reasoned ground to do so without defaming him. ” 28. By letter dated 12 October 2009 the applicant appealed against the judgment of the District Court to the Helsinki Appeal Court ( hovioikeus, hovrätten ). She claimed only to have voiced her previous concern as the child was not heard at all during the concluded pre-trial investigation. Her concerns were not directed at the father but at the fact that a danger to the child ’ s health still existed. It had been the child welfare authorities who had qualified these concerns as relating to sexual abuse. Sexual abuse did not always leave physical marks which could be revealed by medical examination but it was a grave procedural mistake not to interview the child during the pre - trial investigation. She considered this mistake to be so substantial that the danger to her child ’ s health still existed despite the outcome of the investigation. She also referred to the case Juppala v. Finland, no. 18620/03, 2 December 2008. 29. On 5 January 2011, after having held an oral hearing, the Helsinki Appeal Court upheld the District Court judgment. The court found the following: “ On the basis of the oral hearing held, the Appeal Court has no reason to assess the evidence differently than the District Court. The acts committed by M.P. [ ... ] fulfil the constituent elements of defamation, criminalised by Chapter 24, section 9, of the Penal Code. The fact that the insinuation was made to a public official who is bound by confidentiality is not relevant when assessing the constituent elements, as appears from the Supreme Court precedent 2006:10. M.P. [ ... ] did not have sufficiently strong grounds to hold the information true in a situation where [she] knew that the pre- trial investigation into [the child ’ s father] had terminated. Although child protection considerations have to be taken into account, a conviction in these circumstances is not in contradiction with freedom of expression which is protected as a fundamental and human right. M.P. has considered that she is free from criminal liability under Chapter 4, section 2, of the Penal Code due to a mistake as to the unlawfulness of her act as she had mistakenly regarded her act as lawful because of a reason similar to erroneous advice given by public officials. The pre ‑ trial investigation had, however, been started solely on the basis of information given by M.P. and this investigation was already terminated, M.P. being aware of it, before the commission of the present act. Therefore there are no grounds to apply the provision concerning mistake as to the unlawfulness of the act. Nor is there any reason to change the District Court judgment as far as the conviction is concerned.” 30. By letter dated 7 March 2011 the applicant appealed to the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds of appeal already presented before the Appeal Court. 31. On 14 December 2011 the Supreme Court refused the applicant leave to appeal. F. Second set of proceedings concerning custody and contact rights 32. On 18 March 2010 the father of the child requested the Helsinki District Court to order that the child live with him. 33. On 25 January 2011 the Helsinki District Court ordered that the child was to live with her father in Kouvola. This decision was upheld by the Helsinki Appeal Court on 2 December 2011. On 11 May 2012 the Supreme Court refused the applicant leave to appeal. 34. The applicant has complained to the Court about these proceedings in a separate application (see application no. 71785/12 M.P. and E.B. v. Finland ) which was declared inadmissible on 17 April 2014. G. Most recent administrative appeals 35. On an unspecified date the applicant asked the Ministry of the Interior ( sisäasiainministeriö, inrikesministeriet ) to investigate whether the decision not to hear the child was acceptable. On 7 May 2012 the Ministry of the Interior transferred the matter to the National Police Board ( Poliisihallitus, Polisstyrelsen ). 36. On 3 August 2012 the National Police Board found that police conduct in the matter had been appropriate. The police had conducted an adequate pre - trial investigation without leaving any issues unclarified. | This case concerned the applicant’s conviction for defamation for expressing concerns to a social worker that her daughter might have been sexually abused by her (the child’s) father. This was the second time the applicant had raised such concerns and came after a police investigation into the allegations had concluded that there was no evidence of any crime. |
448 | Other applications of interim measures | I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant was born in 1981 and died on 2 August 2008. The second applicant was born in 1955 and lives in the town of Zuya in Crimea. A. Background information 7. On 30 September 2005 the first applicant tested HIV positive. 8. On 2 February 2006 the Centre for the Prevention and Combating of Aids in Crimea (“the Aids Centre”) informed him of the test results and invited him to register for medical monitoring. The first applicant did not, however, follow the advice (see also paragraphs 21 and 59 below). B. Criminal proceedings against the first applicant and his medical treatment in detention 9. On 20 November 2007 the first applicant was arrested by the police on suspicion of having robbed an acquaintance of a mobile phone. According to the second applicant, on the same day her son informed the investigator about his HIV status and expressed the fear that his health might deteriorate in detention. This information was allegedly ignored. According to the Government, the first applicant did not disclose his HIV status. 10. The first applicant was placed in the Temporary Detention Facility of the Bakhchysaray Police Station (“the ITT”). The officer on duty examined him and reported that he had no visible injuries and had raised no complaints. 11. On 23 November 2007 the Bakhchysaray District Court (“the Bakhchysaray Court”) remanded the first applicant in custody pending trial. 12. On 30 November 2007 the first applicant was X-rayed in the local polyclinic; no lung pathology was revealed. 13. On 2 December 2007 he was taken from the ITT to Simferopol Pre-Trial Detention Centre no. 15 (“the SIZO”), where he was examined by a therapist (general practitioner), a dermatologist, a dentist and a psychiatrist. All found him to be in good health. According to the medical records, the first applicant did not have any health-related complaints and did not report any illnesses. His height and weight were recorded as 180 cm and 78 kg respectively. 14. The first applicant was detained in the SIZO from 2 to 28 December 2007, then subsequently from 10 January to 10 February 2008, and from 18 February to 2 June 2008. During the intervening periods, from 28 December 2007 to 10 January 2008, from 10 to 18 February, and from 2 to 20 June 2008, he was held in the ITT. 15. According to the records of his medical examinations of 10 January and 10 and 18 February 2008, he appeared to be in good health and did not raise any health-related complaints. 16. According to the SIZO medical register, on 28, 29 and 30 May 2008 the first applicant complained of nasal stuffiness, rhinitis, and a sore throat. The SIZO therapist diagnosed him with an “acute respiratory viral infection” and prescribed medication. 17. As to the intervening period between the aforementioned records of 18 February and 28 May 2008, no documents are available in the case file. The applicants submitted, however, that in early March 2008 the first applicant’s health had sharply deteriorated. He allegedly had a constant fever of 39-40ºC and suffered from serious digestive disorders. According to the applicants, the administration of the detention facilities called for an ambulance in that regard on many occasions. The nature of the ambulance interventions remained unclear. 18. On 31 May 2008 the first applicant was additionally examined by an infectious disease specialist at the SIZO, who issued a note stating the following. The first applicant had been complaining of experiencing fevers and losing weight for the preceding two months. The doctor recommended an HIV test, to which the first applicant agreed. The test was scheduled for 2 June 2008. However, it did not take place because of the first applicant’s transfer from the SIZO to the ITT (see paragraph 14 above). 19. On 2 June 2008, following another transfer from the SIZO to the ITT, the first applicant complained to the ITT medical attendant about feeling weak and having fever and back pain. The medical attendant administered some antipyretics to him. 20. On 3 June 2008 the first applicant was taken to the Central Hospital, where he was examined by a therapist and underwent ultrasound scans of his liver, gallbladder, pancreas, spleen and kidneys. The following tests were also carried out: chest X-ray, electrocardiogram, esophagogastroduodenoscopy, as well as general blood and urine analyses. The therapist diagnosed the applicant with an ulcer, gastrointestinal hemorrhage, haemorrhoids, chronic bronchitis, and suspected HIV infection. 21. On 4 June 2008 the Chief Doctor of the Aids Centre informed the second applicant, in reply to her enquiry of 3 June 2008, that her son had tested HIV positive on 30 September 2005, and had been informed of the result on 2 February 2006, but that he was not registered for monitoring in that Centre. 22. On 5 June 2008 the first applicant was again taken to the Central Hospital, this time for examination by an infectious disease specialist. According to a note issued by the doctor, the first applicant complained to him about suffering from stomach aches, mouth lesions, a skin rash, coughing, and shortness of breath. He also complained of having lost about 10 kg during the preceding three months. Having examined the first applicant, the doctor diagnosed him with pneumocystis pneumonia, oropharynx-esophagus candidiosis (thrush) and an ulcer. Moreover, he concluded that the symptoms disclosed HIV infection at the fourth clinical stage. While the doctor assessed the first applicant’s condition as being “moderately severe” and noted that he required medical treatment for the aforementioned conditions, a general conclusion was reached that there was no urgent need for hospitalisation. 23. The first applicant’s mother was informed of the diagnoses. She bought the prescribed medications, and the ITT medical attendant administered them to her son. 24. On 6 June 2008 the first applicant’s lawyer requested the Bakhchysaray Court to release his client on account of his critical state of health. He noted that the first applicant required urgent specialised medical treatment because he had HIV infection at the fourth clinical stage and concomitant oesophagal candidosis and pneumocystis pneumonia. The lawyer stated that the first applicant’s life hung in the balance and that in order to save it he needed to be at liberty so as be able to seek proper medical care. Moreover, the lawyer pointed out, his client had a permanent place of residence and he had neither absconded from the investigation nor hindered it in any way. Furthermore, given his desperate health condition he did not present any danger to society. 25. The Bakhchysaray Court rejected the above-mentioned request (this ruling is not available in the case file before the Court). 26. On 11 June 2008 the Bakhchysaray District Prosecutor’s Office instructed the local police department to take the first applicant to the Central Hospital for another examination with a view to clarifying whether his state of health was compatible with detention. 27. On 13 June 2008 the first applicant was taken to the Central Hospital, where he was again examined by an infectious disease specialist. The doctor reached a preliminary conclusion that the first applicant was suffering from HIV infection at the second clinical stage, which did not necessitate urgent hospitalisation. A further examination in the Aids Centre was recommended with a view to deciding on the necessary medical treatment. The doctor also made arrangements for the first applicant to have laboratory tests, such as blood and urine analyses and a sugar test, and a chest X-ray. 28. On 16 June 2008 the applicants requested the Court to indicate to the Ukrainian Government, under Rule 39 of the Rules of Court, that the first applicant should be hospitalised and treated as a matter of urgency given the serious deterioration of his health and the alleged lack of adequate medical treatment. 29. On 17 June 2008 the President of the Fifth Section decided to grant that request and to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the first applicant “should be transferred immediately to a hospital or other medical institution where he [could] receive the appropriate treatment for his medical condition until further notice.” On the same day (Tuesday, a working day) a fax message was sent to the Government informing them of this decision. 30. On 18 June 2008 the first applicant’s lawyer once again requested the Bakhchysaray Court to release his client. He reiterated that the first applicant’s life was in danger. The lawyer also referred to the aforementioned decision of the Court regarding the application of Rule 39 of the Rules of Court in the first applicant’s case. 31. On the same date, 18 June 2008, following another enquiry by the Bakhchysaray police about the need for the first applicant’s hospitalisation, the Chief Doctor of the Infectious Diseases Department of the Central Hospital stated that the first applicant did not require urgent hospitalisation. 32. As a result, the Bakhchysaray Court rejected the first applicant’s request for release submitted earlier that day. 33. On 18 June 2008 the second applicant complained to the Chief Doctor of the Central Hospital about the alleged failure of its staff to provide her son with adequate medical assistance in spite of the applications she had made in that regard on 4 and 5 June, as well as twice on 13 June 2008. She insisted that his life was in danger. According to the second applicant, her son had never undergone a complete medical examination. She considered that the doctors were avoiding treating him because he was, firstly, HIV-positive and, secondly, a detainee. 34. On 20 June 2008 the first applicant was taken to the Aids Centre, where the following diagnoses, classified as preliminary, were established: HIV infection at the fourth clinical stage, systemic candidosis of the oropharynx and oesophagus, continuous fever with expressed intoxication syndrome, a loss of body weight of more than 15%, and seborrheic dermatitis of the scalp. The doctors at the Aids Centre concluded that he required an additional examination with a view to clarifying the diagnoses, as well as in ‑ patient medical treatment. 35. On the same day, he was transferred to the Central Hospital, where he was placed in a ward under police guard. According to the second applicant, her son was kept continuously handcuffed to his bed. She submitted to the Court his two photos taken on 25 June 2008. They showed the first applicant with his left hand handcuffed to the hospital bed. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which referred to the first applicant’s medical file in the Central Hospital, on 20 June 2008 he arrived there handcuffed. However, it was not recorded in the medical file whether he remained handcuffed throughout his treatment in that hospital. 36. At some point on 20 June 2008 the first applicant wrote an “explanatory note” to the police, according to which he had informed neither the SIZO nor the ITT administration about his HIV infection “for understandable reasons”. After his mother had informed them that he might have that diagnosis, on 5 and 13 June 2008 he had undergone medical examinations in the Central Hospital resulting in the prescription of certain medication. The medical attendant had later administered that medication to him in the ITT. The first applicant stated that he had no complaints about the ITT staff. According to the second applicant, however, her son had written the aforementioned note under duress. 37. On 24 June 2008 the first applicant wrote another note in which he stated that he had started to feel unwell during his detention (the date is illegible on the available copy). He noted that he had sought examination by a therapist on account of his continuous fever, as well as kidney, liver and intestinal pain. The medical attendant had been sent to him instead and had merely given him antipyretics. As he had not got any better, at some point between 22 and 25 May 2008 the medical attendant had begun administering injections of ceftriaxone (an antibiotic) to him. The fever and backache had, however, not ceased. As a result, on 29 May 2008 he had been placed in the SIZO hospital, without any changes to his treatment. Following his transfer to the ITT, on 4 June 2008 he had started to intake some other medicines which had been bought by his mother. 38. On 24 June 2008 the first applicant’s lawyer again requested the release of his client, referring to the seriousness of his condition, as well as to the fact that the prosecutor did not object to his release. 39. On the same date the Bakhchysaray Prosecutor requested the judge dealing with the first applicant’s criminal case to bring forward the hearing scheduled for 3 July 2008 given “the critical condition” of the first applicant and the need for him to undergo treatment in Simferopol Hospital no. 7, which specialised in the treatment of Aids (“Hospital no. 7”). The prosecutor noted the necessity to examine the aforementioned release request promptly. 40. On an unspecified date (possibly 4 July 2008 – see paragraph 47 below) the Bakhchysaray Court rejected the aforementioned request for the first applicant’s release. 41. On 26 June 2008 the Chief Doctor of the Central Hospital responded to the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance. He noted that the available medical records were insufficient for evaluating the development of his disease over time. The requests for medical assistance addressed to the Hospital had been of a contextual nature and assistance had been duly provided. 42. On the same day the first applicant was transferred from the Central Hospital to Hospital no. 7. 43. According to an extract from his medical record while in Hospital no. 7, his diagnoses included those established by the Aids Centre on 20 June 2008 (see paragraph 34 above), plus the following: pneumocystis pneumonia, second-degree anaemia, heavy immunosuppression (the CD4 count [1] being 48 cells/mm 3 ), and encephalitis of unclear origin. Furthermore, toxic hepatitis, hepatolienal syndrome, superficial gastritis, and duodenogastric reflux were indicated as concurrent illnesses. 44. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which further referred to information from the management of Hospital no. 7, the first applicant had been handcuffed during his treatment in Hospital no. 7 from 26 June to 18 July 2008. At the same time, it was noted in the aforementioned letter that there was no information as to whether the handcuffing had been constant. 45. On 2 July 2008 the ITT Governor examined the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance and delivered a decision refusing to launch a criminal investigation into the matter. He noted that the first applicant had hidden from the administration the fact that he was HIV-positive. In any event, he had received adequate medical care during his detention in the ITT. 46. On the same day the Chief Doctor of Hospital no. 7 wrote to the Chief of the Bakhchysaray Police Department, stating that the first applicant required lengthy medical treatment, that he needed to be unrestricted in his movements, and that any interruption in his treatment would trigger a sharp deterioration in his health. 47. On 4 July 2008 the Bakhchysaray Court found the first applicant guilty of fraud (instead of the robbery charge advanced by the prosecution – see paragraph 9 above) and sentenced him to a fine of 850 Ukrainian hryvnias (at the time equivalent of 115 euros). It was noted in the judgment that, until it became final the first applicant was to remain in detention. 48. On 10 July 2008 antiretroviral therapy began to be administered to the first applicant in Hospital no. 7. According to the information provided by the Public Health Ministry in its letter to the Government Agent of 23 October 2009, the first applicant had refused – apparently on one occasion – to take the prescribed medication. 49. On the same date, 10 July 2008, the second applicant requested the Chief of the Bakhchysaray Police Department to allow her to visit her son and to take care of him in the hospital given his critical condition. She also complained to the Bakhchysaray Prosecutor about the first applicant’s continuous handcuffing and sought its discontinuation. 50. On 15 July 2008 the Chief of the Bakhchysaray Police replied to the second applicant that her son would in any case soon be released once the judgment of 4 July 2008 became final. 51. On 18 July 2008 the first applicant’s lawyer also sought discontinuation of the handcuffing, noting that it was already clear that his client was about to die; nevertheless, he remained guarded by two police officers in a ward with barred windows, handcuffed to his bed. Such security measures were not only unjustified, but also inhuman. The lawyer further submitted that, as the second applicant had discovered, certain police officers guarding her son had mockingly offered him to install a cable in the ward and to handcuff him to that cable so that his movements would be “practically unrestrained”. C. The first applicant’s medical treatment after his release from detention and his death 52. On 18 July 2008 the police lifted the security measures in respect of the first applicant (apparently on the ground that the judgment of 4 July had become final), and the second applicant took him home. She wrote a note to the administration of Hospital no. 7 stating that she was taking her son home “for family reasons”. 53. On the following day, however, the first applicant was hospitalised again in Hospital no. 7 because of a deterioration in his health. 54. On 1 August 2008 the second applicant took him home again, having written a note to the hospital administration similar to that of 18 July 2008. 55. On 2 August 2008 the first applicant died. D. Investigation into the death of the first applicant 56. Following the death of her son, the second applicant complained to the prosecution authorities about the alleged denial of timely and adequate medical care available for him in detention which, according to her, had led to his death. 57. On 20 January 2009 the Bakhchysaray Prosecutor informed her that the ITT governor’s decision of 2 July 2008 (see paragraph 45 above) had been quashed and the investigation into the medical assistance provided to the first applicant had been resumed. 58. On 17 February 2009 the Ministry of Public Health set up a commission for investigating the matter. 59. On 20 March 2009 the commission issued an official investigation report which concluded that the Central Hospital’s doctors bore no responsibility for the first applicant’s death. It noted that although the Aids Centre had informed him about his HIV-positive status and had explained to him the necessity of medical monitoring as early as on 2 February 2006, the first applicant had not sought any medical examinations or monitoring. As a result, the antiretroviral therapy had not been started in good time, thus complicating the development of the disease. The commission gave its general findings as follows: “1. Medical care to persons in custody is the duty of the police medical staff. 2. Specialists of the Central Hospital do not provide medical consultations or examinations to persons in custody without being called on to do so by the [detention facilities’] personnel. 3. The [first applicant] benefited from examinations, specialist consultations, laboratory tests and treatment in Central Hospital fully and according to the approved standards. 4. The deterioration of [his] health and the complications are attributable to the delay in his application for medical care after testing HIV-positive, as well as the severity of the main disease, which triggered irreversible processes in [his] organism.” 60. On 23 March 2009 the second applicant again complained to the Bakhchysaray Prosecutor. She referred, in particular, to the allegedly unjustified conclusion of the infectious disease specialist of 13 June 2008, according to which her son had not required urgent hospitalisation at that time (see paragraph 27 above). 61. On 31 March 2009 the Bakhchysaray Prosecutor refused to institute criminal proceedings against the police or the Central Hospital’s staff, finding the second applicant’s complaint to be unsubstantiated. 62. On 3 April 2009 the Bakhchysaray Prosecutor quashed the decision of 31 March 2009 as further investigation was required, which was to include the following measures: questioning of the second applicant, the ITT staff, and the Central Hospital doctors concerned. 63. On 4 May 2009 the second applicant was questioned by the prosecutor. She submitted that her son’s health had started to deteriorate drastically in March 2008 and that he had not received prompt and adequate medical treatment. According to her, the administration of the detention facilities had merely called for an ambulance on several occasions. She insisted on the seizure and examination of all the medical documentation regarding her son – from the ITT, the SIZO, the Central Hospital and Hospital no. 7 – with a view to an evaluation of his medical needs and the actual response to them from November 2007. 64. On 25 May 2009 the Bakhchysaray Prosecutor refused to open criminal proceedings against the police or the Central Hospital’s staff, on account of lack of corpus delicti in their actions. He relied, in particular, on the conclusions of the Ministry of Public Health’s commission (see paragraph 59 above), as well as statements by police officers and doctors. 65. On 18 August 2009 the Bakhchysaray Court upheld that decision. It noted that the first applicant had himself raised no complaints against the police or medical staff. Furthermore, it appeared that as soon as the authorities had become aware of his HIV status they had provided him with adequate medical treatment. 66. On 13 October 2009 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) quashed the ruling of 18 August 2009 and allowed the second applicant’s appeal. It criticised the investigation, in particular, for its failure to give any consideration to the first applicant’s state of health and the medical assistance, if any, provided to him in detention from 20 November 2007 to early June 2008. Furthermore, the appellate court noted that the impugned ruling had been delivered by the first-instance court in the second applicant’s absence and without any proof that she had been duly notified of the hearing. It remitted the case to the Bakhchysaray Court. 67. On 23 October 2009 the First Deputy Minister of Public Health sent a letter to the Government Agent, in reply to the latter’s enquiry following the communication of the application to the Government by the Court (see also paragraphs 35, 44 and 48 above). It contained the following conclusions: “1. The reasons for the deterioration of the [first applicant’s] health and the complications in the development of [his] disease were as follows: the delayed application of [the first applicant] to [the Aids Centre] for specific medical assistance (since 2005), the seriousness of the main disease (Aids), and the irregularities in his antiretroviral treatment (there were refusals [on his part] to take the medication). 2. The death of the [first] applicant is not related to his medical treatment or the conditions in the medical facilities where he was held. It was caused by the gravity of the main disease, which triggered irreversible processes in [his] organism.” 68. On 17 December 2009 the Bakhchysaray Court quashed the decision of 25 May 2009 (see paragraph 64 above) and remitted the case to the Bakhchysaray Prosecutor for additional investigation. 69. On 19 August 2010 the Bakhchysaray Prosecutor ordered a forensic medical examination with a view to responding to the following questions: (1) Did the Central Hospital’s therapist establish correct diagnoses in respect of the first applicant on 3 June 2008 (for details see paragraph 20 above)? (2) Were the diagnoses established by the infectious disease specialist on 5 June 2008 (for details see paragraph 22 above), as well as his conclusion that the first applicant did not require urgent hospitalisation, correct? (3) Given the diagnoses established on 5 June 2008, did the first applicant indeed not require urgent hospitalisation and could be detained in the ITT or the SIZO? (4) Did the Central Hospital’s doctors prescribe correct medical treatment for the first applicant? (5) Did the Central Hospital’s doctors act correctly in ordering the laboratory tests for the first applicant (blood and urine analyses, a sugar test, and chest X-ray) only on 13 June, and not on 3 or 5 June 2008? (6) On 18 June 2008, following a repeated enquiry by the Bakhchysaray police as to the need for the first applicant to be hospitalised, the Chief Doctor of the Infectious Diseases Department of the Central Hospital issued a note stating that the first applicant did not require urgent hospitalisation. Did the doctor assess the seriousness of the first applicant’s condition correctly? Were her conclusions correct? (7) Was it lawful on the part of the medical staff of Hospital no. 7 to discharge the first applicant on 18 July 2008, given that his mother’s request for him to be discharged did not contain any indication that she had been warned about the possible negative consequences? (8) Were the actions of the medical staff in compliance with the legislation? Was there any causal link between the actions of the police and the medical staff and the death of the first applicant? 70. On 26 November 2010 the Crimea Republic Bureau for Forensic Medical Examinations completed its expert report. 71. Referring to the absence of medical documentation regarding the first applicant’s examination on 3 June 2008, it found it “extremely difficult” to answer question (1). 72. As to questions (2) and (3), the experts concluded that the diagnoses established by the infectious disease specialist on 5 June 2008 had not been based on a thorough examination of the first applicant and had not reflected the seriousness of his condition, in particular, the fever and the haemodynamic parameters. The experts concluded that the doctor’s finding that the first applicant’s urgent hospitalisation was not required on 5 June 2008 did not correspond to the diagnoses established. They noted that he had been diagnosed, in particular, with pneumocystis pneumonia, which would alone have warranted his urgent hospitalisation for in-patient medical treatment. The doctor’s prescription of antibacterial and antifungal medication for the first applicant was found to be correct (this was apparently the reply to question (4), which was not specified). 73. In reply to question (5), the experts found that the doctors’ decision of 13 June 2008 on the necessity of further laboratory examinations complied with the applicable medical standards. They noted that such laboratory tests had already been carried out on 4 June 2008 (from the documents in the case file it appears that the correct date was 3 June 2008 – see paragraph 20 above), but had needed to be further verified. 74. The expert commission replied to question (6) that at the time of his examination on 18 June 2008 the first applicant had required urgent hospitalisation and in-patient medical treatment. 75. As regards questions (7) and (8), the experts noted that they were not competent to make a legal assessment of the doctors’ actions. Given the absence of an autopsy report, the commission found it impossible to determine the cause of the death of the first applicant or to establish whether there was a causal link between the time of his hospitalisation for specialised treatment and his death. 76. On 27 December 2010 the Bakhchysaray Prosecutor instituted a criminal investigation into the failure of the Central Hospital’s doctors to comply with their professional obligations. This decision was mainly based on the expert commission’s findings of 26 November 2010. It stated, in particular, as follows: “The prosecutor’s investigation has collected sufficient evidence of inadequate compliance by the medical officials with their professional duties due to negligence. The delayed hospitalisation and, accordingly, the delayed provision of medical assistance to [the first applicant] contributed considerably to the deterioration of his health, which amounted to a grave consequence for him.” There is no information in the case file on any further developments in this investigation or its outcome. 77. On 29 April 2011 the Bakhchysaray Prosecutor delivered a decision refusing to institute criminal proceedings against the staff of the ITT or the SIZO in connection with the medical assistance provided to the first applicant. Referring to the medical records of 20 November and 2 December 2007, 10 January, 10 and 18 February and 28 May 2008, as well as later medical documentation, the prosecutor did not discern anything criminal in the actions of the administration of the detention facilities. 78. On 9 August 2011 the Bakhchysaray Court upheld that decision having dismissed the second applicant’s complaint to that regard. 79. On 22 September 2011 the Crimea Court of Appeal quashed the ruling of the first-instance court and remitted the case back to it for fresh examination. 80. On 16 November 2011 the Bakhchysaray Court again rejected the second applicant’s complaint. 81. On 13 March 2012 it however reconsidered its position, apparently after a repeated complaint from the second applicant. The Bakhchysaray Court quashed the prosecutor’s ruling of 29 April 2011 and remitted the case for additional investigation. It noted that the investigation undertaken only indirectly concerned the ITT personnel and did not concern at all the SIZO administration or medical staff. Moreover, the SIZO personnel whose duty was to respond to the first applicant’s complaints had not even been identified. The Bakhchysaray Court also observed the lack of information in the file as regards any record-keeping of the first applicant’s health-related complaints or showing the absence of such complaints during his detention. 82. The Court has not been made aware of any further developments. | This case concerned the lack of appropriate medical care given to a detainee, who died from AIDS two weeks after he was released from detention. |
510 | From the ReesChristine Goodwin | the circumstances of the case A. The first applicant, Miss Sheffield 12. The first applicant, Miss Kristina Sheffield, is a British citizen born in 1946 and currently resident in London. At birth the applicant was registered as being of the male sex. Prior to her gender reassignment treatment (see paragraph 13 below) she was married. She has one daughter from that marriage, which is now dissolved. 13. In 1986 the first applicant began treatment at a gender identity clinic in London and, on a date unspecified, successfully underwent sex reassignment surgery and treatment. She changed her name by deed poll to her present name. The change of name was recorded on her passport and driving licence. 14. Miss Sheffield refers to the difficulties which she has encountered as a result of her decision to undergo gender reassignment surgery and her subsequent change of sex. 15. She states that she was informed by her consultant psychiatrist and her surgeon that she was required to obtain a divorce as a precondition to surgery being carried out. Following the divorce, the applicant’s former spouse applied to the court to have her contact with her daughter terminated. The applicant states that the judge granted the application on the basis that contact with a transsexual would not be in the child’s interests. The applicant has not seen her daughter since then, a period of some twelve years. 16. Although her new name has been entered on her passport and driving licence, her birth certificate and various records including social- security and police records continue to record her original name and gender. As to her passport, she maintains that if there is a need for further enquiries about the bearer, this will inevitably lead to her former name and gender being disclosed. She cites by way of example her experience when applying for a visa to the United States embassy in London. 17. On 7 and 16 April 1992 Miss Sheffield attended court to stand surety in the sum of 2,000 pounds for a friend. On both occasions she was required, to her great embarrassment, to disclose to the court her previous name. She has also been dissuaded from acting as an alibi witness for a friend who was tried on criminal charges in March 1994 for fear of adding an element of sensationalism to the proceedings through the disclosure to the court of her original gender as inscribed on her birth certificate. 18. In June 1992 Miss Sheffield was arrested for breach of firearms regulations. The charges were dropped when it was established that the pistol was a replica. Following comments of police officers indicating that they were aware that the applicant had undergone a sex-change operation, the applicant sought to discover whether these personal details were held on police computer files. She discovered that the official request for information made under the provisions of the Data Protection Act 1984 required her to state her sex and other names. She did not pursue the enquiry. 19. On 20 December 1992 the applicant entered into an insurance contract in respect of her car. The form which she was required to fill in as the basis of the contract required her to state her sex. Since she continues under United Kingdom law to be regarded as male she was obliged to give her sex as male. She also notes that she is obliged under the Perjury Act 1911 to disclose her former sexual identity in certain contexts under pain of criminal sanction. 20. The applicant maintains that her decision to undergo gender reassignment surgery has resulted in her being subjected to discrimination at work or in relation to obtaining work. She is a pilot by profession. She states that she was dismissed by her employers in 1986 as a direct consequence of her gender reassignment and has found it impossible to obtain employment in the respondent State in her chosen profession. She attributes this in large part to the legal position of transsexuals in that State. B. The second applicant, Miss Horsham 21. The second applicant, Miss Rachel Horsham, is a British citizen born in 1946. She has been living in the Netherlands since 1974 and acquired Netherlands citizenship by naturalisation in September 1993. The second applicant was registered at birth as being of the male sex. She states that from an early age she began to experience difficulties in relating to herself as male and when she was twenty-one she fully understood that she was a transsexual. She left the United Kingdom in 1971 as she was concerned about the consequences of being identified as a transsexual. Thereafter she led her life abroad as a female. 22. From 1990, Miss Horsham received psychotherapy and hormonal treatment and finally underwent gender reassignment surgery on 21 May 1992 at the Free University Hospital, Amsterdam. 23. On 26 June1992, following earlier refusals, she applied to the British consulate in Amsterdam seeking a change of photograph and the inscription of her new name in her passport. She was informed that this could only be carried out in accordance with an order from the Netherlands courts. On 24 August 1992 Miss Horsham obtained an order from the Amsterdam Regional Court that she be issued a birth certificate by the Registrar of Births in The Hague recording her new name and the fact that she was of the female sex. The birth certificate was issued on 12 November 1992. In the meantime, on 11 September 1992 and on production of the court order, the British consulate issued a new passport to the applicant recording her new name and her sex as female. 24. On 15 November 1992 the second applicant requested that her original birth certificate in the United Kingdom be amended to record her sex as female. By letter dated 20 November 1992, the Office of Population Censuses and Surveys (OPCS) replied that there was no provision under United Kingdom law for any new information to be inscribed on her original birth certificate. 25. Miss Horsham states that she is forced to live in exile because of the legal situation in the United Kingdom. She has a male partner whom she plans to marry. She states that they would like to lead their married life in the United Kingdom but has been informed by the OPCS by letter dated 4 November 1993 that as a matter of English law, if she were to be held to be domiciled in the United Kingdom, she would be precluded from contracting a valid marriage whether that marriage “took place in the Netherlands or elsewhere”. | In this case the Court was not persuaded that it should depart from its Rees and Cossey judgments (see above, page 1). It noted in particular that “transsexualism continue[d] to raise complex scientific, legal, moral and social issues in respect of which there [wa]s no generally shared approach among the Contracting States” (§ 58 of the judgment). |
451 | Treatment of disabled prisoners | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1980 and lives in Siedlce. 6. In 2000 he was diagnosed with paraplegia. He is in a wheelchair and suffers from serious malfunctions of the urethral and anal sphincters and other ailments. A. The applicant ’ s detention before September 2005 7. The applicant was tried in a number of criminal proceedings and sentenced to a total of eight years ’ imprisonment. 1. The applicant ’ s first arrest and release 8. The applicant was arrested on 7 January 2001 and was initially committed to Siedlce Prison. 9. On 11 January 2001 he was transferred to the surgical and orthopaedic ward of the Warszawa-Mokotów Remand Centre hospital, where he underwent medical examinations and treatment. 10. From 15 January to 28 February 2001 he was detained in the general wing of Warszawa-Mokotów Remand Centre. 11. On 28 February 2001 the applicant was granted a six month period of leave in the enforcement of his sentence ( przerwa ). He was taken home by ambulance. 12. The licence for this temporary release was extended for a further six months in August 2001. It was subsequently extended on 3 August 2001 until 28 February 2002, after which date the applicant failed to return to prison. On 20 May 2002, however, he was granted a further extension until 28 August 2002. 13. In August 2002 the Siedlce Regional Court ( Sąd Okręgowy ) refused to extend the applicant ’ s licence again, finding that he was fit for detention. An appeal lodged by the applicant was dismissed by the Warsaw Court of Appeal. Following the expiry of the licence, the applicant again chose not to return to prison. 14. On 15 April 2003 the applicant was granted another extension until 15 June 2003. Again, he failed to return to prison after that date. 2. The applicant ’ s second arrest and release 15. On 1 September 2003 the applicant was arrested, taken to Siedlce Prison by prison bus and placed in a single-occupancy cell ( a so ‑ called “infirmary cell”). During the transfer to the prison, the applicant was seated in his immobilised wheelchair, leaning against the back of the bus. 16. The applicant was not offered any fresh incontinence pads on his arrival in Siedlce Prison, and had to use the ones which he had managed to take with him at the time of his arrest. The prison did not provide him with fresh catheters. 17. On 3 September 2003 the applicant was transferred by prison bus to Warszawa-Mokotów Remand Centre. During the transfer he was seated in an immobilised wheelchair, but according to his submissions he had to hold on to the handrails for stability throughout the transfer. During the journey, the catheter which he had been using since his arrest broke and began to leak. 18. Upon his arrival at the remand centre hospital, the applicant was placed alone in a cell measuring about 7.5 square metres with two double bunk beds. In the applicant ’ s submission, which was not contested by the Government, the cell walls and ceiling were dirty and the toilet was not separated from the rest of the cell. 19. On 5 September 2003 the applicant was placed in another, cleaner cell where the toilet had been separated from the rest of the cell by a narrow partition. The applicant had to rely on the help of his fellow inmates, who heaved him onto the toilet so that he could change his incontinence pad and helped him to access the washbasin for daily hygiene. When taking a shower in the remand centre ’ s bathhouse, the applicant sat on a stool placed under the showerhead. He submitted that, on one occasion, he had fallen off the stool and had had to continue taking the shower while lying on the floor, unassisted by anyone. 20. On an unspecified date in September 2003, the applicant noticed that he had developed a bedsore. On 11 September 2003 he was taken to the remand centre hospital ward in order to treat the bedsore. The bedsore was stitched up but, in the applicant ’ s submission, the stitches did not last a long time and the wound soon opened up again. 21. From 15 September 2003 onwards the applicant was detained in a general wing of Warszawa-Mokotów Remand Centre. 22. The Government submitted that the general wing of Warszawa-Mokotów Remand Centre had been adjusted to the needs of disabled persons. In particular, the remand centre was equipped with special lifts, wide doors and driveways for wheelchairs. All toilets were easily accessible to a person in a wheelchair. 23. On several occasions the applicant was taken by prison bus to attend hearings in courts in Siedlce and Warsaw. During each of those transfers he was seated in his wheelchair. 24. In December 2003 the applicant developed foot dermatomycosis. He was given an anti-mycosis cream. The applicant submitted that he had preferred to use the cream given to him by a fellow inmate. 25. On 7 or 12 January 2004 the applicant was transferred by prison bus back to Siedlce Prison, where he was placed in a large cell designed to hold twelve detainees. It was a smoking cell and the applicant was one of only two non-smoking detainees. He was allocated one of the lowest -level bunk beds. He was assisted by his fellow inmates in caring for his daily hygiene, but was often forced to remain in a soaked incontinence pad, in particular during the night. 26. The Government made a general submission in that respect, stating that Siedlce Prison had not been adapted to the special needs of disabled prisoners. 27. The Government also submitted that, on an unspecified date, a neurosurgeon who had examined the applicant had insisted that the patient needed daily physiotherapy. A medical certificate dated 16 January 2004 stated that such therapy was not available in prison. On the same day the Deputy Governor of Siedlce Prison applied for the applicant ’ s release. 28. On an unspecified date in April 2004 the applicant was transferred by prison bus to the hospital wing of Warszawa-Mokotów Remand Centre, where he underwent a short medical examination in order to assess the state of his health with a view to being granted another licence for temporary release. On the same day he was taken back to Siedlce Prison, again by prison bus. 29. On 26 May 2004 the applicant was granted a further six months ’ temporary release. He was taken home from prison by his mother. 30. A medical report issued on 27 May 2004 by the regional hospital in Siedlce confirmed the presence of a bedsore measuring 2 cm by 3 cm on the applicant ’ s buttock. 31. From 15 November to 6 December 2004, the applicant received medicinal treatment and physiotherapy in the Siedlce Regional Specialist Hospital ( Wojewódzki Szpital Specjalistyczny ). The discharge certificate stated that the applicant ’ s overall health had been improved (“ wzmocnienie kondycji ogólnej ) and that he was to continue his physiotherapy under the hospital scheme, remain under medical supervision and undergo periodic rehabilitation therapy. The applicant also received the following recommendations from the hospital nurse: to change the catheter bag at least once every twenty-four hours; to rinse the urethra with an antiseptic solution after each change of catheter tube; to self-monitor the urethra; and to see a doctor in the event of inflammation. 32. The applicant ’ s temporary release from prison was subsequently extended on 19 November 2004, and again on 14 February 2005 for another six-month period. The applicant failed to return to prison after the expiration of the latter period. B. The applicant ’ s detention after September 2005 1. The applicant ’ s arrest 33. On 6 June 2005 the Siedlce Regional Court refused to grant the applicant a further extension of the licence for temporary release. The applicant unsuccessfully appealed against that decision. 34. On 2 September 2005 the applicant was arrested. 2. First detention in Siedlce Prison from 2 September 2005 to 28 August 2006 35. On 2 September 2005 the applicant was taken by police car to Siedlce Prison, which is a standard prison that has not been adapted for persons with disabilities. 36. He was placed in the prison infirmary. 37. He was not given any fresh incontinence pads or catheters and had to use the ones which he had taken with him at the time of his arrest. 38. On 8 September 2005 the applicant was seen by a doctor for the first time since his arrest. 39. The applicant submitted that he was then given an unspecified number of fresh incontinence pads, but no catheters. As revealed by the Ombudsman ’ s inquiry (see paragraph 96 below), the applicant was supplied with four pads every twenty-four hours. The applicant claimed that because he had been unable to change his catheters and pads often enough during his detention in Siedlce Prison, he had developed a skin rash in the genitals area. He had also had to ration his pads. In order to do so, he limited his food and drink intake at weekends and sometimes also on weekdays. The Government did not contest that submission. 40. It appears that throughout his detention in Siedlce Prison, the applicant received regular supportive treatment ( leczenie zachowacze ) for the bedsore he had developed in 2003, which was considered a non-healing wound. 41. On an unspecified date, the applicant was transferred from the infirmary cell. 42. At first he was placed in a cell with smokers. 43. The passageway to the toilet in that cell was too narrow for his wheelchair and he was unable to reach the washbasin without soliciting help from his cellmates. 44. In this initial period of his detention in Siedlce Prison, the applicant did not have daily access to a shower room, which was situated on a different floor from his cell. 45. The applicant submitted that that was either because no recommendation to that effect had been issued by the prison doctor or because nobody had been found to carry him up and down the stairs to the shower room. Eventually, the applicant had been allowed to take a shower on a daily basis and his fellow inmates, who he claimed were “alcoholics who could barely stand on their own feet”, had been designated to carry him up and down the stairs. During his “baths”, the applicant had been seated on an ordinary chair placed directly under the showerhead. No hand rails had been installed in the shower cabin. Those submissions were not contested by the Government. 46. Towards the end of September 2005, the applicant was transferred to a cell measuring about 8 square metres. It appears that the cell was for both smoking and non-smoking prisoners. 47. As submitted by the applicant and expressly acknowledged by the Government, the cell in question had been inadequately furnished and had not been adapted for special - needs prisoners. In particular, in order to reach his bunk, the applicant had had to heave himself up from his wheelchair onto his bed without the aid of any handles or special bars. Nor could he access the cell ’ s toilet annex because the passageway was too narrow. 48. On 3 October 2005 the applicant asked the Siedlce Regional Court to grant him another period of temporary release. 49. On 20 November 2005 the applicant fell painfully after an attempt to heave himself up from his wheelchair onto his prison bunk. An ambulance was called and the applicant was administered anaesthetics and sedatives. He claimed that he had continued to suffer back pains from the fall for a period of two weeks. 50. The Government submitted, without providing any supporting documents, that on 25 November 2005 the head of healthcare at Siedlce Prison had stated that the applicant could receive adequate treatment in prison. 51. On 19 December 2005 the Siedlce Regional Court ordered the applicant to undergo a medical examination in order to assess the state of his health with a view to granting him another licence for temporary release. The examination was carried out on 21 December 2005. 52. The Government submitted that the medical examination had revealed that the applicant ’ s continued detention would not pose any danger to his health or life. The medical experts had also been of the opinion that the fact that the applicant had had trouble reaching the toilet had not caused him any inconvenience because he had been using incontinence pads and a catheter. No documents were presented to the Court in support of those submissions. 53. On an unspecified date in January 2006, the applicant had a high fever and experienced problems urinating. On 15 January 2006 he was taken by ambulance to the regional hospital in Siedlce, where he was diagnosed with a massive infection of the urethra and the presence of the bacteria enterococcus faecalis. 54. The applicant was not admitted to the civilian hospital but was offered admission to the Warszawa- Mokotów Remand Centre hospital instead. He refused, stating that his condition was serious enough to warrant his immediate hospitalisation in Siedlce and pointing out that the remand centre hospital did not have a urological ward. The regional hospital staff then gave the applicant anti-fever medication and a new catheter. They also carried out blood and urine tests, following which the applicant was taken back to Siedlce Prison by ambulance. On 19 January 2006 he was administered intravenous antibiotics and had another urine test. He continued to be treated on an outpatient basis until 26 January 2006. 55. On 8 February 2006 the Siedlce Regional Court refused to grant the applicant a licence for temporary release (file no. III Kow 399/05). The court found, on the basis of medical opinions prepared by an expert traumatologist and a neurologist, that the applicant ’ s health had been stable and that he could receive adequate medical care in detention, provided that : (1) two to three times a year he underwent physiotherapy at the hospital; (2) he was free to do a range of rehabilitation exercises on his own and to move around in his wheelchair; (3) he had the opportunity to lie on his stomach for long periods; (4) he was administered the prescribed medicines; (5) his bedsore was regularly checked by a doctor, and if necessary, treated; (6) he was placed in a single-occupancy cell; and (7) he had unrestricted access to a shower. The court noted that the applicant had refused a transfer to undergo a medical examination in the hospital wing of the Warsaw -Mokotów Remand Centre and considered that his refusal had been unjustified. 56. On 23 February 2006 the Siedlce District Court ( Sąd Rejonowy ) refused to suspend the applicant ’ s sentence ( odroczenie wykonania kary; zawieszenie postępowania wykonawczego ) (file nos. II K 11/00, II K 1070/02, II 1Ko 488/05). The court observed that two medical opinions prepared by an expert neurologist and an expert orthopaedist had confirmed that the applicant ’ s health problems could be properly treated in prison (see paragraph 55 above). The domestic court also took note of two other medical opinions (issued on unspecified dates) by experts in neurology and traumatology who had reached the conclusion that the applicant was not fit for detention for a period of at least one year, until his urological infection and his bedsore had been cured. These experts also stated that if the conditions of the applicant ’ s care and treatment enumerated in the preceding paragraph were not met, his life and health would be in danger. The domestic court concluded that Siedlce Prison had so far been able to provide the applicant with adequate conditions of detention. Consequently, the applicant ’ s request was not granted. An appeal lodged by the applicant with the Siedlce Regional Court was later dismissed on similar grounds. 57. On 10 May 2006 the Lublin Court of Appeal dismissed an appeal lodged by the applicant against the Siedlce Regional Court ’ s ruling of 8 February 2006, adding to the reasoning invoked by the lower court the argument that the applicant belonged to the prison subculture as he had committed another crime while on temporary release from prison (file no. II AKzw 259/06). 58. In the applicant ’ s own submission, on the night of 10 May 2006 he had attempted to commit suicide by slashing his left wrist, but had been rescued and had his veins stitched during the morning roll call. He did not provide any evidence in support of that submission. 59. On 15 May 2006 ultrasound imaging revealed a blockage of the applicant ’ s urethra and calculi (stones) in his bladder ( złogi w pęcherzu moczowym ). 60. On 22 May 2006 the applicant lodged a further request for temporary release with the Siedlce Regional Court. There is no information in the file as to the outcome of his request. 61. On 2 June 2006 the applicant was examined by an expert urologist, who prescribed the surgical removal of his bladder stones and further urgent specialist treatment. 62. On 21 June 2006 the Governor ( Dyrektor ) of Siedlce Prison asked the Łódź Regional Court to allow the applicant ’ s request for temporary release. The Governor relied on a medical report issued by the head of the Health Establishment ( Zakład Opieki Zdrowotnej ) at Siedlce Prison on 20 June 2006 and submitted that, despite the fact that the applicant had been doing some rehabilitation exercises on his own, muscular dystrophy, contractures in the hips and knees, and a general deterioration in his health had been observed. The applicant therefore required advanced physiotherapy, which could not be provided within the prison system. Although Łódź Prison would be prepared to offer the applicant basic physiotherapy, it could not do so before September 2006. It was also noted that after a number of recurring urological infections, the applicant required surgery for bladder stones. Moreover, according to the medical report, the applicant had developed a bedsore measuring 3 cm by 3 cm and his general state of health had been deteriorating. The report ’ s conclusion was that the applicant could not be properly treated in prison. 63. On 2 August 2006 a medical certificate prepared by an expert orthopaedist confirmed that the applicant should undergo further physiotherapy. A medical report prepared on 16 August 2006 stated that it was possible for the applicant to remain in detention provided that he could also be treated in the urological ward of the regional hospital in Siedlce. 3. First detention in Łódź Prison from 28 August to 30 or 31 October 2006 64. On 28 August 2006 the applicant was transferred by prison bus to Łódź Prison, a modern detention facility adapted for the disabled. During the transfer he was seated in his wheelchair facing the front of the bus. In his submission, which was not contested by the Government, even though the wheelchair had been immobilised, the applicant himself had bounced around during the ride as he had had nothing to hold on to. 65. In the Government ’ s submission, which was not contested by the applicant, his cell in the general wing had been adapted for special - needs prisoners. It had been spacious enough for a wheelchair and the toilet had been easily accessible. The applicant did not need the assistance of a third person at the material time but was, nevertheless, under the constant supervision of nurses and paramedics. 66. The applicant was afforded basic physiotherapy. He was initially trained to use a Parapodium orthotic device, but his training was discontinued after he developed severe back pain, which had to be treated with an anaesthetic. He was also afforded supportive treatment for his bedsore in Łódź Prison and he remained under the constant supervision of the prison ’ s medical staff. A medical report issued on 5 October 2006 by a physiotherapist from Łódź Prison stated that the applicant ’ s ailments could be adequately treated within the prison system and that the surgery for his gallbladder stones would be scheduled once his bedsore had healed. 67. On 23 October 2006 the Łódź Regional Court refused to agree to the Siedlce Prison Governor ’ s request to grant the applicant another licence for temporary release (file no. VI Kow 1499/06/Pr). The court observed that on 28 August 2006 the applicant had been transferred to Łódź Prison and held that he had been receiving adequate physiotherapy there. The court referred to the medical report issued on 5 October 2006 by Łódź Prison ’ s medical staff confirming that the applicant could be afforded adequate treatment in the prison system. The court also noted that the applicant had abused its trust by failing to return to prison on time after the previously granted period of temporary release. 4. Second detention in Siedlce Prison from 30 or 31 October 2006 to 21 March 2007 68. On 30 or 31 October 2006 the applicant was transferred back to Siedlce Prison by prison ambulance. 69. On 28 November 2006 the applicant underwent a short medical examination in the hospital in Konstancin, after which he was taken back to Siedlce Prison by prison bus. 70. On 29 November 2006 the Siedlce District Disability Evaluation Board ( Powiatowy Zespół do Spraw Orzekania o Niepełnosprawności ) declared the level of the applicant ’ s disability as “significant” ( znaczny ) and confirmed that he required the constant care of another person owing to his limited capacity to deal with his handicap. 71. On 20 December 2006 the Łódź Court of Appeal dismissed an appeal lodged by the applicant against the Łódź Regional Court ’ s decision of 23 October 2006, finding the ruling to be justified (file no. II AKzw 872/06). 72. On 1 March 2007 the applicant had an X-ray which revealed the presence of three large bladder stones measuring 2 to 3 cm. 5. Detention in Warszwa-Mokotów Remand Centre from 21 March to 24 April 2007 73. On 21 March 2007 the applicant was transferred by prison bus to the surgical ward of the Warszawa -Mokotów Remand Centre hospital. He was offered reconstructive surgery for his bedsore. The applicant refused for an unknown reason and continued to be administered only supportive treatment to the wound. 74. The applicant was subsequently committed to the remand centre ’ s general wing and given further outpatient treatment for his bedsore. Several blood and urine tests were also performed. 75. In the applicant ’ s submission, which was not contested by the Government, he had been supplied with two incontinence pads every twenty-four hours and with one single-use catheter every two to four weeks. As a result, the applicant considered it necessary to reduce his intake of food and fluids, and developed a rash in the genitals area. When he complained about the catheter problem, the remand centre doctor told him that all colleagues whom she had consulted were in agreement that catheters such as those used by the applicant were to be changed only every few weeks. 76. The applicant claimed that the above-mentioned treatment had been intentional. It constituted a form of punishment for his written complaints about the authorities and staff of the remand centre and prisons in question. It was also meant to serve as a deterrent to other prisoners. 6. Second detention in Łódź Prison from 24 April to 28 May 2007 77. On 24 April 2007 the applicant was transferred to the urology ward of Łódź Prison hospital, where he was given laser treatment for his bedsore and afforded further medical care. On 30 April 2007 he had his bladder stones surgically removed. The applicant also had a special Foley catheter put in place. 78. In between the medical procedures, the applicant was detained in the prison ’ s general wing, in a cell adapted for disabled prisoners in wheelchairs. 79. According to a report of 28 May 2007, the applicant was discharged from the hospital in overall good health. It was recommended that his Foley catheter be changed every two weeks and that his bedsore be disinfected and treated in the prison infirmary. 7. Third detention in Siedlce Prison from 28 May 2007 to 18 June 2008 80. On 28 May 2007 the applicant was transferred back to Siedlce Prison by ambulance. 81. On 19 June 2007 he was placed in a non-smoking cell. 82. In order to access the toilet in that cell, he had to heave himself from his wheelchair onto a stool, and from the stool onto the toilet seat. 83. On 27 June 2007 another request for temporary release from prison submitted by the applicant was dismissed by the Siedlce Regional Court (file no. III Kow 218/07/pr). The court observed that, according to the most recent medical reports available, the applicant could be properly treated within the prison system. It was further observed that the applicant had abused his previous release from prison by failing to return to prison after the expiry of the period granted. Lastly, the court pointed out that, despite having been confined to a wheelchair, the applicant had still managed to commit a theft. 84. An appeal lodged by the applicant against the above ‑ mentioned decision was rejected by the President ( Prezes ) of the Siedlce Regional Court for being lodged out of time. On 30 October 2007 the Lublin Court of Appeal dismissed an interlocutory appeal lodged by the applicant against the rejection ruling (file no. II AKzw 759/07). 85. On 15 October 2007 an expert neurologist prescribed a magnetic resonance imaging (MRI) test on the applicant ’ s spine. 86. On 21 October 2007 the applicant had a high fever. An ambulance was called and he was administered anti-fever medication and a sedative. 87. On 19 November 2007 the applicant experienced sudden pain in the spine. He was examined by the prison doctor and administered painkillers. 88. On 2 January 2008 the applicant ’ s spine was examined by means of an MRI test in the regional hospital in Siedlce. 89. On 10 January 2008 the applicant was taken by prison bus to the hospital in Konstancin, where a neuro-orthopaedic examination was performed and surgery of the spine was prescribed. The applicant was subsequently taken back to Siedlce Prison by prison bus. 90. On 6 February 2008 the applicant was moved to wing IX of Siedlce Prison. 91. He was later moved to wing IV and placed in a dirty cell with smokers, which in the applicant ’ s submission, had not been adapted to the needs of a disabled person. The Government did not contest that submission. 8. The applicant ’ s release 92. On 18 June 2008 the applicant was granted a licence for temporary release until 28 December 2008. The court considered that he required urgent surgery followed by physiotherapy. Following that date, the court extended the licence three more times – on 1 December 2008, 18 June 2009 and 7 December 2009 – in order to allow the applicant to undergo further operations and urological treatment. It was also held that the applicant ’ s behaviour outside the prison had been correct. The applicant ’ s temporary release from prison continued until 18 June 2010. 93. On 19 June 2010 the Siedlce District Court, on the basis of an expert surgeons ’ opinion, suspended the applicant ’ s sentence until his health problems requiring surgery had been resolved (case no. II K 538/05, II 2 Ko 1250/10). 94. Since his release, the applicant has been under medical treatment, including physiotherapy, and has periodically been admitted to hospital. C. The applicant ’ s actions concerning the conditions of his detention 1. Complaints to the Ombudsman and the prison authorities 95. On 12 May 2006 the applicant complained to the Ombudsman ( Rzecznik Praw Obywatelskich ) about the quality of the medical care afforded to him while in prison. 96. On 10 October 2006 the Ombudsman informed the applicant of the results of his inquiries : during the applicant ’ s detention in Siedlce Prison, he had been entitled to take a daily bath and had been given four incontinence pads per day; and he had been examined many times by surgeons, orthopaedists and neurologists. The Ombudsman also made a concise summary of the medical care afforded to the applicant, in particular the physiotherapy in Łódź Prison, and concluded that it had been adequate for the applicant ’ s needs. 97. Following a further complaint from the applicant lodged on 29 May 2007, on 27 September 2007 the Ombudsman asked the Regional Inspectorate of the Prison Service ( Okręgowy Inspektorat Służby Więziennej ) to provide him with details concerning the conditions of the applicant ’ s detention. 98. On 9 November 2007 the Inspectorate informed the Ombudsman that, according to the information in its possession, from the beginning of his detention in Siedlce Prison on 2 September 2005, the applicant had been provided with adequate medical care. The Inspectorate observed that the applicant had continued to suffer from an old bedsore, which had been slow to heal, but that he had had the dressing changed every day. The Inspectorate further observed that the applicant had once refused to have his bedsore removed by surgery. It pointed out that the applicant had had his bladder stones surgically removed and that, in the course of his detention, he had been treated many times on an outpatient basis. Lastly, the Inspectorate explained that Siedlce Prison had been built in 1844 and acknowledged that its cells had not been adapted to the needs of disabled detainees or to the use of wheelchairs. Any conversion or modification of the prison buildings would require the prior authorisation of the Regional Inspector of Historic Monuments ( Wojewódzki Konserwator Zabytków ). The Inspectorate did not indicate whether any request to that end had been submitted. 2. Criminal proceedings against the authorities of Siedlce Prison (file nos. 1 Ds 1261/06 and II Kp 481/06) 99. On 29 June 2006 the Siedlce district prosecutor refused to investigate the issue of the conditions of the applicant ’ s medical care in detention. The prosecutor held that the medical care afforded to the applicant had been adequate and that the applicant himself had at times refused to undergo the surgery offered to him. The prosecutor also observed that the Siedlce Prison authorities had requested the applicant ’ s transfer to Łódź Prison in order that he could receive physiotherapy. 100. An appeal lodged by the applicant against that decision was dismissed by the Siedlce District Court on 11 December 2006. The court restated the prosecutor ’ s arguments and observed that in the meantime the applicant had been transferred to Łódź Prison, where he had been given specialist rehabilitation treatment. D. Relevant domestic law and practice 101. The relevant provisions of domestic law and practice concerning medical care and conditions of detention in prisons and remand centres are set out in the Court ’ s judgments handed down in the cases of Kaprykowski v. Poland ( no. 23052/05, §§ 36-39, 3 February 2009 ); Sławomir Musiał v. Poland ( no. 28300/06, §§ 48-61, 20 January 2009 ); and Orchowski v. Poland ( no. 17885/04, §§ 75-85, 13 October 2009 ). More recent developments are described in the Court ’ s decision in the case of Łatak v. Poland ( dec. no. 52070/08, §§ 25-54, 12 October 2010 ). 102. As for the rules on detaining persons with disabilities, Article 96 of the Code of Enforcement of Criminal Sentences (“the Code”) establishes a “therapeutic regime” under which convicted persons with mental or physical disabilities who require specialist treatment, in particular psychological or medical care, or rehabilitation, can serve their prison sentences. 103. Furthermore, Article 97 § 1 of the Code provides that, with regard to prisoners serving their penalty under a therapeutic regime, the authorities should be guided, inter alia, by the need to prepare those prisoners for a self-sufficient life. Paragraph 2 provides that the execution of the prison sentence must be adapted to the prisoner ’ s needs in terms of medical treatment, hygiene and sanitation. Lastly, paragraph 3 provides that convicted persons who no longer require specialist treatment should be transferred to another appropriate prison regime. 104. On the basis of Article 249 of the Code, on 25 August 2003 the Minister of Justice issued the Ordinance on the code of practice for the organisation and arrangement of pre ‑ trial detention ( Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu organizacyjno - porządkowego wykonywania tymczasowego aresztowania ) (“the 2003 Ordinance on Pre-Trial Detention”) and the Ordinance on the code of practice for the organisation and arrangement of imprisonment ( Rozporządzenie Ministra Sprawiedliwości w sprawie regulaminu organizacyjno ‑ porządkowego wykonywania kary pozbawienia wolności ) (“the 2003 Ordinance on Imprisonment”). Both ordinances entered into force on 1 September 2003. 105. The 2003 Ordinance on Pre ‑ Trial Detention and the 2003 Ordinance on Imprisonment both state that pre ‑ trial detention and detention after conviction must take place in remand centres and prisons respectively. However, both ordinances provide for exceptions to the standard regime of detention. 106. Paragraph 28 of the 2003 Ordinance on Pre ‑ Trial Detention and paragraph 26 of the 2003 Ordinance on Imprisonment provide that the governor of a remand centre or a prison may, at the request of or after consultation with a doctor, make necessary exceptions to the arrangements for pre ‑ trial detention or imprisonment as laid down in the relevant code of practice, in so far as this is justified by the state of health of the detainee concerned. The provisions apply to detainees with a physical disability. 107. The detention of disabled persons is not regulated any further by Polish domestic law. E. International law and practice Recommendation Rec(2006)2 of the Committee of Ministers to Member States on the European Prison Rules (adopted on 11 January 2006) 108. The Recommendation reads as follows: “The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe, Having regard to the European Convention on Human Rights and the case law of the European Court of Human Rights; ... Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety, security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates, thus preparing them for their reintegration into society; ... Recommends that governments of member states: - be guided in their legislation, policies and practice by the rules contained in the appendix to this recommendation, which replaces Recommendation No. R (87) 3 of the Committee of Ministers on the European Prison Rules; ...” Appendix to Recommendation Rec(2006)2 “ Basic principles 1. All persons deprived of their liberty shall be treated with respect for their human rights. 2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. ... 39. Prison authorities shall safeguard the health of all prisoners in their care. ... 40.3 Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation. ... 41.1 Every prison shall have the services of at least one qualified general medical practitioner. 41.2 Arrangements shall be made to ensure at all times that a qualified medical practitioner is available without delay in cases of urgency. 41.3 Where prisons do not have a full-time medical practitioner, a part-time medical practitioner shall visit regularly. 41.4 Every prison shall have personnel suitably trained in health care. ... 43.1 The medical practitioner shall have the care of the physical and mental health of the prisoners and shall see, under the conditions and with a frequency consistent with health care standards in the community, all sick prisoners, all who report illness or injury and any prisoner to whom attention is specially directed. 43.2 The medical practitioner or a qualified nurse reporting to such a medical practitioner shall pay particular attention to the health of prisoners held under conditions of solitary confinement, shall visit such prisoners daily, and shall provide them with prompt medical assistance and treatment at the request of such prisoners or the prison staff. 43.3 The medical practitioner shall report to the director whenever it is considered that a prisoner ’ s physical or mental health is being put seriously at risk by continued imprisonment or by any condition of imprisonment, including conditions of solitary confinement. 44. The medical practitioner or other competent authority shall regularly inspect, collect information by other means if appropriate, and advise the director upon: ... b. the hygiene and cleanliness of the institution and prisoners; c. the sanitation, heating, lighting and ventilation of the institution; andd. the suitability and cleanliness of the prisoners ’ clothing and bedding. 45.1 The director shall consider the reports and advice that the medical practitioner or other competent authority submits according to Rules 43 and 44 and, when in agreement with the recommendations made, shall take immediate steps to implement them. 45.2 If the recommendations of the medical practitioner are not within the director ’ s competence or if the director does not agree with them, the director shall immediately submit the advice of the medical practitioner and a personal report to higher authority. Health care provision 46.1 Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals, when such treatment is not available in prison. 46.2 Where a prison service has its own hospital facilities, they shall be adequately staffed and equipped to provide the prisoners referred to them with appropriate care and treatment. ... ” | A paraplegic confined to a wheelchair and suffering from a number of health problems, the applicant complained that the care given to him during his detention and the conditions of his detention had been incompatible with his medical needs. In particular, he alleged that the prison facilities were not adapted to the use of a wheelchair, which had resulted in problems of access to the toilet facilities, and that he had not received a sufficient supply of incontinence pads. |
256 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, a Turkish national, was born in 1949 and is currently being held in İmralı Prison. 6. The facts of the case up to 12 May 2005 were presented by the Court in the Öcalan v. Turkey judgment ([GC], no. 46221/99, ECHR 2005 ‑ IV). They may be summarised as follows. 7. On 15 February 1999 the applicant was arrested by members of the Turkish security forces in an aircraft in the international area of Nairobi airport. The applicant was returned to Turkey from Kenya and taken into custody at İmralı Prison on 16 February 1999. The inmates at this prison had meanwhile been transferred to other prisons. 8. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial. A. The trial 9. By a judgment of 29 June 1999, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey ’ s territory and of training and leading a gang of armed terrorists for that purpose, and sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of an illegal organisation, namely the PKK ( the Workers ’ Party of Kurdistan – hereafter “ the PKK ” ). The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court reiterated that the applicant had acknowledged that the Turkish Government ’ s estimate of the number of those killed (almost 30, 000) or wounded as a result of the PKK ’ s activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence and the major, pressing threat to the country that those acts posed. 10. By a judgment adopted on 22 November 1999 and delivered on 25 November 1999, the Court of Cassation upheld the judgment of 29 June 1999 in its entirety. 11. In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism. By Law no. 4771, published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison. 12. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant ’ s death sentence to life imprisonment. 13. On 20 February 2006 Turkey ratified Protocol No. 13 concerning the abolition of the death penalty in all circumstances. B. Conditions of detention after 12 May 2005 1. Conditions of detention in İmralı Prison 14. The applicant ’ s conditions of detention in İmralı Prison before 12 May 2005 are described in the judgment of the same date ( see Öcalan, cited above, §§ 192-196). 15. Furthermore, the applicant was the sole inmate of İmralı Prison until 17 November 2009, when five further individuals were transferred to it; all the prisoners, including the applicant, were then housed in a new block which had just been built. 16. In May 2007 and January 2010, that is to say after the Court ’ s judgment of 12 May 2005, delegations from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) visited İmralı Prison. ( a) Before 17 November 2009 17. Before 17 November 2009 the cell which the applicant occupied alone measured approximately 13 sq. m, and was equipped with a bed, a table, a chair and a shelf. The cell was air- conditioned and had a partially partitioned sanitary annex. There was a window overlooking an enclosed yard and the cell had adequate access to natural light and adequate artificial lighting. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp. 18. The time granted to the applicant to leave his cell and use the exercise yard ( measuring approximately 45 sq. m ), which is walled in and covered with mesh, was limited to one hour daily ( divided into two 30-minute periods, one in the morning and the other in the afternoon ). 19. The applicant was not in sensory isolation or solitary confinement. As he was the only inmate of the prison, his only contacts were with the members of staff working there, who were only allowed to talk to him about subjects falling within the scope of their duties and relating to everyday life in the prison. 20. The applicant had access to books and a radio which could only receive State broadcasts. He was not allowed to have a television set in his cell on the grounds that he was a dangerous prisoner and a member of an illegal organisation, and was prone to commit recurrent disciplinary offences. Nor was he given access to a telephone, for the same reasons. 21. The applicant, who had restricted access to daily and weekly newspapers, was allowed a maximum of three papers in his cell at any one time. The newspapers were often several days old. In fact, he received them once a week, from his family or his lawyers. In the absence of visits from family members and lawyers ( owing to the inaccessibility of the island ), the applicant often spent long periods without access to recent newspapers. Those papers which he did receive had always been extensively censored. 22. The applicant was allowed to correspond with the outside world under the supervision of the prison authorities. The mail which he received was verified and censored. Correspondence with the outside was occasionally interrupted. 23. The applicant remained in the same cell from the date of his transfer to İmralı Prison – after his arrest on 16 February 1999 – until 17 November 2009, that is to say for almost ten years nine months. ( b) Since 17 November 2009 24. In order to comply with the requests put forward by the CPT and put an end to the applicant ’ s relative social isolation, the governmental authorities built a number of new blocks inside the grounds of İmralı Prison. On 17 November 2009 the applicant and five other inmates transferred from other prisons were moved to these new facilities. 25. Since that date the applicant has been on his own in a cell with an area of 9. 8 sq. m ( living space), with a further 2 sq. m of sanitary facilities, comprising a bed, a small table, two chairs, a metal cupboard and a kitchenette with a washbasin. The building containing the cells is properly damp-proofed. According to the CPT, although the applicant ’ s cell has a 1 m x 0. 5 m window and a partly glazed door, both opening on to an enclosed yard, it has insufficient direct sunlight because of the 6 - m -high wall surrounding the yard. The CPT ’ s proposal to lower the wall has not yet been accepted by the Government, whose experts have certified that the cell receives enough natural light. 26. The prison is equipped with a sports room with a ping ‑ pong table and two other rooms with chairs and tables, all three rooms enjoying plentiful natural daylight. Every inmate, including the applicant, has two hours of outdoors exercise every day alone in the exercise yard reserved for each cell. Moreover, all the prisoners can spend one hour per week alone in a recreation room ( where no specific activities are on offer ) and two hours per month alone in the prison library. Furthermore, every prisoner takes part in collective activities, including one hour ’ s conversation per week with the other prisoners. 27. Following its visit in January 2010 the CPT observed that the prison regime applied to the applicant was only a very modest step in the right direction, particularly as compared to the regime applied in the other F-type prisons for the same category of convicted prisoners, who could engage in outdoor activities all day long, with non-supervised collective activities with the other prisoners for between three and seven days a week. 28. In the light of these observations, the authorities responsible for İmralı Prison undertook to relax the regime in question, so that the İmralı inmates, including the applicant, can now engage alone in out-of-cell activities for four hours per day, receive newspapers twice (instead of once) a week and spend three hours (instead of one) per week together to talk to each other. All the İmralı inmates can engage, for one hour per week, in any of the following collective activities : painting and handicraft activities, table tennis, chess, volleyball and basketball. According to the prison registers, the applicant in fact plays volleyball and basketball but does not take part in the other activities. The prison authorities also informed the CPT that they were considering providing inmates with two hours per week of additional collective activities ( painting/ handicraft, board games and sport). The applicant therefore apparently spends a great deal of time outside his cell, that is to say, depending on his choice of collective activity, up to a maximum of 38 hours per week, including a maximum of ten hours in the company of the other prisoners. 29. Since 20 March 2010, in the wake of new technical arrangements, the applicant, like the other İmralı inmates, has been allowed ten minutes ’ telephone calls to the outside every fortnight. 30. In its report of 9 July 2010 the CPT recommended that the Government should ensure that the applicant could accompany the other inmates for outdoor activities, and that he and the other prisoners could spend a reasonable part of the day ( eight hours or more ) outside their cells, engaged in purposeful activities of a varied nature. The CPT also recommended allowing the applicant to have a television set in his cell, like all other persons held in high- security prisons. The prison authorities did not act on these latter recommendations on the grounds that the applicant still held dangerous prisoner status and failed to comply with the prison rules, particularly during visits by his lawyers. On 12 January 2012 the applicant was supplied with a television set. 2. Restrictions to visits by the applicant ’ s lawyers and relatives ( a) Visit frequency 31. The applicant has received many visits from his lawyers and relatives, but not as many as he and his visitors would have liked, mainly because of “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland ” and “ the inability of the boats to cope with prevailing weather conditions ”. 32. In fact, the old ferry boat İmralı 9 was still in service but could only sail when there was little wind. The larger ferry boat, Tuzla, which the Government had promised when the previous Öcalan case was pending before the Grand Chamber of the Court, began operating in 2006. The Tuzla, being better suited than the İmralı 9 to difficult weather conditions, provides more frequent crossings between İmralı Island and the mainland. It sometimes suffers technical breakdowns, entailing repairs which sometimes take several weeks. 33. As regards visits, between March and September 2006, for example, twenty-one out of thirty-one requests for visits were refused. These refusals continued into October 2006, with five out of six requests being refused, and November 2006, with six out of ten requests refused. After a brief improvement in December 2006 ( one out of six requests refused ), January 2007 ( two out of six requests refused ) and February 2007 ( all four requests granted ), visit frequency once again dropped off in March 2007 (six out of eight requests refused ) and April 2007 ( four out of five requests refused ), picking up again in May 2007 ( one out of five requests refused ) and June 2007 ( one out of four requests refused ). The number of family visits totalled 14 in 2005, 13 in 2006 and seven in 2007. In fact, between 16 February 1999 and September 2007, the applicant received 126 visits from his brothers and sisters and 675 from his lawyers or advisers. 34. For the remainder of 2007 and in 2008, 2009 and, broadly speaking, 2010, the frequency of visits by lawyers and members of the applicant ’ s family regularly increased. In 2009, for example, forty-two visits out of the fifty-two requested took place on the scheduled date or the day after ( because of unfavourable weather conditions). 35. In 2011 and 2012 the ratio of refusals to requests increased significantly. In 2011, for example, the applicant only received two family visits out of the six requested. Again in 2011, he only received twenty-three of the sixty -seven requested visits by his lawyers. Three lawyers ’ visits took place in January, two in February, five in March, three in April, four in May, four in June and two in July 2011. Between August and December 2011 the applicant received no visits apart from one family visit on 12 October 2011, with thirty-three refusals. The prison authorities explained their refusals by poor weather conditions and ferry breakdowns. In 2012 the applicant received a few visits from his brother, and none from his lawyers. ( b) Visits by lawyers 36. As a general rule, persons in prison in Turkey can talk to their lawyers on working days, during working hours, without any restrictions as regards frequency over any given period. Since İmralı Island is only accessible by means of the shuttle boat provided by the İmralı Prison administration, the applicant ’ s lawyers ’ visits, in practice, always took place on a Wednesday, the day of the crossing. i. Procedure during visits by the applicant ’ s lawyers 37. As a general rule, prisoners can communicate with their lawyers completely confidentially, without supervision. On 1 June 2005, however, Law no. 5275 on the enforcement of sentences and preventive measures came into force, replacing the previous legislation on this matter. Under section 59 of the new Law, if it emerges from documents and other evidence that visits by lawyers to a person convicted of organised crime are serving as a means of communication within the criminal organisation in question, the post-sentencing judge may, at the request of the prosecution, impose the following measures: presence of an official when the convicted prisoner is talking to his lawyers, verification of documents exchanged between the prisoner and his lawyers during such visits, and /or confiscation of all or some of these documents by the judge. 38. On 1 June 2005 the applicant was visited by his lawyers. Just before the interview the prison authorities communicated to the applicant and his lawyers a decision by the Bursa post- sentencing judge applying section 59 of Law no. 5275 to that visit. An officer was therefore present during the interview, the conversation between the applicant and his lawyers was tape-recorded and the documents supplied by the lawyers were submitted to the judge for examination. 39. In order to protest against the new procedure, the applicant interrupted the interview after a quarter of an hour and asked his lawyers to pay no further visits to him until the said procedure had been revoked. He informed the prison authorities that the procedure infringed the confidentiality of the interview between the lawyers and their client and “ rendered the visit and the interview pointless in terms of preparing his defence ”. 40. During subsequent visits an official was in attendance during interviews. Moreover, the conversation between the applicant and his lawyers was again tape-recorded and submitted to the post-sentencing judge for examination. 41. The applicant ’ s lawyers also lodged an appeal with the Bursa Assize Court against the Bursa post-sentencing judge ’ s decision ordering attendance by an officer during interviews and the recording of the conversations. By decisions of 27 April and 9 June 2006, the Assize Court dismissed the appeal on the grounds that the impugned measures were geared to preventing the transmission of orders within a terrorist organisation, that they did not affect the applicant ’ s defence rights and that in any case the transcription of the conversations showed that they had not concerned the applicant ’ s defence in any set of proceedings but the internal functioning of the PKK and the strategy to be adopted by this illegal organisation. 42. During the lawyers ’ visit on 29 March 2006, one of the officers present in the room in which the interview was taking place interrupted the conversation on the ground that it was not confined to preparing the applicant ’ s defence before a judicial authority. The applicant ’ s lawyers filed a complaint against the officer in question for abuse of office. On 21 April 2006 the Bursa public prosecutor ’ s office issued a decision not to prosecute. ii. Content of the exchanges between the applicant and his lawyers 43. It appears from the records of the lawyers ’ visits that the conversations very often began with a statement by the lawyers on recent developments concerning the PKK. The applicant consulted his lawyers on changes of persons at the different structural levels of the organisation, the various activities and meetings organised by the PKK bodies (at regional and national levels, and also abroad ), the political line adopted by the party leaders, competition among the leaders and losses sustained by armed militants in combating the security forces. The applicant, who presented himself as “the leader of the Kurdish people ”, commentated all the information provided by his lawyers and mandated them to transmit his ideas and instructions with a view to reshaping the PKK ’ s policies in Turkey (he broadly advocated recognising the rights of the Kurdish minority in a completely democratic Turkey) or in other countries. Moreover, he approved or rejected executive appointments to the various PKK bodies and advised on the party ’ s internal organisation. He also recommended that the PKK lay down its weapons when the Government had ended hostilities and the PKK ’ s demands had been met. 44. At the request of the Bursa public prosecutor, the Bursa post-sentencing judge several times refused to hand over copies of the records to the applicant and his lawyers on the grounds that they contained direct or indirect instructions by the applicant to the PKK, which used them to reshape its strategy and tactics. 45. Since May 2005 the applicant had remained actively involved in the political debate in Turkey on the PKK armed separatist movement, which identified him as its main representative, and his instructions as transmitted through his lawyers had been closely monitored by the general public, prompting a variety of reactions, some of which had been very extreme. A section of the Turkish population considered him as the most dangerous terrorist in the country, who was still active even in prison. His supporters saw him as their leader and the ultimate head of the separatist movement. The applicant also stated that he had taken part in negotiations with certain State officials with an eye to resolving the problems posed by the armed separatist movement, but that most of his calls for the discontinuation of the armed conflict had been heard neither by the Government nor by his armed movement. iii. Examples of disciplinary sanctions imposed on the applicant by reason of his conversations with his lawyers 46. The applicant was placed in solitary confinement on the ground that he had transmitted instructions to the organisation of which he was the leader during his lawyers ’ visits on the following dates : 30 November 2005, 12 July and 27 September 2006, 4 April, 4 July and 7 November 2007, 9 April and 14 May 2008, and 2 January and 4 November 2009. 47. Therefore, according to the tape recording of the conversation of 30 November 2005 between the applicant and his lawyers, the applicant told his legal representatives how he considered that PKK members could invite citizens of Kurdish origin to demonstrate in order to demand the right to education in the Kurdish language. 48. On 12 December 2005 the İmralı Prison disciplinary board, considering that the applicant ’ s words corresponded to “ training and propaganda activities within a criminal organisation ”, sentenced the applicant to 20 days ’ solitary confinement. Pursuant to this sanction, the prison administration removed all the applicant ’ s books and newspapers for twenty days. 49. The applicant ’ s appeal against this disciplinary measure was dismissed on 22 December 2005 by the Bursa post-sentencing judge on the grounds that the applicant had incited women and children to organise illegal demonstrations, thus carrying out what might be described as training and propaganda activities within a criminal organisation. 50. On 7 February 2006 the Bursa Assize Court dismissed the appeal lodged by the applicant ’ s lawyers against the decision of 22 December 2005. The Assize Court considered that the impugned decision was in conformity with the law. 51. The applicant was subjected to a further sanction of 20 days ’ solitary confinement on the ground of a conversation with his lawyers which had taken place on 12 July 2006. His appeals against this decision having been dismissed, he served this sentence from 18 August to 7 September 2006. The applicant ’ s lawyers were not apprised of this sanction until 23 August 2006, when a request for a visit to the applicant was rejected. ( c) Visits by members of the applicant ’ s family 52. Visits by relatives of the applicant ( in practice, his brothers and sisters ) are limited to one hour every fortnight. These visits originally took place in a visiting room comprising a barrier to separate the prisoner from his visitors, as the visiting areas where the prisoner and his visitors could sit together at a table were reserved for relatives of the first degree under Rule 14 of the Rules on visits to prisoners and detainees. On 2 December 2009 the State Council annulled this provision. Without waiting for this decision to become final, the İmralı Prison Governing Board granted the applicant the right to see his brothers and sisters unseparated by any barrier. On 26 July 2010, therefore, the applicant was able to meet his brother “ around a table” for the first time. 53. Where a visit is cancelled owing to weather conditions, the authorities can organise another visit a few days later, at the family ’ s request. In practice, Wednesday visits which are cancelled are not replaced because the visitors have never requested such replacement. 54. Furthermore, visits by family members have not been as frequent as the applicant and his relatives would have wished because of the inadequacy of the available means of transport under unfavourable weather conditions. Almost half of all the visits requested have been rejected owing to shuttle boat breakdowns or poor weather conditions. 3. Proceedings brought against some of the applicant ’ s lawyers ( a) Ban on some lawyers representing the applicant 55. Article 151/3-4 of the new version of the Code of Criminal Procedure, which came into force on 1 June 2005, provides that lawyers who have been prosecuted for crimes linked to terrorism may be banned from representing persons convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations who have been convicted from continuing to lead their organisations from their place of incarceration through the intermediary of their lawyers. 56. By a decision of 6 June 2005, the Istanbul prosecutor ’ s office invited the Istanbul Assize Court to apply this measure to some of the applicant ’ s lawyers. 57. By a decision of 7 June 2005, the 9 th Assize Court deprived twelve lawyers of their status as counsel to the applicant for a period of one year. 58. On 20 June 2005, the 10 th Assize Court of Istanbul dismissed the applicant ’ s appeal against that decision. ( b) Prosecution of some of the applicant ’ s lawyers for acting as messengers between him and his former armed organisation 59. On 23 November 2011, on instructions from the Istanbul public prosecutor ’ s office, the law enforcement agencies arrested and took into custody 36 lawyers representing the applicant in 16 Turkish departments (including six lawyers representing the applicant before the Court ), searched their offices and seized all the documents relating to the applicant. The prosecution suspected the lawyers in question of having acted as messengers between the applicant and the other PKK leaders. 4. Alleged poisoning of the applicant 60. By a letter of 7 March 2007 the applicant ’ s representatives informed the Court that they had asked a Strasbourg medical laboratory to analyse six hairs which they considered to be from the applicant and that the analyses carried out on 5 February 2007 demonstrated the presence of abnormally high doses of chromium and strontium. 61. However, analyses of samples taken directly from the applicant at the prison failed to disclose any trace of toxic elements or elements endangering health. ... | The applicant, the founder of the PKK (Kurdistan Workers’ Party), an illegal organisation, complained mainly about the irreducible nature of his sentence to life imprisonment, and about the conditions of his detention (in particular his social isolation and the restrictions on his communication with members of his family and his lawyers) in the prison on the island of İmralı. He also complained of restrictions on his telephone communications, on his correspondence and on visits from his relatives and lawyers. |
574 | Cases in which the Court found no violation of Article 4 of Protocol No. 4 | I. THE CIRCUMSTANCES OF THE CASE A. Events of 17 November 2014 5. On 17 November 2014 at 1.30 a.m. the Slovak Border and Foreigners Police (“the police”) apprehended, near the Ukrainian border, the nineteen applicants, together with other Afghan nationals. The applicants were found hidden in a truck whose driver fled after the police patrol had followed the vehicle which had not reacted to warning signs; none of them were carrying identity documents. 6. According to the Government, thirty-two persons, including the applicants, were subsequently taken to the border police station in Petrovce (“the police station”) for the purposes of an identity check. Ten police officers were assigned to record their statements and document their cases; other officers were involved in undertaking certain actions around the site where the applicants had been apprehended and in providing transfers to the police station. A Persian-language translator was present from 9 a.m. for twenty-four hours and assisted the police in their dealings with the applicants. As to the other thirteen persons (the persons other than the nineteen applicants) brought to the police station, one of them was taken for a medical examination; the remaining twelve (five men, five women and two children) – who had asked for asylum – were transferred to a reception centre for asylum seekers on 18 November 2014 at 2 a.m. The Government provided a copy of the note on that transfer, which contained the names of the persons concerned. 7. The Government submitted, in respect of the applicants, the following documents, dated 17 November 2014, most of which were signed by the applicants and the interpreter: - official notes, according to which the applicants had been brought to the police station for the purposes of establishing their identity; - transcripts of oral explanations provided by the applicants concerning their irregular border-crossing; according to those transcripts, all the applicants had answered in the negative when asked by the police whether they had suffered persecution in their country of origin and whether they wished to seek asylum in Slovakia, stating that they had left Afghanistan for economic reasons and wanted to go to Germany; - documents whereby the applicants had been informed of the commencement of the proceedings on their administrative expulsion and of their right to legal aid; - transcripts of the interviews conducted with the applicants in their capacity as parties to the expulsion proceedings, whereby they had declared that they had not suffered any kind of persecution in Afghanistan nor been sentenced to death there; - documents whereby each applicant had been informed of the possibility to comment on the contents of his respective case file and to adduce evidence, neither of which possibilities the applicants had used; - police decisions, rendered individually in respect of each applicant but with the same wording, on the applicants ’ administrative expulsion to Ukraine on the basis of sections 77 § 1 and 82 § 1 (a) of the Aliens Act (Law no. 404/2011 Coll., as amended), including a three-year ban on re-entering Slovak territory under Article 82 § 3 (b); pursuant to Article 83 § 2 (a) of the Aliens Act, the applicants had not been given any time-limit in respect of their voluntary departure, and the suspensive effect of any possible appeal had been excluded on the grounds of urgent public interest, pursuant to section 55(2) of the Administrative Proceedings Act (Law no. 71/1967 Coll., as amended); according to the instruction at the end of each decision regarding available remedies, an appeal against a decision could be lodged within fifteen days of the respective applicant being notified of that decision, and any subsequent decision was reviewable by a court; according to the note on the last page of that instruction, the decisions in question had been handed over to the applicants, as affirmed by the applicants ’ and the interpreter ’ s signatures; - documents whereby the applicants had been informed that their personal data would be registered in the information systems of the Slovak Ministry of Interior, in the EURODAC system, and in the Schengen information system; - documents whereby the applicants had been informed of the possibility for them to ask the International Organization for Migration to be voluntarily returned to their home country; - requests for the readmission of the applicants to Ukraine, issued by the police in a simplified procedure; documents certifying that the applicants had been returned to the Ukrainian authorities at 10.30 p.m. on 17 November 2014; and official notes on the execution of the expulsion decisions. 8. According to the above documents, all the interviews lasted exactly ten minutes and were conducted by two police officers in the presence of the interpreter. The times of some interviews, as given in the documents, overlapped – for example, between 9.20 a.m. and 9.30 a.m. two police officers and the same interpreter were recorded as being present at three different interviews. The questions were standardised, and most of the applicants ’ recorded answers were identical; the only difference was in the respective amounts of money the applicants were recorded as having in their possession. 9. Before the Court, the applicants submitted that the police had not properly identified all of them, that only a few of them had been interviewed, and that they had been made to sign documents of unknown content in the Slovak language, having been told that those documents related to their asylum requests and that they would be transferred to a reception centre for asylum seekers. They also maintained that they had been given no information regarding the asylum procedure in Slovakia; they had nevertheless approached police officers with requests for asylum and for legal assistance, but the police had ignored them – even though they had transferred the remaining twelve persons to an establishment for asylum seekers. Moreover, the interpreter was present for a few hours only, as affirmed by the transcripts of the interviews, according to which all those interviews had taken place between 9.10 a.m. and 12.30 p.m. 10. It appears from the expulsion decisions of 17 November 2014 that the police took into account the economic situation of the applicants and the absence of any family ties in Slovakia, and that they examined the existence of any obstacles to the administrative expulsion, within the meaning of section 81 of the Aliens Act and with regard to Articles 3 and 8 of the Convention. In that the police also based their standpoint on the statements made by the applicants, who had not alleged any interference with their private and family life in Ukraine or any risk of torture, inhuman or degrading treatment or punishment if they were returned there. The police furthermore emphasised that the applicants were not at risk of any forced return to their country of origin (which had been confirmed at a bilateral meeting at the Slovak/Ukraine border of persons with the relevant authority), and that Ukraine had ratified the Convention. 11. On the basis of the above decisions on their administrative expulsion, the applicants were expelled to Ukraine on the same day (17 November 2014) at 10.30 p.m. They maintained that they had not been given copies of the decisions while they had still been on Slovak territory and that they had obtained copies only later by authorising their current legal representative to inspect their respective case files. B. Developments after the applicants ’ expulsion to Ukraine 12. In Ukraine, the applicants were placed in the temporary detention centre in the town of Chop. 13. The file contains a copy of an email string between employees of an NGO in Ukraine who from 18 November 2014 onwards were allowed to talk to the applicants and lawyers from the Slovak branch of the Human Rights League, which resulted in the lodging of the appeals detailed. It appears from the email string that the applicants had been stating, since 18 November 2014, that they had asked for asylum in Slovakia and did not understand why they had been removed from Slovakia (unlike the other twelve migrants who had been arrested with the applicants); they also expressed the view that the interpreter had provided an inaccurate translation. 14. On 25 November 2014, the first four applicants ( Zabi Asady, Farid Ahmad Ahmadi, Ali Ahmadi, Sher Badov Shinwari ) instructed a lawyer and lodged an appeal against the administrative expulsion decisions against them, alleging a violation of their procedural rights and a violation of Article 13 of the Convention taken in conjunction with Article 3 and Article 4 of Protocol No. 4. They maintained that only one person from their group had been questioned by the police and that the others had merely been handed documents in Slovak for them to sign, having been told that they would be taken to a reception centre for asylum seekers; thus, the obstacles to their expulsion and the risk of their indirect refoulement to Afghanistan where they feared prosecution had not been examined. Furthermore, their requests for asylum had been ignored by the Slovak police, they had not had access to any legal aid, and they had been expelled without having been first served with the relevant decision and without having had an effective remedy at their disposal. In their view, the situation complained of had thus amounted to collective expulsion, which was prohibited by Article 4 of Protocol No. 4. 15. On 10 and 25 December 2014, the applicants were transferred to another detention centre (in the municipality of Zhuravychi ). 16. On 7 January 2015, the Slovak border police directorate dismissed their appeals and confirmed the impugned decisions of 17 November 2014. Referring to the contents of the file, the border police directorate pointed out that interpretation into Persian had been provided throughout the entire proceedings on expulsion; moreover, the applicants had been duly informed of their rights, had signed the relevant documents and had expressly stated that they did not want to ask for asylum. Furthermore, individual decisions had been delivered in respect of all the applicants and there had been no obstacles to their expulsion to Ukraine. C. The applicants ’ whereabouts and their contacts with their legal representative 17. According to their legal representative, some applicants returned to Afghanistan, where they live under unstable conditions due to the deteriorating security situation in the country, which does not always allow them access to means of communication. Others are asylum seekers in Europe, with only occasional access to the Internet or telephone. In the light of those specific circumstances, their legal representative has created a Facebook group with a view to staying in contact with the applicants. 18. In observations dated 10 May 2017, the applicants ’ legal representative provided the Court with the following information concerning the whereabouts of the applicants and her contacts with them: - Mr Zabi Asady currently resides in Sweden and maintains indirect contact with the applicants ’ legal representative via another applicant, Mr Sher Badov Shinwari. The legal representative provided the Court with a link to his Facebook account. He is also a member of a Facebook group dedicated to the instant case. - Mr Farid Ahmad Ahmadi currently resides in Vienna, Austria. The legal representative provided a link to his Facebook account. - Mr Ali Ahmadi ’ s place of residence is currently unknown. - Mr Sher Badov Shinwari currently resides in Austria as an asylum seeker and maintains direct contact with the legal representative via Facebook. He provided a statement regarding his just satisfaction claim. - Mr Abdul Hamid Nasri currently resides in Denmark as an asylum seeker and maintains contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim. - Mr Mohammad Azam currently resides in Kabul, Afghanistan and maintains direct contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim. - Mr Samiuddin Faizy currently resides in France as an asylum seeker and maintains contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim. - Mr Mohammad Shakib currently resides in Odessa, Ukraine and maintains contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim. - Mr Nasir Ahangarzada ’ s place of residence is currently unknown. - Mr Zabiullah Zazai currently resides in Mazar -e Sharif, Afghanistan, and maintains direct contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim. - Mr Ali Ahmad Ali Zada ’ s place of residence is currently unknown. - Mr Abobaker Jamil currently resides in Afghanistan and maintains direct contact with the legal representative via Facebook. He provided a statement regarding the just satisfaction claim. - Mr Salman Faqiri and his brother Mr Sohrab Faqiri are no longer interested in pursuing the proceedings and wish to strike their applications out of the Court ’ s list of cases. - Mr Mohamad Farid Ekhlas ’ s place of residence is currently unknown. - Mr Edris Yusufi ’ s place of residence is currently unknown. - Mr Bezhan Rahimi currently resides in Germany. The legal representative provided a link to his Facebook account. - Mr Miramza Sidiqi currently resides in Berlin, Germany. His legal representative provided a link to his Facebook account. - Mr Rahim Rahimi currently resides in Zurich, Switzerland. He maintains indirect contact with the legal representative via a Facebook group dedicated to the instant case; the legal representative provided a link to his Facebook account. | This case concerned the expulsion of 19 Afghan nationals to Ukraine by the Slovak Border and Foreigners Police. |
318 | Prevention of terrorism | BACKGROUND TO THE CASE 8. Adeel Muhammad was born in 1993 and lives in Tehsil Karor (Pakistan). Ramzan Muhammad was born in 1982 and lives in Dubai (United Arab Emirates). 9. Adeel Muhammad (“the first applicant”) entered Romania in September 2012, on a student visa he had obtained on 7 September 2012 and which was valid until 2015. He received an “Erasmus Mundus” scholarship and studied in the economic sciences faculty of Lucian Blaga University in Sibiu. 10. Ramzan Muhammad (“the second applicant”) entered Romania on 17 February 2009 on a long-stay student visa. He completed his first year of preparatory studies in Piteşti before being transferred to Lucian Blaga University in Sibiu on being granted an “Erasmus Mundus” scholarship. His wife arrived in Romania on 14 April 2012, having obtained a long-stay visa for family reunification purposes. THE APPLICATION OF THE PUBLIC PROSECUTOR’S OFFICE FOR THE APPLICANTS TO BE DECLARED UNDESIRABLE PERSONS 11. In a note of 4 December 2012 the Romanian Intelligence Service ( Serviciul român de informaţii – “the SRI”) asked the public prosecutor’s office at the Bucharest Court of Appeal (the “public prosecutor’s office”) to apply to the appropriate court to assess whether the applicants should be declared “undesirable persons” in Romania for a fifteen-year period. In support of its request, the SRI provided classified documents at the “secret” ( strict secret ) level (see paragraph 51 below). 12. On 4 December 2012 the public prosecutor’s office submitted an application ( rezoluție ) to the Administrative Division of that court (the “Court of Appeal”) asking it to declare the two applicants undesirable in Romania. The application stated that, according to the “secret” classified intelligence transmitted to the public prosecutor by the SRI, there were serious indications that the applicants intended to engage in activities capable of endangering national security within the meaning of Article 85 § 1 of Emergency Ordinance ( ordonanţei de urgenţă a Guvernului – “OUG”) no. 194/2002 on the status of aliens in Romania (“OUG no. 194/2002”) in conjunction with section 3 points (i) and (l) of Law no. 51/1991 on national security (“Law no. 51/1991”) and section 44 of Law no. 535/2004 on the prevention and countering of terrorism (“Law no. 535/2004”). The public prosecutor’s office also stated that the safeguards provided for under Article 1 of Protocol No. 7 to the Convention would not be breached by the measure, given that an alien could be expelled before exercising the rights enumerated in paragraph 1 (a)-(c) of that Article where such expulsion was necessary in the interests of public order or for national security reasons. The public prosecutor’s office based its application on Article 85 § 2 and Article 97 § 3 of OUG no. 194/2002. 13. In support of its application, the public prosecutor’s office submitted to the Court of Appeal the “secret” classified documents it had received from the SRI, indicating that those documents could be used in compliance with the provisions of Government Order no. 585/2002 on the approval of national standards for the protection of classified information in Romania (“Government Order no. 585/2002”). The president of the Administrative Division of the Court of Appeal was informed that the public prosecutor’s office had filed a “document” classified as “secret” with the classified information department at the Court of Appeal so that it could be studied by the judge who would be examining the applicants’ case. 14. According to the Government’s observations, the classified document transmitted by the SRI to the public prosecutor’s office gave details and examples of the activities of the two applicants in support of a fundamentalist Islamist group linked ideologically to al-Qaeda, showing their connections with various terrorist entities and their training. It also contained specific data and information concerning the two applicants’ involvement in activities which endangered national security, as collected by the SRI using its technical intelligence gathering resources. 15. Also on 4 December 2012, after 5.20 p.m., the Sibiu police summoned the applicants to appear the next day, at 9 a.m., in the Court of Appeal, in connection with proceedings for the purpose of examining the application of the public prosecutor’s office. The summonses were not accompanied by any documents. 16. On 5 December 2012, after travelling overnight by bus the applicants reached Bucharest at 5 a.m. They arrived at the Court of Appeal at the time indicated. THE FIRST-INSTANCE PROCEEDINGS BEFORE THE COURT OF APPEAL 17. In an interlocutory judgment of 5 December 2012, the bench to which the case had first been allocated relinquished it, on the grounds that the judge did not have the authorisation required by Law no. 182/2002 on the protection of secret information (“Law no. 182/2002”) to have access to the classified document adduced by the public prosecutor’s office. The Inspectorate General for Immigration (the “IGI”) was joined as a party to the proceedings, being the competent authority for the execution of the Court of Appeal’s decision. 18. The case was allocated to a different bench, which had been issued by the Office of the national register for State secret information (the “ORNISS”) with authorisation to access documents corresponding to the level of classification of the information in question. 19. A hearing took place on 5 December 2012 during which the applicants were present, assisted by an Urdu interpreter. 20. The Court of Appeal allowed the applicants the time necessary to apprise themselves, through the interpreter, of the application by which the case had been referred to the court. It was noted in that document that there were strong indications that the applicants had planned to carry out activities capable of endangering national security and falling within the scope of Article 85 § 1 of OUG no. 194/2002, in conjunction with section 3 points (i) and (l) of Law no. 51/1991 and section 44 of Law no. 535/2004. It was also mentioned that the data and intelligence underlying the initiating application had been forwarded to the Court of Appeal. 21. The applicants indicated orally to the Court of Appeal that they did not understand the reasons why they had been summoned, bearing in mind that the initiating application merely contained references to legal provisions. The Court of Appeal replied that the documents in the file were classified and that only the judge was authorised to consult them. 22. As the applicants stated that they had no preliminary requests, the Court of Appeal called on the parties to submit evidence. The public prosecutor’s office requested the admission in evidence of the classified documents that it had filed with the classified information department of the Court of Appeal (see paragraph 13 above). The applicants indicated that they had no evidence to adduce and they asked the Court of Appeal to scrutinise the case documents strictly, given that, in their submission, they had done nothing to endanger national security. The IGI representative asked that the classified documents submitted to the Court of Appeal be admitted in evidence. 23. Referring to Article 167 of the Code of Civil Procedure, the Court of Appeal decided that the classified documents should be admitted in evidence, indicating that such evidence was conclusive, pertinent and useful for the resolution of the case. It then opened the proceedings on the merits of the case. 24. The public prosecutor’s office asked the court to declare the applicants undesirable persons and order their expulsion from Romania, submitting that it was apparent from the classified documents that they had engaged in activities capable of endangering national security. 25. The applicants replied that they had done nothing illegal, that they were merely students and that the first applicant had arrived in Romania only two months earlier. They complained that they had been wrongly suspected and asked to be assisted by officially assigned defence counsel. 26. After submitting the applicants’ request for legal assistance to adversarial debate, the Court of Appeal rejected it as out of time, on the ground that such a request should have been submitted before the opening of the proceedings on the merits of the case (see paragraph 23 above). 27. In a judgment of the same date, delivered in private, the Court of Appeal declared the applicants undesirable for a fifteen-year period and ordered that they be placed in administrative custody ( luare în custodie publică ) pending their deportation. 28. The Court of Appeal’s reasoning was as follows: “... Ramzan Muhammad and Adeel Muhammad, Pakistani nationals, are in Romania on student visas, both having ‘Erasmus Mundus’ scholarships to study in the economic sciences faculty of Lucian Blaga University in Sibiu. After examining the information transmitted by the SRI, classified for State secrecy purposes at the ‘secret’ level, the Court [of Appeal] regards it as proof that the aliens [in question] are engaging in activities capable of endangering national security. Account should be taken of the provisions of section 3 points (i) and (l) of Law no. 51/1991 [on national security] under which the following acts represent threats for the national security of Romania: (i) terrorist acts, and any planning or suspicion [ sic ] related thereto, by any means whatsoever; ... (l) the creation or constitution of an organisation or group, or the fact of belonging to one or supporting one by any means, in pursuit of any of the activities listed in points (a) to (k) ..., and the covert pursuit of such activities by lawfully established organisations or groups. The Court [of Appeal] also takes into consideration section 44 of Law no. 535/2004 [on the prevention and countering of terrorism], which provides that foreign nationals or stateless persons concerning whom there are data or serious indications that they intend to engage in terrorist activities or to promote terrorism are to be declared undesirable in Romania and that their leave to remain may be curtailed, if they have not been prohibited from leaving the country, in accordance with the law on immigration status in Romania. The Court [of Appeal] also has regard to the fact that Romania, as a member of the United Nations, has undertaken to deny leave to remain to anyone who finances, prepare or commits terrorist acts, or who supports such acts. The measure ordered [in the present case] does not breach Article 8 of the [European] Convention [on Human Rights] given that, even if this measure constitutes an interference with [the right to] private and family life [of those concerned] it is in accordance with the law, pursues a legitimate aim and is necessary in a democratic society. The measure is indeed provided for by Article 85 of OUG no. 194/2002, which authorises the ordering of an alien’s removal or exclusion from the country, [namely by a] normative instrument published in the Official Gazette, which thus satisfies the condition of accessibility of the law. Similarly, procedural safeguards are upheld for an alien who is declared undesirable, as the measure is ordered by a tribunal within the meaning of Article 6 of the ECHR, ensuring due respect for the adversarial principle and for defence rights. A measure declaring aliens undesirable pursues a legitimate aim, namely the prevention of serious acts that are capable of endangering the national security of the Romanian State. As to the need to adopt such a measure in respect of aliens, it is justified by the nature and seriousness of the activities carried out [by them], in respect of which it should be verified that the measure is proportionate to the aim pursued. Having regard to these considerations and in the light of the provisions of Article 85 § 5 of OUG no. 194/2002 to the effect that, where an alien is declared undesirable for national security reasons, the judgment does not mention the data or intelligence underlying its decision, the Court [of Appeal] grants the application and declares [the applicants] undesirable in Romania, on national security grounds, for a fifteen-year period. In the meantime, the placement of the aliens in administrative detention is hereby ordered, in accordance with Article 97 § 3 of OUG no. 194/2002, pending their deportation, [without this detention exceeding] eighteen months.” 29. Also on 5 December 2012 the applicants were informed, by a letter from the IGI of Bucharest in Romanian and English, that they had been declared undesirable persons and that they would be removed from Romania under escort. They were placed in the Otopeni immigration holding facility pending their deportation. THE SRI PRESS RELEASE 30. On 6 December 2012 the SRI published a press release, which read as follows: “In the context of the measures taken by the Romanian authorities responsible for the prevention and countering of terrorism, which formed the basis of decision no. 6906 of Bucharest Court of Appeal of 5 December 2012, in which the foreign nationals R.M. and A.M. [the applicants, whose names were not disclosed] were declared undesirable for a period of fifteen years, the SRI is authorised to communicate as follows: On the basis of the intelligence gathered through the National System for the Prevention and Countering of Terrorism (the ‘SNPCT’), the SRI, in cooperation with the other institutions [operating within the framework of that] System, undertook complex investigations to obtain information on activities conducted in preparation for a terrorist attack on Romanian soil, during the period of the end-of-year festivities, by an extremist entity ideologically affiliated to al-Qaeda. For that purpose, the competent bodies monitored the activities of the entity’s members in our country, [these individuals] being regarded as ‘support points’, who were acting by way of conspiracy under external coordination. It was established that they were supposed to provide support for the whole operation to be carried out. It should be noted that one of those individuals [who were] implicated had the necessary knowledge to make improvised explosive devices. Similarly, according to the information obtained [by the competent bodies], in order to implement the action thus planned, there was an attempt [by the extremist entity] to co-opt certain individuals who were known to support Jihadi groups and who were supposed to act in collaboration with the ‘support points’ in Romania. The relevant data and information obtained in this case were transmitted, in accordance with the law, to the public prosecutor’s office at the Bucharest Court of Appeal, which supported, in the proceedings before that court, the SRI’s proposal to declare undesirable the foreign nationals R.M. and A.M., on the grounds of their involvement in activities capable of seriously endangering national security in the counterterrorism field. Following the decision of the Bucharest Court of Appeal, the two foreign nationals were arrested and placed in administrative detention pending their deportation. In its capacity as national authority for counterterrorism, the SRI, together with the other institutions of the SNPCT, prioritises the prevention of any terrorist risk and threat.” 31. Two articles were published in the newspaper Adevărul reporting the information in the SRI’s press release, but without citing it as the source of that information, while indicating the applicants’ names and the details of their university studies in Romania. At an unknown date the applicants became aware of the content of the press release. APPEAL PROCEEDINGS IN THE HIGH COURT OF CASSATION AND JUSTICE 32. The applicants, who in the meantime had retained two lawyers to represent them in the proceedings, appealed to the High Court of Cassation and Justice (the “High Court”) against the Court of Appeal’s judgment of 5 December 2012 (see paragraphs 27-28 above). Those lawyers did not hold an ORNISS certificate and thus did not have access to the classified documents in the file (see paragraph 54 below). 33. In their grounds of appeal the applicants complained that they had not been informed by the Court of Appeal of the procedure to be followed and more specifically of the conditions in which they could have sought legal assistance. They further submitted that, in breach of Article 85 § 4 of OUG no. 194/2002, the Court of Appeal had not informed them of the facts “underlying the proposal” to have them declared undesirable, merely referring to the “secret” level of classification of the documents in the file. They submitted that there was no mention in the file of classified documents at any level of classification and in their view, even assuming that it did contain classified documents, the Court of Appeal had a legal obligation to inform them of the case against them. That failure to inform them of the precise accusations against them had deprived them of the possibility of defending themselves and had thus breached their right to a fair hearing and to an effective remedy. 34. The applicants further complained that, even though they themselves had been denied access to the case against them on the ground that the documents in the file were classified as “secret”, the day after the judgment of the Court of Appeal the SRI had published a press release, relayed by the media, in which the accusations against them were set out. 35. They alleged that the Court of Appeal could have informed them of the specific acts they were said to have committed without disclosing secret intelligence, concerning for example the SRI’s investigative methods, the names of the SRI’s officers who had monitored them or the evidence gathered. The Court of Appeal had explained its decision by the “activities” in which they had allegedly “engaged” and the nature of those activities, thus implying in their view that they were accused of performing specific acts and not merely an intention to perform activities undermining national security. In the absence of such disclosure, it had been impossible for them to submit evidence in their defence. 36. They added, lastly, that the second applicant had previously been persecuted by agents of the SRI and that, for this reason, on 19 November 2012, they had already submitted a request to the University to have their situation clarified and if possible to be transferred to another country participating in the “Erasmus Mundus” scholarship scheme. 37. A hearing took place on 20 December 2012 before the High Court. The applicants, who were present at the hearing, assisted by their two lawyers and an interpreter, sought permission to produce documents attesting to their conduct at the university and their integration into university life. 38. The applicants also asked the High Court to contact bank T. to obtain a bank statement showing their financial situation and to admit it in evidence. They adduced a note issued by bank T. dated 18 December 2012, which stated that, pursuant to Articles 111-113 of Government Ordinance no. 99/2006 on credit institutions and the sufficiency of equity capital, which guaranteed the secrecy of data, the bank could not disclose their account statements to a third party but could make them available to the High Court, if need be. They argued that, given that neither they nor their lawyers, who did not have the requisite authorisation, had access to the classified evidence in the file, the bank statement would enable them to counter the accusations made against them in the SRI press release and to show that they had not financed terrorist activities (see paragraph 30 above). 39. The public prosecutor’s office and the Romanian Immigration Office (the “ORI”), which had been joined as parties to the proceedings, opposed that request, submitting that the bank statement could not provide any relevant or useful evidence in the case. The ORI explained that only the classified documents were pertinent to the case, as the proceedings concerned the information contained therein, and not any information subsequently published in the press. The public prosecutor responsible for the case expressed the view that the requested evidence would not be relevant or useful for the examination of the case. 40. Referring to Article 305 of the Code of Civil Procedure, the High Court admitted evidence of the applicants’ conduct at university and rejected the applicants’ request to obtain the bank documents. It then put the case to adversarial debate. 41. On the merits of the case, the applicants submitted that they were mere students and had not committed terrorist acts. They reiterated that the Court of Appeal had not communicated the facts underlying the public prosecutor’s application, in breach of the relevant provisions of OUG no. 194/2002. In spite of the “secret” classification of the evidence in the file, the day after the first-instance judgment had been delivered the accusations against them had been published in the SRI press release (see paragraph 30 above). They had not been informed of their right to be assisted by a lawyer or of the accusations against them. They had not been afforded the procedural safeguards of a fair trial as the proceedings had been a mere formality. 42. In a final judgment of 20 December 2012 the High Court dismissed the applicants’ appeal. After summing up the decision of the Court of Appeal, the High Court found that it could be seen from the classified documents available to it that the court below had rightly taken account of the existence of indications that the applicants had intended to engage in activities capable of endangering national security. It further observed that, pursuant to Article 85 § 5 of OUG no. 194/2002, where a decision to declare an alien undesirable was based on reasons of national security, the data and information, together with the factual grounds ( motivele de fapt ) underlying the judges’ opinion, could not be mentioned in the judgment. It added as follows: “The applicants’ arguments about their good conduct at university cannot prosper and fail to rebut the conviction of the court, based as it is on the classified documents containing information which is necessary and sufficient to prove the existence of strong indications that they intended to engage in activities that were capable of endangering national security.” 43. The High Court then analysed the applicants’ ground of appeal based on the alleged breach of their fundamental rights and procedural safeguards during the first-instance proceedings. It found as follows: “The measures of expulsion, administrative detention and removal under escort of aliens who have been declared undesirable in Romania are legitimate, being governed in domestic law by the provisions of Chapter V (‘Rules governing the removal of aliens from Romania’) of OUG no. 194/2002; [they] are necessary and proportionate to the aim pursued in so far as the court [ instanța de judecată ] has found that the evidence gathered proves that there are strong indications [ indicii temeinice ] that the persons concerned intend to engage in activities that are capable of endangering national security.” 44. The High Court further noted that the provisions of Article 1 of Protocol No. 7 to the Convention were applicable to the case. The applicants were legally in Romania when the expulsion procedure was initiated but that the provisions of paragraph 2 of that Article were not applicable to them, given that they had not been expelled before the exercise of their rights. After referring to the Court’s findings in Ahmed v. Romania (no. 34621/03, 13 July 2010), Kaya v. Romania (no. 33970/05, 12 October 2006), and Lupsa v. Romania (no. 10337/04, ECHR 2006 ‑ VII), where a breach of Article 1 of Protocol No. 7 to the Convention had been found because the competent authorities had not notified the aliens concerned of the document initiating the proceedings or of the slightest information as to the accusations against them, the High Court found that the circumstances of the present case were different. 45. The High Court noted that, in the present case, the applicants had been notified of the public prosecutor’s initiating application and had been allotted the necessary time, with the assistance of an interpreter, to study its content and the supporting documents in the file. They had thus been in a position to know the reason why they had been summoned to court in the exclusion and expulsion proceedings. It gave the following reasoning: “It is true that the documents classified as ‘secret’ in the file, [which] were available to the court [which examined the case], were not disclosed to the appellants. The lack of direct and specific disclosure of the information contained in the documents classified as a State secret [ secret de Stat ] at the level ‘secret’ [ strict secret ] submitted by the SRI is consistent with the statutory obligation, binding on the court, under the provisions of Article 85 § 5 of Ordinance no. 194/2002 ... and especially the provisions of Law no. 182/2002 on the protection of classified information [citation of sections 2(2), 15 (f) and 39(1) and (2) of the Law]. Under those provisions, the court, having taken note of the information contained in the classified documents in the case file, is bound by a duty not to disclose that information. Compliance with the safeguard imposed by Article 1 of Protocol No. 7 to the Convention, [namely that of] ensuring the protection of the person (being deported) against any arbitrary interference by the authorities with his or her Convention rights (see ECtHR, Ahmed case, cited above, § 52), is secured in the present case by the fact that both the first-instance court and the appellate court had the possibility of examining the validity of the existence of the indications [that those concerned] ‘intended to engage in activities capable of endangering national security’ (within the meaning of Article 85 § 1 of OUG no. 194/2002); the case has thus been examined at two levels of jurisdiction before an ‘independent and impartial tribunal’ within the meaning of Article 6 § 1 of the Convention. If it were considered that the need to inform the deportee of the grounds for his deportation entailed, unequivocally, the direct, effective, concrete and timely presentation of the indications ... this would be tantamount – in the High Court’s opinion and in relation to its obligation not to disclose or encourage the disclosure of information which could cause serious harm to national security – to calling into question the very notion of national security together with all the measures aimed at protecting information falling within this concept. The [High Court] notes that [in the present case] the rights secured by Article 1 of Protocol No. 7 to the Convention were upheld in the judicial proceedings: [the appellants] had the genuine possibility of being present both before the first-instance court and the appeal court, assisted by lawyers of their choosing; [they were able to submit] reasons against their expulsion; their case was examined directly and effectively by an independent and impartial tribunal; [and] they were represented by lawyers of their choosing. Having regard to the arguments set out above, the High Court takes the view that there has not been – contrary to the grounds of appeal – any breach of the right to an effective remedy or the right of access to a court, as guaranteed by Article 6 of the Convention, nor has there been any disregard of the non-discrimination principle guaranteed by Article 14 of the Convention and Article 1 of Protocol No. 12, as prohibited by Article 18 § 1 of the Constitution. The fact that, after the delivery of the Court of Appeal’s judgment, the press and broadcasting media revealed information on which the expulsion decision was based does not lead to the conclusion that the right of access to a court or the right to a fair hearing have been breached. For the same reasons as those given above, the [appellants’] argument that their right of access to a court was only nominally respected cannot prosper. The [appellants’] argument as to the protection of individuals under Article 3 of the Convention is also ill-founded since the risk of being subjected to inhuman or degrading treatment in the country of destination has not been proved by documents emanating from State authorities [ statale ]; [the appellants] merely adduced a report by the Romanian National Council for Refugees drawn up on the basis of certain ‘public information, selected and translated following an on-line search’. Also ill-founded is the argument raised by [the appellant] Muhammad Ramzan under Article 8 of the Convention on the basis of the presence in Romania of his wife, who is nine months’ pregnant and is dependent on his doctoral grant. Even though his deportation constitutes an interference with the exercise of his right to respect for his family life, the [High Court] takes the view that, for the reasons given above, this interference meets the requirements of Article 8 § 2 of the Convention, being in accordance with the law and necessary in the interest of national security. As to the upholding of the [appellants’] defence rights before the Court of Appeal, the High Court notes that [they] had the possibility of submitting arguments against their expulsion and were able to express themselves in their mother tongue, through an interpreter. Moreover, it should be noted that, pursuant to the law [ în mod legal ] the Court of Appeal had declared out of time their request for assistance by officially assigned counsel, on the ground that this request had been submitted once the merits of the case had been put to adversarial debate, not at the earlier stage of the proceedings. In addition, before the appellate court, they have been assisted by lawyers of their choosing and have been able to submit all their arguments in their defence. Consequently, it cannot be admitted that there has been a breach of the right to a fair trial, as protected by Article 21 § 3 of the Constitution and by Article 6 § 1 of the Convention. The [appellants’] arguments to the effect that the Court of Appeal had written [that they had] ‘engaged in activities’ [ desfășurarea de activități ], whereas the public prosecutor’s application had referred to an ‘intention to engage in certain activities’, and had erroneously cited the text of section 3 point (i) of Law no. 51/1991, are not capable of negating the lawfulness and validity of the decision delivered. Having regard to the foregoing, ... the High Court dismisses the appeal as unfounded ...” 46. The applicants left Romania on 27 December 2012. | This case concerned proceedings as a result of which the applicants, Pakistani nationals living lawfully in Romania, were declared undesirable and deported. The applicants complained that they had not been afforded due procedural safeguards and had not been able to defend themselves effectively in the proceedings. More specifically they alleged that they had not been notified of the actual accusations against them, whilst they did not have access to the documents in the file. |
465 | Dublin regulation | I. THE CIRCUMSTANCES OF THE CASE 8. The facts of the case may be summarised as follows. 9. On an unspecified date the first applicant left Afghanistan for Pakistan, where he met and married the second applicant. The couple subsequently moved to Iran, where they lived for fifteen years. 10. On an unspecified date the couple and their children left Iran for Turkey and from there took a boat to Italy. According to the findings of the Italian police and the identification forms annexed to the observations of the Italian Government, the applicants ( the couple and their five oldest children ) landed on the coast of Calabria on 16 July 2011 and were immediately subjected to the EURODAC identification procedure (taking of photographs and fingerprints) after supplying a false identity. The same day the couple and the five children were placed in a reception facility provided by the municipal authorities of Stignano (Reggio Calabria province), where they remained until 26 July 2011. On that date they were transferred to the Reception Centre for Asylum Seekers ( Centro di Acoglienza per Richiedenti Asilo, “CARA”) in Bari, in the Puglia region, once their true identity had been established. 11. According to the applicants, living conditions in the centre were poor, particularly on account of the lack of appropriate sanitation facilities, the lack of privacy and the climate of violence among the occupants. 12. On 28 July 2011 the applicants left the CARA in Bari without permission. They subsequently travelled to Austria, where on 30 July 2011 they were again registered in the EURODAC system. They lodged an application for asylum in Austria which was rejected. On 1 August 2011 Austria submitted a request to take charge of the applicants to the Italian authorities, which on 17 August 2011 formally accepted the request. On an unspecified date the applicants travelled to Switzerland. On 14 November 2011 the Austrian authorities informed their Italian counterparts that the transfer had been cancelled because the applicants had gone missing. 13. On 3 November 2011 the applicants applied for asylum in Switzerland. 14. On 15 November 2011 the first and second applicants were interviewed by the Federal Migration Office ( “the FMO ” ) and stated that living conditions in Italy were difficult and that it would be impossible for the first applicant to find work there. 15. On 22 November 2011 the FMO requested the Italian authorities to take charge of the applicants. In their respective observations the Swiss and Italian Governments agreed that the request had been tacitly accepted by Italy. 16. In a decision of 24 January 2012 the FMO rejected the applicants ’ asylum application and made an order for their removal to Italy. The administrative authority considered that “the difficult living conditions in Italy [did] not render the removal order unenforceable”, that “it [was] therefore for the Italian authorities to provide support to the applicants” and that “the Swiss authorities [did] not have competence to take the place of the Italian authorities.” On the basis of these considerations it concluded that “the file [did] not contain any specific element disclosing a risk to the applicants ’ lives in the event of their return to Italy.” 17. On 2 February 2012 the applicants appealed to the Federal Administrative Court. In support of their appeal they submitted that the reception conditions for asylum seekers in Italy were in breach of Article 3 of the Convention and that the federal authorities had not given sufficient consideration to their complaint in that regard. 18. In a judgment of 9 February 2012 the Federal Administrative Court dismissed the appeal, upholding the FMO ’ s decision in its entirety. The court considered that “while there [were] shortcomings in the reception and social welfare arrangements, and asylum seekers [could] not always be taken care of by the authorities or private charities”, there was no evidence in the file capable of “rebutting the presumption that Italy complie[d] with its obligations under public international law.” With more particular reference to the applicants ’ conduct it held that “in deciding to travel to Switzerland, they [had] not given the Italian authorities the opportunity to assume their obligations with regard to [the applicants ’ ] situation .” 19. On 13 March 2012 the applicants requested the FMO to have the proceedings reopened and to grant them asylum in Switzerland. They submitted that their individual situation had not been examined in detail. The FMO forwarded the request to the Federal Administrative Court, which reclassified it as a “ request for revision” of the judgment of 9 February 2012 and rejected it in a judgment dated 21 March 2012, on the ground that the applicants had not submitted any new grounds which they could not have relied on during the ordinary proceedings. The applicants had based their request mainly on a more detailed account of their stay in Italy and the fact that their children were now attending school in Switzerland. 20. In a letter of 10 May 2012 which reached the Registry on 15 May, the applicants applied to this Court and sought an interim measure requesting the Swiss Government not to deport them to Italy for the duration of the proceedings. 21. In a fax dated 18 May 2012 the Registry informed the Swiss Government ’ s Agent that the acting President of the Section to which the case had been assigned had decided to indicate to the Swiss Government under Rule 39 of the Rules of Court that the applicants should not be deported to Italy for the duration of the proceedings before the Court. IV. THE ITALIAN CONTEXT A. Asylum procedure 37. Any individual wishing to claim asylum in Italy must apply for that purpose to the border police or, if he or she is already in Italy, to the immigration department of the police headquarters ( questura ). Once the asylum application has been lodged, the person concerned has the right to enter the country and has access to the asylum procedure, and is given leave to remain pending a decision by the territorial commission for the recognition of international protection (“the territorial commission”) on his or her asylum application. 38. Where the asylum seeker does not have a valid entry visa, the police carry out an identification procedure ( fotosegnalamento ), if need be with the assistance of an interpreter. This procedure involves taking passport photographs and fingerprints. The latter are compared with the fingerprints in the EURODAC system and the national AFIS database ( Automated Fingerprint Identification System ). Following this procedure, the asylum seeker is issued with a document ( cedolino ) confirming the initial registration of the application and containing details of his or her subsequent appointments, in particular the appointment for formal registration of the application. 39. The formal application for asylum must be presented in writing. On the basis of an interview with the asylum seeker conducted in a language which he or she understands, the police fill out the “standard form C/3 for recognition of refugee status within the meaning of the Geneva Convention” ( Modello C/3 per il riconoscimento dello status di rifugiato ai sensi della Convenzione di Ginevra ), which includes questions concerning the asylum seeker ’ s personal details ( first name and surname, date of birth, nationality, first names and surnames of parents/spouse/children and their whereabouts), the person ’ s journey to Italy and the reasons why he or she has fled his or her country of origin and is applying for asylum in Italy. The asylum seeker may provide a document written in his or her own language – to be appended to the form – containing an account of the background to the asylum application. The police keep the original form and provide the asylum seeker with a stamped copy. 40. The asylum seeker is then invited, by means of written notification from the police, to attend an interview with the competent territorial commission, made up of two representatives of the Ministry of the Interior, one representative of the municipality, province ( provincia ) or region concerned and one representative of the Office of the United Nations High Commissioner for Refugees ( “ UNHCR ” ). The asylum seeker is assisted by an interpreter during the interview. The territorial commission may (i) allow the asylum application by granting the asylum seeker refugee status within the meaning of the 1951 Geneva Convention relating to the Status of Refugees ( “ the 1951 Refugee Convention ” ); (ii) not grant the asylum seeker refugee status within the meaning of the 1951 Refugee Convention, but grant him or her subsidiary protection under Article 15(c) of the Qualification Directive (see paragraph 2 9 above), as implemented by Legislative Decree ( decreto legislativo ) no. 251/2007; (iii) not grant asylum or subsidiary protection but grant a residence permit on compelling humanitarian grounds under the terms of Law Decrees ( decreti - legge ) nos. 286/1998 and 25/2008; or (iv) not grant the asylum seeker any form of protection. In this case he or she will be issued with an order to leave Italy ( foglio di via ) within fifteen days. 41. A person recognised as a refugee under the 1951 Refugee Convention will be issued with a renewable five-year residence permit. He or she is further entitled, inter alia, to a travel document for aliens ( titolo di viaggio per stranieri ), to work, to family reunification and to benefit under the general schemes for social assistance, health care, social housing and education provided for by Italian domestic law. 42. A person granted subsidiary protection will be issued with a residence permit valid for three years which may be renewed by the territorial commission that granted it. This permit may also be converted into a residence permit allowing the holder to work in Italy, provided this is requested before the expiry of the original residence permit and provided the person concerned holds an identity document. A residence permit granted for subsidiary protection entitles the person concerned, inter alia, to a travel document for aliens, to work, to family reunification and to benefit under the general schemes for social assistance, health care, social housing and education provided for by Italian domestic law. 43. A person granted a residence permit on compelling humanitarian grounds will be issued with a one-year permit which can be converted into a residence permit allowing the holder to work in Italy, provided he or she has a passport. A residence permit granted on humanitarian grounds entitles the person concerned to work, to health care and, if he or she has no passport, to a travel document for aliens. 44. An appeal against a refusal by the territorial commission to grant international protection may be lodged with the District Court (Civil Division) ( sezione civile del Tribunale ) and further appeals may be lodged with the Court of Appeal ( Corte di appello ) and, at last instance, with the Court of Cassation ( Corte di cassazione ). Such appeals must be submitted by a lawyer and the asylum seeker concerned may apply for legal aid for this purpose. 45. An asylum seeker may withdraw his or her asylum application at any stage of the procedure for examination of the application by completing a form to that effect. This form can be obtained from the police immigration department. The formal withdrawal of an asylum application entails the end of the procedure without the application being examined by the territorial commission. However, there is no automatic assumption that the asylum application has been withdrawn where the person concerned moves out of the asylum seekers ’ reception centre, departs for an unknown destination or leaves the country. Where an asylum seeker fails to appear before the territorial commission, the latter will officially report his or her absence and determine the application on the basis of the information in the file. In most cases it will reject the asylum application for “untraceability” ( diniego per irreperibilità ). The person concerned may then request a fresh interview and the procedure is reactivated once he or she has been notified of the date of the interview. B. Legal framework and organisation of the reception system for asylum seekers 46. A detailed description of the legal framework and organisation of the reception system for asylum seekers in Italy, provided by the Italian Government, is set out in the Court ’ s decision in Mohammed Hussein and Others v. the Netherlands and Italy ((dec.), no. 27725/10, § 45, 2 April 2013 ). In their third-party observations in the present case, the Italian Government added the following information: “ ... The protection system had 3,000 places available per year. However, the extraordinary influx of asylum seekers in 2013 led to an assessment concerning reinforcement of the SPRAR [ Sistema di protezione per richiedenti asilo e rifugiati ]. The resources allocated by the OPCM (Order of the President of the Council of Ministers) of 21 September 2011 (€9 million) made it possible to increase, from 2012, for one year, the reception capacity of the system to 700 units. Subsequently, 800 additional places were achieved with further resources (€5,000,000 allocated with the OCPC of 23 November 2012 n. 26). Subsequent further increases of 3,900 places have led, to date, to a total capacity of the SPRAR of 8,400 reception places. Last, in September 2013, because the landings continued, a new request for 8,000 additional places – compared to the mere 1,230 places hitherto available – was submitted to the SPRAR network. It therefore follows that, within the framework of the SPRAR system, the reception capacity that can be guaranteed at present is 9,630 third-country nationals in all. The consolidation of the SPRAR, owing to the expansion of its capacity and the allocation of permanent resources, represents a fundamental step in reinforcing and ensuring a firm basis for the reception system, with a view to proceeding from an emergency situation to a situation of normal management. The objective for the next three years, 2014 to 2016, is to further reinforce the SPRAR network by providing an effective capacity of 16,000 places... To that end, the Notice to local authorities concerning the selection of projects to be funded aimed at the reception of applicants for, and beneficiaries, of international and humanitarian protection for the period 2014 to 2016 was published in the Official Gazette of 4 September 2013, no. 207. At present, the 510 proposed activity projects are being evaluated. ” C. Recommendations of the Office of the United Nations High Commissioner for Refugees on important aspects of refugee protection in Italy ( July 2013 ) 47. The relevant passages of the UNHCR Recommendations on important aspects of refugee protection in Italy (July 2013) read as follows [1] : “ 1. General background ... An estimated 4-5 million third-country nationals, including 64,000 refugees live in Italy ... 3. Access to the asylum procedure Efforts were undertaken by the competent authorities, through a new online system and internal instructions, to expedite the registration procedure of asylum applications, to improve management of individual cases throughout the procedure, and to monitor and immediately address delays between the time a person expresses the intention to apply for asylum and the formal registration of an application. Despite these positive developments, there continued to be reports indicating that the registration of asylum applications is, in some cases, scheduled several weeks after the asylum-seeker has expressed the intention to apply. This practice also affects transferees to Italy under the Dublin Regulation, who, having previously transited through Italy without registering an asylum application, had applied for international protection in other European countries. This delay may result in late access to reception conditions, as well as a lengthier timeframe before their cases are determined. Furthermore, there are continuing reports of difficulties encountered in some Provincial Police HQs ( Questure ), where a proof of residence ( domicilio ) is requested for the registration of an asylum application. This may cause, in some cases, further delays in accessing the asylum procedure. It is also reported that information leaflets on the international protection procedure, are not being distributed systematically, as foreseen by law. Difficulties in accessing the asylum procedure also continue to be reported from Expulsion and Identification Centers (CIEs), due to lack of legal information and assistance as well as administrative obstacles. Moreover, the lack of standard procedures concerning asylum applications by persons detained in CIE have led, in some instances, to delays in the transmission of asylum applications to the competent Immigration Office. These delays may expose asylum-seekers to the risk of repatriation prior to consideration of their asylum applications, which could create the risk of refoulement. Since 2011, there have been instances in which Egyptian and Tunisian nationals, who had arrived in Lampedusa in an irregular manner by sea, often directly from their countries of origin, and who had expressed the wish to apply for asylum, were only admitted to the asylum procedure following interventions by Praesidium partners, NGOs or lawyers. Arrivals of these nationality groups have regularly been transferred to CIEs rather than Reception Centres for Asylum-Seekers (CARA), even in cases where the intention to seek asylum had been expressed prior to the transfer. According to recent observations by Praesidium partners, there also seems to be an increasing number of persons (mainly Eritrean, Somali, Afghan and Syrian nationals) who avoid fingerprinting in Italy and try to reach other European countries in order to apply for asylum there, reportedly due to poor reception conditions and integration prospects in Italy. With regard to the application of the Dublin Regulation, UNHCR notes that the procedures in Italy for the determination of the state responsible under the Regulation are very lengthy and regularly in excess of the timeframes stipulated in the relevant provisions. The procedures may last up to 24 months, seriously affecting the well ‑ being of asylum-seekers, including of persons with special needs and UASC. Reportedly, these long delays are due to limited human resources. As a result, some 1,000 persons hosted within the reception centers in Italy are either waiting for a decision on the determination of the state responsible under the [Dublin] Regulation or pending their transfer to the responsible Dublin State, aggravating the already strained Italian reception capacities. Following the European Court of Human Rights judgment MSS vs Belgium and Greece, no returns under the Dublin Regulation to Greece are being implemented in practice. However, asylum-seekers fingerprinted in Greece are still considered as ‘ Dublin cases ’ until a decision from the Dublin Unit declares Italy to be competent. Delays are observed to occur also in these cases. Recently, there has been a prioritization of some ‘ Dublin cases ’ hosted in Reception Centers for Asylum-Seekers (CARAs), for whom the determination of the state responsible under the Regulation had been pending for more than six months. Asylum-seekers returned to Italy under Dublin II are usually transferred to the main airports in Italy (Rome, Milan, with limited numbers also in Bari and in Venice). In principle, NGOs that manage information services are informed in advance about the arrival of ‘ Dublin cases ’ to provide information in order to activate the asylum ‑ procedure in Italy. The persons returned under the Dublin Regulation are issued, by the border police at the airport, an invitation letter to apply for asylum in the competent Questura, which is identified based on a number of criteria, such as place of previous asylum registration or availability of places in specific reception centres. In Rome, the asylum application is registered directly at the airport premises. Concerns about the operation of the Dublin system in the Italian context, as well as the application of Eurodac, are expressed also in the report of UN Special Rapporteur on the Human Rights of Migrants, which referred specifically to the impact of Dublin on the EU ’ s external border states. 4. The quality of the international protection determination procedure In 2012, the number of asylum applications decreased to 17,352, compared to 34,100 applications in 2011. While additional Sections of the Territorial Commissions for the recognition of international protection (hereinafter Territorial Commissions), the bodies competent for the asylum procedure in first instance, were established in order to cope with the increase of applications and the consequent backlog, waiting times for first instance decisions have further grown and vary significantly from one Territorial Commission to another. Delays are greater, where Territorial Commissions are located in large reception centers (Mineo, Crotone), or in large cities (Rome, Milan). Currently, as an average and based on UNHCR observation, an asylum-seeker may wait approximately 4 to 6 months from registration of the asylum application until the decision from a Territorial Commission. In some cases, waiting periods lasting over 12 months have been reported. UNHCR remains satisfied with the overall protection standards in the context of the asylum procedure and the work of the Territorial Commissions, including in terms of recognition rates for persons in need of international protection. Due consideration is paid to UNHCR positions and guidelines, for example in relation to specific countries of origin or to legal aspects, such as fear of persecution for reasons of membership of a particular social group. However, a mechanism of systematic quality monitoring, aimed at ensuring a harmonized approach in all Territorial Commissions and minimum quality standards, particularly on procedural aspects, still needs to be put in place, including standardized procedures for the identification and referral of asylum ‑ seekers with special needs, including children, victims of torture and victims of trafficking. As regards the Territorial Commissions, it should be noted that members are not required by law to possess prior experience and expertise in the field of asylum and they sometimes fill other positions during their tenure as members of Territorial Commissions. The specialization of decision-makers and interpreters are not adequately guaranteed through regular induction and compulsory trainings. Appeals against negative decisions of a Territorial Commission in first instance have to be made within 15 days from the date of communication of the decision, in cases in which the applicant is hosted within a CARA or CIE, and within 30 days in all other cases, to the geographically responsible Civil Court ( Tribunale ). Appeals have automatic suspensive effect except for a number of categories provided by law, in which the suspension of the legal effects of the negative first instance decision can be requested to the judge by the applicant. While official data is not available, lengthy delays in the judicial procedure from the date of an appeal to a decision by the courts are frequently reported, including in cases pertaining to the Dublin Regulation. Positive decisions by courts are directly enforced by the Police Immigration Office, which issues the permit of stay. UNHCR appreciates the efforts made by the Superior School of Magistrates to promote specialization of judges in the field of asylum. In 2012, UNHCR received some reports of cases in which asylum-seekers detained in CIEs were expelled to their countries of origin during the period foreseen by law to appeal a negative first instance asylum decision, or while waiting for a decision by the judge on their request for suspension of the legal effects of the negative first instance decision, made in conjunction with the appeal. Such practices could create a risk of refoulement for people who are in need of international protection. Free legal aid, foreseen by law in appeals, is not always guaranteed in practice in some tribunals. In Rome, the Bar Association continues to require that the appellant provides an income certificate, issued by the embassy of the relevant country of origin, despite the risks this could pose to the applicant and his or her family-members in the country of origin, and despite the fact that the law provides for free legal aid based on the applicant ’ s own declaration regarding his or her financial needs. 5. Reception conditions for asylum-seekers The arrival of some 63,000 persons by sea in 2011 led to a deterioration in reception standards for asylum-seekers, which continued throughout 2012 and in 2013. Among the arrivals some 28,000 persons, particularly third country nationals arriving from Libya, were channeled automatically into the asylum-procedure by the authorities, creating substantial demands on the reception system. Reception capacity had already - prior to 2011 – been considered insufficient to host asylum-seekers, when significant numbers of arrivals took place. To respond to this sudden increase in arrivals, in the context of the ‘ North Africa Immigration Emergency ’, an emergency reception plan was agreed upon by the Government and regional and local administrations, and its implementation entrusted to the Department of Civil Protection. Some 22,000 new arrivals, all third country nationals arriving from Libya and registered as asylum-seekers, were accommodated in hundreds of different reception facilities, most of which were managed by organizations with little or no experience. The emergency reception plan enabled the accommodation of a large number of asylum-seekers who had arrived in a short period of time. Asylum-seekers, however, did not have access to many of the minimum services foreseen by law for their reception. Moreover, the quality of reception measures, which were meant to be provided until the end of the ‘ state of emergency ’, did not improve significantly over time. The Monitoring and Assistance Group established by the Department of Civil Protection in July 2011 in order to support the implementation of the emergency reception plan was discontinued in October 2011 prior to its phasing out. Reception conditions deteriorated also in the government reception centers for asylum - seekers (CARAs), mainly due to overcrowding, as the turn-over from the centers was slowed down by the prolonged reception of groups of third country national asylum-seekers who had arrived from Libya within the context of ‘ North Africa Immigration Emergency ’, and by an increased number of asylum applications, resulting in a longer asylum procedures. The reception capacity was thus further strained and the Ministry of Interior has been struggling to identify spaces for the accommodation of newly arrived asylum-seekers ever since. Moreover, reception standards in government centers (CARAs, CDAs and CIEs) declined also because of serious funding constraints, contributing to a situation in which, since 2011, contracts for the management of these facilities have been awarded exclusively on the basis of the lowest-priced offer for the provision of services, with quality considerations not being taken sufficiently into account. Although sea arrivals from Libya came close to a complete halt by August 2011, no phasing - out strategy from the emergency reception plan was put in place for over a year. The exit strategy adopted in September 2012 foresaw, inter alia, that failed asylum-seekers, regardless of their continued presence in the emergency reception system, be granted a one year residence permit on humanitarian grounds, and based on a file review by the Territorial Commissions. At the beginning of 2013, the Ministry of Interior took over responsibility for the emergency reception plan from the Department of Civil Protection, and extended reception measures until the end of February 2013. Several thousand third country nationals, whose asylum applications had been rejected but who had received a one year residence permit on humanitarian grounds, left the reception facilities before this date. Those who were still staying in the reception facilities were paid a cash contribution of 500 EUR and their reception measures ended. However, the Ministry of Interior instructed the local Prefectures to extend reception measures for persons with special needs and asylum-seekers whose procedure was still pending. Official data concerning the socio-economic integration of this specific caseload are not available. Nevertheless, their self-reliance remains a concern after the end of the emergency reception plan. This is mainly because of the poor quality of reception services, the delayed clarification of their legal status, and, more broadly, because of the economic situation in Italy. Moreover, an Assisted Voluntary Return (AVR) programme for some 600 persons was introduced with significant delay and provided limited incentives and support for the return to their countries of origin. While Italy committed significant efforts and financial resources to respond to the unexpected number of sea arrivals in 2011, the emergency reception plan put in place in response to the ‘ North Africa Immigration Emergency ’ highlighted longstanding flaws in the reception system, including the lack of strategic and structural planning and the limits of an emergency approach. In UNHCR ’ s view, it illustrated the need for a consolidated and coordinated national reception system. The gaps which have emerged over time placed additional strain on the reception system as a whole, leaving Italy unprepared to respond adequately to emergency situations when they occur, as was the case in 2011. To manage the phasing-out of the emergency reception plan, a National Coordination Group was established at the end of 2012. It is chaired by the Ministry of Interior and comprises the Ministry of Labor, the Regions, the Italian National Association of Municipalities (ANCI) and the Italian Union of Provinces (UPI). While not a member, UNHCR has been regularly invited to attend the meetings of the Group since October 2012, as has IOM. The National Coordination Group brings together the most relevant institutional actors and was recently recognized as a permanent body, tasked to plan and coordinate interventions on reception and integration of asylum-seekers and refugees. Based on the recommendations of the Group, as part of the exit strategy from the emergency reception plan, the Ministry of Interior has pledged to increase the reception capacity of the System of Protection for Asylum-Seekers and Refugees (SPRAR) from 3,000 to 5,000 places, with the possibility to a further extension up to 8,000 in case of significant influxes. UNHCR welcomes the decision of the Ministry of Interior but underlines the need for a comprehensive reform of the reception system, which should also address post-recognition support to recognized refugees. In fact, although government centres and SPRAR projects (which can host both asylum ‑ seekers and recognized refugees), are able to provide for the reception needs of a significant number of asylum-seekers, support measures for recognized refugees remain vastly insufficient. The necessary reforms, which require strong political commitment and sound governance, should also aim to systematize those improvements to the reception system which have been carried out in recent years mainly through pilot projects and time - limited interventions. With regard to the reception of asylum-seekers, significant differences continue to exist in different parts of Italy, depending on the reception facilities and, more broadly, local practices. The practice of limiting reception in CARAs to a maximum of six months, which had been applied to asylum-seekers, irrespective of their ability to provide for themselves, and prior to having received a first instance decision on their applications within this period appears to have been discontinued. This being said, this development does not address the possible need for continued accommodation in reception facilities of asylum-seekers who, pending a decision on appeal against a negative decision, and while entitled to work, may be unable to secure an adequate standard of living, including accommodation, outside reception facilities. Italy has transposed the provision of the EU Reception Directive concerning the right to work of asylum-seekers more favourably than the minimum standards required by the Directive. According to Art. 11 of Legislative Decree No. 140/2005, if the asylum procedure is not completed within six months, the stay permit is renewed for another six months and the asylum-seeker is allowed to work. Pilot initiatives, including basic work-skills assessments, have been carried out in government centers in order to facilitate access to the labor market for asylum-seekers, but they have not been mainstreamed in the context of reception services. Support measures for job ‑ seeking concern mainly asylum-seekers for whom the asylum procedure exceeds six months in duration, such as under the Dublin Regulation procedure or when served with a first instance negative decision. Such support is absent in the CARAs, while it is foreseen in SPRAR projects. UNHCR has also continued to receive reports of instances in which asylum-seekers do not have immediate access to reception measures when they apply for international protection, but instead receive them only weeks or months later. The delays are the result of structural gaps and lack of capacity in the existing reception system, slow administrative procedures and problems in the registration of the asylum applications. Although local differences exist, alternative measures to provide for the subsistence of asylum-seekers are rarely available in case of delays. Time-limited financial support, foreseen in cases in which accommodation in reception facilities is delayed (Art. 6 Par. 7 of Legislative Decree No. 140/2005) is, to UNHCR ’ s knowledge, not provided. UNHCR is not aware of instances in which asylum-seekers have challenged these delays before a court. Dublin transferees, registered as asylum-seekers, generally have access to transit accommodation centers upon return to Italy, available in Milan (35 places), Rome (150 places), Venice (40), Bari (20). Beneficiaries of international protection, granted protection in Italy prior to their departure, however, do not have access to those centers, when returned under the Dublin Regulation. While additional transit accommodation places have been made available in Milan (25 places) and Rome (80 for adult men) for asylum-seekers arriving by air, these places are in practice insufficient as Dublin transferees may have to wait for some days at airports, until the transfer of other asylum-seekers from such transit accommodation centers to SPRAR projects or a CARA is effected. Furthermore, it may also happen that Dublin transferees, upon arrival in Italy, spend several days at airports until placed, even if a space in a reception center had been identified, at the moment Italy had declared its competence under the Dublin Regulation. Pursuant to Art. 8 of Legislative Decree No. 140/2005 and other relevant provisions, the specific needs of applicants and the members of their family must be taken into account for reception. Moreover, applications of asylum-seekers with special needs are, in principle, prioritized. Due to the lack of available places in dedicated facilities or SPRAR projects, the number of asylum-seekers with special needs who, despite their situation, have to remain in the CARAs during the asylum procedure, without assistance specific to their needs, has increased compared to previous years. This problem continues also after recognition and conferral of some form of protection. Gaps persist in the form of low levels of coordination among stakeholders, inability to provide adequate legal and social support as well as the necessary logistical follow ‑ up, as well as a poor referral. These problems have worsened to a certain extent since 2011, due to the general deterioration in reception conditions and budget cuts in the social welfare system. Asylum-seekers who have been granted a stay permit have the right and duty to enroll in the National Health System (NHS). This requirement is, in general, complied with by asylum - seekers hosted in SPRAR projects. However, asylum-seekers who stay on in the CARAs upon expiration of the initial period of 20 - 35 day foreseen by law, due to the limited number of available places in SPRAR projects, are not systematically provided with a stay permit, and cannot thus enroll in the NHS. Moreover, during the reception period in the CARAs, the management is required to provide services as per the Decree of the Ministry of Interior of 21 November 2008. The quality of these services, including the necessary support to access health care facilities outside the centre, varies in different parts of Italy and reflects the overall lack of harmonization in reception standards. Furthermore, some cases have come to UNHCR ’ s attention in which asylum ‑ seekers, including Dublin transferees, are not immediately issued the 3-month residence permit upon expiration of the mandatory period of reception within the CARAs, as foreseen by the law. In part to respond to longstanding gaps, at the end of 2012, the Ministry of Interior has agreed to set up, in the context of the Praesidium project, a pilot monitoring scheme in government centres. In each location where government centers are located, a monitoring Commission has been established, chaired by the local Prefecture and comprised of the Provincial Police HQs and Praesidium partner organizations. In UNHCR ’ s view, this is an initial attempt to develop more systematic monitoring and quality control systems, which would require a strong ownership by the Prefectures and willingness of the Ministry of Interior to ensure adequate follow ‑ up. ... RECOMMENDATIONS ... Reception conditions for asylum-seekers 23. UNHCR calls on the Italian Government to ensure adequate reception capacity for asylum-seekers throughout the country, including when significant numbers of arrivals occur, so that all asylum-seekers lacking the means to provide for themselves are able to access adequate reception, in line with provisions of the EU Directive on Reception Conditions. The reception system needs to be more flexible, so as to be able to respond to fluctuations in the numbers of asylum applications and to the actual length of the asylum procedure. 24. Reception conditions and standards in all reception facilities need to be harmonized at an acceptable level of quality. Given the structural differences between the various types of facilities (CARAs, CDAs, SPRAR projects, metropolitan area facilities and facilities established in the context of the emergency reception plan), the current approach could be reviewed in order to ensure adequate standards for all asylum-seekers. Such a review should also examine ways to avoid hosting asylum ‑ seekers in large facilities for long periods of time. 25. Measures are also needed to ensure services provided to asylum-seekers and refugees are tailored to their distinct needs, offering the former the assistance they need pending a decision on their status, whilst providing refugees with the support they require to facilitate their integration in Italian society. ... 27. UNHCR encourages the Italian authorities to establish mechanisms aimed at consulting asylum-seekers hosted in reception facilities and at facilitating their active participation, to introduce complaints mechanisms and to ensure that gender differences, age and individual needs are taken into account. 28. UNHCR calls upon the Italian Government to strengthen its existing monitoring and quality control systems and to consider introducing new, more efficient systems. ... ” 48. These recommendations were a follow-up to similar recommendations made by UNHCR in 2012, which the Court took into consideration in its decision in Mohammed Hussein ( cited above, § 43). D. Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, published on 18 September 2012, following his visit to Italy from 3 to 6 July 2012 (CommDH(2012)26) 49. This report was examined by the Court in its decision in Mohammed Hussein ( cited above, § 44). The Court deems it useful to refer here to the relevant passages: “140. The framework for the reception of migrants remains largely unchanged since the last visit of the Commissioner ’ s predecessor to Italy in May 2011. As noted in the 2011 report, asylum seekers in Italy can be referred to different types of accommodation, including CARAs ( Centri d ’ accoglienza per richiedenti asilo, open first-reception centres for asylum seekers), CDAs ( Centri di accoglienza, reception centres for migrants) and CPSAs ( Centri di primo soccorso ed accoglienza, first aid and reception centres). 141. Concerns have been raised about the conditions in some of the reception centres. For example, having visited a CARA during its visit in September 2008, the European Committee for the Prevention of Torture (CPT) criticised the fact that this centre was located in prison-like premises. While the Commissioner is aware that the Italian government defined minimum standards for tenders for the management of these facilities, interlocutors voiced their concern about the high variability in the standards of reception centres in practice, which may manifest itself in, for example: a numerical shortage and a lack of adequate training of staff; overcrowding and limitations in the space available for assistance, legal advice and socialisation; physical inadequacy of the facilities and their remoteness from the community; or difficulties in accessing appropriate information. 142. The inconsistency of the standards in reception centres, as well as the lack of clarity in the regime applicable to the migrants kept in them, became a major concern following the declaration of the ‘ North African emergency ’ in 2011. Under the emergency plan, the existing reception capacity was enhanced in co-operation with Italian regions in order to deal with the sharp increase in arrivals from the coasts of North Africa (34,120 asylum applications were submitted in Italy in 2011, a more than threefold increase compared to the 10,050 applications in 2010). The Commissioner acknowledges the strain put on the Italian reception system in 2011 and commends the efforts of the central and regional authorities to provide the additional reception capacity needed to cope with the effects of the significant increase in migratory flows. 143. However, the efficiency and viability of an emergency-based approach to asylum and immigration has been questioned by many interlocutors. The 2011 report had already expressed particular concerns over the provision of legal aid, adequate care and psychosocial assistance in the emergency reception centres, and over difficulties relating to the speedy identification of vulnerable persons and the preservation of family unity during transfers. These concerns are still valid, and human rights NGOs pointed to reports of significant problems at some of these facilities, in particular in Calabria and Lombardy. Delays and a lack of transparency in the monitoring of these centres have also been reported, both by NGOs and UNHCR. 144. As regards the effects of the end of the emergency period foreseen on 31 December 2012, the Commissioner welcomes the information provided by the Minister of the Interior that the examination of the outstanding asylum applications (estimated at around 7-8,000) will be concluded before that date. He was informed that 30% of applicants having arrived during the emergency period were granted protection. The Commissioner also commends the significant efforts of the Italian authorities to improve the examination procedure applied by Territorial Commissions, within which UNHCR is represented, noting however that the lack of expertise of some members of these commissions is perceived to be a problem. 145. However, the Commissioner understands that there will be no further support for recognised beneficiaries of international protection beyond this date, the authorities considering that the vocational training they will have received by then will allow them to integrate if they choose to remain in Italy. The Commissioner is concerned about this eventuality, in the light of the serious shortcomings he identified in the integration of refugees and other beneficiaries of international protection (see below). He received no information about the position of persons whose judicial appeals to a negative asylum decision will still be ongoing by that date. 146. As noted in the 2011 report, an additional feature of the Italian system is the SPRAR ( Sistema di protezione per richiedenti asilo e rifugiati ), a publicly funded network of local authorities and non-profit organisations, which accommodates asylum seekers, refugees or other beneficiaries of international protection. In contrast to CARAs and emergency reception centres, which tend to be big institutions hosting significant numbers of persons at one time, the SPRAR is composed of approximately 150 smaller-scale projects and was seen by the Commissioner ’ s interlocutors to function much better, as it also seeks to provide information, assistance, support and guidance to beneficiaries to facilitate socio-economic inclusion. 147. However, the capacity of this network, which represents a second level of reception after the frontline reception centres, is extremely limited (approximately 3,000 places) in comparison to the numbers of asylum seekers and refugees in Italy. As a result, asylum seekers are often kept in CARAs for extended periods of time, as opposed to being transferred to a SPRAR project after the completion of identification procedures as originally intended. In some cases this could last up to six months, whereas it has been reported to the Commissioner that asylum seekers received under the emergency reception plan have stayed in reception centres even beyond six months. 148. The Commissioner observes that the problem of the living conditions of asylum seekers in Italy has been receiving increasing attention in other EU member states, due to the growing number of legal challenges by asylum seekers to their transfer to Italy under the Dublin Regulation. He notes that a series of judgments by different administrative courts in Germany have suspended such transfers, owing notably to the risk of homelessness and a life below minimum subsistence standards. The European Court of Human Rights has also been receiving applications alleging possible violations of Article 3 as a result of Dublin transfers to Italy. ...” E. Information provided by the International Organization for Migration in a press briefing note of 28 January 2014 50. In a press briefing note dated 28 January 2014 the International Organization for Migration stated, inter alia, as follows: “ ... Over 45,000 migrants risked their lives in the Mediterranean to reach Italy and Malta in 2013. The arrivals are the highest since 2008, with the exception of 2011 - the year of the Libyan crisis. More than 42,900 landed in Italy and 2,800 landed in Malta. Of those who arrived in Italy, over 5,400 were women and 8,300 were minors – some 5,200 of them unaccompanied. Most of the landings took place in Lampedusa (14,700) and along the coast around Syracuse in Sicily (14,300). ‘ This year migration towards Italy ’ s southern shores tells that there has been an increase in the number of people escaping from war and oppressive regimes, ’ says José Angel Oropeza, Director of IOM ’ s Coordinating Office for the Mediterranean in Rome. ‘ Most of the migrants came from Syria (11,300), Eritrea (9,800) and Somalia (3,200). All of them were effectively forced to leave their countries and they have the right to receive protection under the Italian law, ’ he notes. Landings are continuing in January 2014. On 24 January, 204 migrants were rescued by the Italian navy in the Straits of Sicily and landed in Augusta, close to Syracuse. ‘ The real emergency in the Mediterranean is represented by those migrants who continue to lose their lives at sea. They disappear and their loss simply remains unknown. The identification of the bodies is still a humanitarian issue to be resolved. Numerous relatives of the victims are still waiting to know if their loved ones are among the bodies collected after October ’ s shipwrecks, ’ says Oropeza. Over 20,000 people have died in the past twenty years trying to reach the Italian coast. They include 2,300 in 2011 and around 700 in 2013. ‘ Migrants and refugees are not pawns on the chessboard of humanity. They are children, women and men who leave or who are forced to leave their homes for various reasons. The reality of migration needs to be approached and managed in a new, equitable and effective manner, ’ said Pope Francis, in his speech for the World Day of Migrants and Refugees celebrated on January 19th by the Holy See. ‘ We have become too used to seeing these people who are escaping from war, persecution, poverty and hunger as mere statistics. We urgently need to find ways to stop these people from dying at sea when all they are trying to do is to achieve a better life. We need to find ways to make migration safe and to give these people real choices, ’ says Oropeza. IOM works in Lampedusa, Sicily, Calabria and Puglia with UNHCR, Save the Children and the Italian Red Cross, as part of the Italian Ministry of the Interior ‑ financed Praesidium project, which aims to help irregular migrants arriving in Italy by sea.” | The applicants were an Afghan couple and their five children. The Swiss authorities had rejected their application for asylum and ordered their deportation to Italy, where they had been registered in the “EURODAC system”4 in July 2001. The applicants alleged in particular that if they were returned to Italy “in the absence of individual guarantees concerning their care”, they would be subjected to inhuman and degrading treatment linked to the existence of “systemic deficiencies” in the reception arrangements for asylum seekers in Italy. They also submitted that the Swiss authorities had not given sufficient consideration to their personal circumstances and had not taken into account their situation as a family. |
855 | Interception of communications, phone tapping and secret surveillance | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1982 and lives in Vela Luka. 6. He worked as a sailor on an ocean carrier for a shipping company headquartered in Croatia. A. Investigation 7. In 2007 the police and the State Attorney ’ s Office for the Suppression of Corruption and Organised Crime ( Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “ the OSCOC ”) investigated allegations of possible drug trafficking between Latin America and Europe via ocean carriers, involving several persons from Croatia. 8. On 23 March 2007, on the basis of a police report, the OSCOC requested an investigating judge of the Zagreb County Court ( Županijski sud u Zagrebu ) to authorise the use of secret surveillance measures to tap the applicant ’ s telephone and covertly monitor him. 9. The investigating judge granted the request and on the same day issued an order for the use of secret surveillance measures. Its statement of reasons reads as follows : “ On 23 March 2007 the OSCOC lodged a request, no. ..., for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of Ante Dragojević. The request refers to the [police] report of 2 March 2007, concerning the use of secret surveillance measures in respect of M.R., M.V., B.Ž. and I.B., alleging probable cause to believe that [ Ante Dragojević ] is also involved in the commission of the offence proscribed by Article 173 §§ 2 and 3 of the Criminal Code. The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means and the use of these measures in respect of Ante Dragojević is also necessary for satisfactory completion of the investigation, given that there are sufficient grounds for suspecting that he has also been involved in the commission of the offence in issue. It is therefore appropriate to temporarily limit the constitutional rights and decide as above. ” 10. In the course of the further investigation the OSCOC learnt that the applicant had been using another telephone number. On 25 May 2007 it asked the investigating judge to extend the use of secret surveillance measures to tap that number. 11. On the same day the investigating judge granted that request and issued an order, which contains the following statement of reasons: “ Based on an order of this court under the above number, the secret surveillance measures provided for in Article 180 § 1 (1) and (3) of the Code of Criminal Procedure are being conducted in respect of several persons for the offence proscribed under Article 173 §§ 2 and 3 of the Criminal Code. On 25 May 2007 the OSCOC lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of D.Š., and the secret surveillance measure under [Article 180 § 1] (1) of the above- cited provision in respect of Ante Dragojević, who was using the telephone number ... This measure was also requested in respect of another unidentified person who was using the number ... since the results of the previous use of secret surveillance measures showed that they had made contact in order to commit the offence in issue. The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means, so it is necessary to temporarily limit the constitutional rights and order the measures noted in the operative part of this order under points I and II. The OSCOC also asked that certain measures be terminated because they had not produced any result, and a decision was made accordingly as noted under point V of this order.” 12. On 2 July 2007 the OSCOC requested that the use of secret surveillance measures be extended for a further three months. 13. The investigating judge granted the request and on the same day issued an order based on the following statement of reasons: “Based on an order of this court under the above number, the secret surveillance measures provided for in Article 180 § 1 (1) and (3) of the Code of Criminal Procedure are being conducted in respect of several persons for an offence proscribed under Article 173 §§ 2 and 3 of the Criminal Code. On 2 July 2007 the OSCOC lodged a request for an extension of the use of secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of M.R., B.Ž. and Ante Dragojević on grounds of suspected conspiracy in drug trafficking between Latin America and Croatia. It appears, given their constant contacts, that the offence could be committed within a period of three months so it was proposed that the use of measures be extended for that period. The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means and given the circumstances of the offence it is necessary to extend the use of [secret surveillance] measures in order to achieve satisfactory completion of the investigation and obtaining of evidence. It is therefore decided accordingly as noted in the operative part of this order.” 14. On 6 August 2 007 the OSCOC requested the investigating judge to discontinue the use of secret surveillance measures in respect of the applicant on the grounds that the results of the investigation did not justify further secret surveillance. 15. The investigating judge granted the request and ordered the discontinuation of secret surveillance on 7 August 2007. 16. On 17 September 2007 the OSCOC made a new request for secret surveillance in respect of the applicant. 17. On the same day the investigating judge issued a secret surveillance order with the following statement of reasons: “ By orders under the above number secret surveillance was ordered in respect of Ante Dragojević (on 23 March 2007 and discontinued on 7 August 2007), and in respect of ... On 17 September 2007 the OSCOC lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of Ante Dragojević, B. Ž. and M.M. for a period of two months in connection with offences proscribed under Article 173 §§ 2 and 3 of the Criminal Code, and for the discontinuation of secret surveillance in respect of N.I and an unidentified person. In their request [the OSCOC ] submits that the investigation shows that there is a possibility that these individuals could contact each other again and that they could contact N.I., who travelled to Latin America and is expected to stay there for ten months. [The OSCOC ] therefore considers that by resuming the use of secret surveillance relevant information for the further investigation could be obtained. On the other hand, there has been no communication on the telephone numbers of N.I. and the unidentified person so [the OSCOC ] proposes that the secret surveillance in that respect be discontinued. The investigating judge finds in the case in issue that it is necessary to temporarily limit the constitutional rights of the above-mentioned individuals since investigation by another means would not be possible. It has therefore been decided as noted under points I and II, while at the same time [certain] measures have been discontinued as noted under points III and IV of this order.” 18. After further preliminary investigation, on 16 January 2009 the applicant was arrested and detained on suspicion of drug trafficking. 19. The following day the Dubrovnik Police Department ( Policijska uprava Dubrovačko-neretvanska ) lodged a criminal complaint with the Dubrovnik County State Attorney ’ s Office ( Županijsko državno odvjetništvo u Dubrovniku; hereinafter: the “State Attorney ’ s Office”) against the applicant and another person on charges of drug trafficking. 20. On the same day the applicant was questioned by an investigating judge of the Dubrovnik County Court ( Županijski sud u Dubrovniku ). He stressed that it was true that he worked on an ocean carrier between Latin America and Europe but denied that he had anything to do with any drug trafficking. 21. After the questioning the investigating judge opened an investigation in respect of the applicant and several other persons on suspicion of drug trafficking. The investigating judge also remanded the applicant in custody. 22. During the investigation the investigating judge questioned several witnesses and obtained the relevant results and analyses of the use of secret surveillance measures, as well as evidence obtained following a number of searches conducted during the investigation. Throughout the proceedings the applicant was remanded in custody. B. Proceedings on indictment 23. After the completion of the investigation, on 10 March 2009 the State Attorney ’ s Office indicted the applicant and two other persons in the Dubrovnik County Court on charges of drug trafficking. The applicant was also indicted on charges of money laundering. 24. On 11 March 2009 a three-judge panel of the Dubrovnik County Court presided over by judge Z.Č. extended the applicant ’ s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision in respect of the applicant reads: “This panel considers that the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure in respect of the accused Dragojević and V. should be extended because the type and quantity of drugs which are the subject of the indictment, and the manner of commission [of the offence], indicate particularly grave circumstances of the offence for which the pre-trial detention should be extended” 25. On 13 March 2009 the applicant ’ s defence lawyer asked the Dubrovnik County Court for access to and a copy of the audio recordings obtained by the use of secret surveillance measures. 26. The request for access to the recordings was granted on 16 March 2009. 27. On 16 March 2009 the applicant challenged the decision on his pre-trial detention before the Supreme Court ( Vrhovni sud Republike Hrvatske ). 28. On 18 March 2009 the applicant also lodged an objection against the indictment, arguing, inter alia, that the results of the secret surveillance measures did not suggest that he had been involved in the offence. 29. On 30 March 2009 the Supreme Court allowed the applicant ’ s appeal against the detention order of 11 March 2009 (see paragraphs 24 and 27 above) on the grounds that the first-instance court had failed to state any reasons why the applicant ’ s detention should be extended under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending ). Without releasing the applicant, it therefore ordered that the matter be re-examined. 30. The Dubrovnik County Court complied with that order and on 6 April 2009 a three-judge panel of that court, presided over by Judge Z.Č., extended the applicant ’ s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads: “The fact that the defendant Ante Dragojević is a reoffender, who has been sentenced by a final judgment of the Split Municipal Court no. KML-160/02 of 10 July 2003, a final judgment of the Korčula Municipal Court no. K-33/05 of 25 May 2006, and a final judgment of the Korčula Municipal Court no. K-68/07 of 10 December 2007, suggests that his previous behaviour has not been in compliance with the law and that there is therefore a risk that, if at large, he might reoffend. Accordingly, this court considers that his detention should be extended under Article 102 § 1 (3) of the Code of Criminal Procedure. Furthermore, this panel considers that the detention of Ante Dragojević should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure since the type and quantity of the drug which is the subject matter of the charges and the manner of execution [of the offence] suggest that the circumstances of the offence were particularly serious and thus warrant his further detention. To be specific, cocaine is a hard drug and forty kilos of it is not an insignificant amount. Such a quantity could be distributed in a number of single doses and thus endanger the health of a number of people, particularly young people. Having regard also to the international character of the offence, and the recorded EUR 80,000 from the proceeds of the crime which surpasses the usual circumstances associated with such offences, and the criminal resolve and engagement necessary to commit the offence charged, [the court considers] that the detention should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure.” 31. On 27 April 2009 a three-judge panel of the Dubrovnik County Court dismissed the applicant ’ s objection against the indictment as ill-founded (see paragraph 28 above) on the grounds that there was sufficient suspicion to warrant sending the case for trial. 32. The applicant ’ s pre-trial detention was further extended by a three-judge panel of the Dubrovnik County Court, presided over by Judge Z.Č. on 5 June 2009, which reiterated the same reasons as in its previous decision. 33. Meanwhile, Judge Z.Č., who had presided over the panels extending the applicant ’ s pre-trial detention (see paragraphs 24, 30 and 32 above), assumed responsibility for the applicant ’ s case as president of the trial bench of the Dubrovnik County Court. 34. At hearings held on 16 and 17 June 2009 the applicant pleaded not guilty and the trial bench heard evidence from several witnesses. 35. The applicant also applied to have the results of the secret surveillance measures excluded from the case file as unlawfully obtained evidence on the grounds that the orders for their use had not been sufficiently reasoned and had thus been contrary to Articles 180a, 181 and 182 of the Code of Criminal Procedure (see paragraph 55 below). 36. In a short oral explanation and ruling out the possibility of appeal against his decision, the president of the trial bench dismissed the applicant ’ s request as ill-founded. The trial bench then examined the evidence obtained by secret surveillance. It also decided to obtain further evidence proposed by the prosecution and the applicant, and adjourned the hearing. 37. On 4 August 2009 a three-judge panel of the Dubrovnik County Court, composed of judges P.M., E.Č. and M.V., extended the applicant ’ s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) reiterating the reasons stated in the previous decisions on his detention. 38. On 25 August 2009 Judge Z.Č., referring to the Court ’ s case-law and the case-law of the Constitutional Court ( Ustavni sud Republike Hrvatske ), asked to withdraw from the case as president of the trial bench on the grounds that his previous involvement in the case, as president of the panels which had extended the applicant ’ s pre-trial detention, could raise doubts about his impartiality. 39. Following Judge Z.Č. ’ s request, on 26 August 2009 the President of the Dubrovnik County Court asked the Supreme Court to transfer the trial to another court since all the judges of the Criminal Division of the Dubrovnik County Court had already taken part in the applicant ’ s case. 40. On 9 September 2009 the Supreme Court dismissed that request on the grounds that there were no reasons to doubt the impartiality of the Dubrovnik County Court judges. It held that the mere fact that a judge had presided over the panels extending the applicant ’ s detention could not raise any issue of his impartiality since the questions to be decided when the detention was extended differed from those which the judge had to decide when examining the case on the merits. There were also no reasons to doubt the impartiality of Judge Z.Č. within the meaning of Article 36 § 2 of the Code of Criminal Procedure (see paragraph 55 below). 41. The applicant ’ s detention was further extended on 1 October 2009 by a three-judge panel in which Judge Z.Č. sat as a member of the panel, relying on Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) and reiterating the reasons from the previous decisions on detention. 42. At a hearing on 26 November 2009 the trial bench questioned several witnesses and the defence again sought to have the evidence obtained by secret surveillance excluded from the case file as unlawfully obtained evidence. Ruling out the possibility of appeal, the president of the trial bench dismissed the request as ill-founded. The trial bench thus examined the evidence obtained by the use of secret surveillance measures. 43. On 3 December 2009 a three-judge panel of the Dubrovnik County Court, composed of judges P.M., S.V. and M.V., extended the applicant ’ s detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the reasons stated in the previous decisions. 44. At a hearing on 17 December 2009 the applicant pleaded not guilty and denied all the charges against him. The parties gave their closing statements and the trial bench concluded the hearing. 45. On 18 December 2009 the Dubrovnik County Court found the applicant guilty on charges of drug trafficking and money laundering and sentenced him to nine years ’ imprisonment. The judgment was based on an analysis of the applicant ’ s defence and the statements of his co-accused, as well as on the statements of witnesses, evidence obtained through numerous searches and seizures and the use of secret surveillance measures. 46. As to the refusal to exclude the latter evidence from the case file, the Dubrovnik County Court noted: “The court found that the defence of the accused Ante Dragojević was unconvincing, contradictory and aimed at avoiding his criminal responsibility .... The court examined the audio recordings (CD) of the conversations between the accused and witnesses I. Ž. and M.R. after it had found that the recordings had been made pursuant to the orders of the investigating judge of the Zagreb County Court no. Kir-Us-14/07 authorising the telephone tapping. These were the reasons why the court dismissed the request made during the proceedings that these recordings be excluded from the case file as unlawfully obtained evidence. [Moreover] the court considered them to be lawful and acceptable evidence obtained pursuant to valid court decisions. This court also refused the request by the defence to examine the case files of the Rijeka County Court no. Kir-Us-1/09 and the Zagreb County Court no. Kir-Us-14/07 [concerning the use of secret surveillance], because it considered those requests irrelevant and obsolete for the same reasons referred to in the decisions concerning the requests for exclusion of the secret surveillance recordings from the case file. As to the request that the secret surveillance orders be excluded from the case file as unlawfully obtained evidence on the grounds that they did not contain an assessment of the likelihood that the accused themselves or jointly with other persons had committed one of the offences proscribed under Article 181 of the Code of Criminal Procedure, and that they did not contain an assessment of whether the investigation could be conducted by other means, this court considers that this is not correct because the orders were sufficient and well-reasoned and eventually resulted in an indictment being lodged [against the accused]. In any event, as to the request by the defence that the secret surveillance orders be excluded from the case file as unlawfully obtained evidence, it should be noted that these are not evidence but court decisions so they cannot be excluded from the case file as unlawfully obtained evidence. And as regards the evidence obtained on the basis of these orders, this court considers that there was no breach of the Code of Criminal Procedure and therefore it does not consider them to be fruit of the poisonous tree but lawfully obtained evidence.” 47. On 27 January and 3 February 2010 the applicant lodged an appeal against the first-instance judgment with the Supreme Court. He argued, inter alia, that the secret surveillance orders had not been properly drafted as required under the Code of Criminal Procedure given that they had not given a proper assessment of the likelihood that the offences in issue had been committed, or of the circumstances indicating that the investigation could not be conducted by other means. In his view, this had led to his unlawful surveillance and therefore any evidence thus obtained could not be used in the criminal proceedings against him. He challenged, further, the basis of the first-instance court ’ s reasoning in its judgment, namely, the evidence obtained through secret surveillance. The applicant also requested the Supreme Court to quash the first-instance judgment and order that a retrial be held before a differently composed trial bench. 48. The Supreme Court dismissed the applicant ’ s appeal as ill-founded and upheld the first-instance judgment on 23 September 2010. It held that all relevant facts had been sufficiently and correctly established, that the applicant had had every opportunity to participate effectively in the proceedings and that the first-instance court had given sufficient reasons for its decisions. As to the alleged unlawfulness of the applicant ’ s secret surveillance, the Supreme Court noted: “As regards the secret surveillance orders, contrary to what is alleged in the appeal, these impugned orders contain sufficient reasons as to probable cause to believe that the offence under Article 173 § 2 of the Criminal Code was committed, as well as to the fact that the investigation into this offence could not be conducted by other means and that [such investigation] would be extremely difficult, which is evident from the fact that the investigating judge did not refuse to issue the orders. In fact he issued the orders as required under Article 182 § 2 of the Code of Criminal Procedure. It follows that the appellant ’ s allegation that the impugned orders of the investigating judge do not contain sufficient reasons, is erroneous and that they are therefore not unlawfully obtained evidence within the meaning of Article 9 § 2 of the Code of Criminal Procedure.” 49. The applicant subsequently lodged a constitutional complaint with the Constitutional Court on 21 October 2010 arguing, inter alia, that the trial bench had lacked impartiality because of the previous involvement of Judge Z.Č. in the case; that his secret surveillance had been unlawful on account of the failure of the investigating judge to issue an order in the manner required under the relevant law; and that the use of the evidence thus obtained for his conviction had rendered the entire proceedings unfair. 50. On 25 May 2011 the Constitutional Court dismissed the applicant ’ s constitutional complaint as ill-founded. It endorsed the reasoning of the Supreme Court with regard to the use of secret surveillance measures and the use of evidence thus obtained in the proceedings. As regards the lack of impartiality of the trial bench, the Constitutional Court observed : “In the case in issue, the mere fact that the president of the trial bench had on three previous occasions ... sat on a panel which extended the appellant ’ s pre-trial detention cannot in itself be a reason for disqualifying the judge from deciding the merits of the case. There is a significant difference between the decision on detention and the decision on the guilt of the appellant. When ruling on an extension of detention, a member of a panel of judges decides only the legal issues on which the application of the procedural law concerning the so-called causae arresti (Article 102 of the Code of Criminal Procedure) depends. Accordingly, he or she does not assess all the legal and factual aspects of the charges. The charges will be assessed in the first - instance proceedings. However, the appellant has not advanced any reasons why Judge Z. Č. ’ s participation in the panel [of judges] which had extended his detention could be considered to have led him to form a previous conviction as to his guilt.” 51. The decision of the Constitutional Court was served on the applicant ’ s representative on 13 June 2011. | This case principally concerned the secret surveillance of telephone conversations of a drug-trafficking suspect. The applicant alleged in particular that the investigating judge had failed to comply with the procedure required by Croatian law to effectively assess whether the use of secret surveillance was necessary and justified in his particular case. |
143 | Sexual abuse | THE BACKGROUND TO THE CASE 10. The applicants are a brother (X, “the first applicant”) and his two sisters (Y, “the second applicant”, and Z, “the third applicant”) who were born in Bulgaria. X was born in 2000, Y was born in 2002 and Z was born in 2003. They were abandoned by their mother and were initially placed in institutions for very young children and then in a residential facility for children without parental care located in a village in the Veliko Tarnovo region (“the orphanage”). 11. In 2010 they were placed on the list of children eligible for full adoption and subsequently on the list for international adoption. In 2011 an Italian couple applied to adopt them through the intermediary of a specialised association called Amici dei Bambini (“AiBi”) based in Milan. The prospective adoptive parents both worked in a cooperative specialising in psychiatric and social assistance and were aged between 45 and 50 at the time. They travelled to Bulgaria in January 2012 and met the applicants there several times before going on to adopt them. 12. The adoption order was issued and in June 2012 the applicants, then aged twelve, ten and nine respectively, moved to Italy. 13. A first follow-up report on the adoption, drawn up by the association AiBi on 27 September 2012, found that the children were settling in well with the family, apart from a few incidents in which the younger girl, Z, had been aggressive to the mother, whom she had bitten. The three children had resumed their schooling and only the eldest, X, was having difficulties in school. THE APPLICANTS’ ALLEGATIONS OF ABUSEThe first disclosures by the applicants The first disclosures by the applicants The first disclosures by the applicants 14. On 30 September 2012, following an argument with her brother, the third applicant complained about his behaviour towards her, accusing him of touching her sexually. Alerted by this complaint and by the disclosures made to them by the three children on that occasion, the adoptive parents contacted the association AiBi. On 2 October 2012 a meeting took place with a psychologist and an educational adviser from the association. A report was drawn up on that occasion (see paragraph 53 below as regards the subsequent sending of a copy of this document to the Bulgarian authorities). The applicants’ parents, who claimed that the report had been falsified, subsequently lodged a criminal complaint. The outcome of that complaint has not been specified, but a note written by the police reveals that the signatures on the report did not correspond to the sample signatures provided by the persons designated as the document’s authors, and that some paragraphs had been added. According to the report, the children had told their parents that they had engaged in certain sexual practices among themselves, which the parents had not witnessed. As they were extremely upset and traumatised by these disclosures, the parents considered sending away the first applicant, whom they considered to be responsible for the situation. The psychologist recommended instead that they seek psychological assistance. With some hesitation the parents agreed, although the father wanted the sessions to be held away from the city where they lived in order to protect their privacy. The three children, who initially met the educational adviser on their own, said that they had been “silly” because they had played a game “that [they] shouldn’t have played” but which all the children in the orphanage had played. They expressed fears that the first applicant would be sent back to Bulgaria. 15. After enquiring about specialists trained to deal with this type of situation, the parents had the children examined by two psychologists specialising in child abuse cases who were based in a relational therapy centre (“the RTC”) in a town more than 100 km from their home. Meetings were held between the psychologists, the parents and the children during October and November 2012, and regular counselling sessions were then arranged for the children. The report of 31 October 2012 by the psychologists from the RTC 16. An initial report concerning the applicants, entitled “Psychologists’ notes”, was drawn up by the psychologists on 31 October 2012. The report does not contain a verbatim record of the questions asked and the applicants’ statements, but rather represents a summary record which also includes the psychologists’ comments (for a more detailed account of the initial conversations with the psychologists, see the police record summarised in paragraphs 23 et seq. below). According to the report, the psychologists had conversations first with the parents and then with the children on 11 and 18 October 2012. The conversations with the applicants, described as “therapy sessions”, were conducted using the methods recommended for children who have been victims of abuse (see paragraph 22 below), and were videoed. 17. According to the report, the parents stated that for the first three months, until the incident of 30 September, they had had no problems with the children, although they said that the younger girl, Z, used to lock the door when she was in the bathroom and had bitten her mother. 18. The report stated that the first applicant, who talked to the psychologists next, had difficulty expressing himself in Italian and asked for his adoptive father to be present. The latter helped the child to explain what he wanted to say. 19. According to the report, the first applicant stated that at night one of the other boys in the orphanage, D., used to molest some of the younger children; the others had to watch, sitting in a circle as though in some sort of ritual. In the passages quoted from the first applicant’s account, he described the acts in question using few words. He said, for example, that “[D.] made [the children] lick his bottom and feet and then hit [them]”, and that “he did a wee in [their] mouths and then behind”. The first applicant said that he had told the director of the orphanage, whom he called E. (as regards the confusion surrounding this name, see paragraph 32 below), about these incidents and that she had assured him that she would call the police if it happened again. He admitted having played games of a sexual nature with his sisters, even after their arrival in Italy, saying “I did a wee in Z’s mouth and licked her bottom, then Y told me to touch her where she does her wee, then she did it to me, and I put my finger in her bottom”. He said several times “It’s my fault”. He added that he had watched his sister, the second applicant, “doing sex” with a boy from the orphanage. 20. According to the report, the psychologists spoke to the second and third applicants together. In reply to a question from one of the psychologists concerning possible problems at home, Y said: “X touched my bottom and then did it to Z, and did a wee in her mouth”. 21. With regard to the second applicant the report stated as follows: “Y seems to have viewed it all as a game and did not attach negative connotations to the events, saying ‘I saw M. and B. doing sex and I did it with [my brother]’”. However, the report mentioned that both sisters appeared worried about their brother, who had been the victim of violence on several occasions, saying “X got hit more, I wasn’t hit so much”. The report did not say who had hit the children. It stated that the third applicant had spoken a little later in the discussion, describing another situation in which the children from the orphanage had apparently been taken to a “discotheque” where they had danced and where some men had then arrived and “played” with them in rooms on the premises. The third applicant stated that she was the only one who had put up a struggle, and said “I cried out loud and hit him”. 22. According to the report, during the conversations the applicants used dolls given to them by the psychologists to mimic the scenes they were describing. The psychologists concluded that the children were able to distinguish between fantasy and reality and between truth and lies, and that their accounts appeared credible and free from outside influence and were coherent in terms of places and times. The report stated that, as the children considered this type of behaviour to be normal or at least acceptable, the psychologists were recommending sessions of psychotherapy, together with educational support for the parents. The police record of the conversations with the psychologists, based on the video-recordings 23. The applicants’ first conversations with the psychologists were also the subject of a written record drawn up on 25 March 2013 by the police attached to the office of the R. public prosecutor for minors, on the basis of the video-recordings made by the psychologists (see paragraph 81 below). This record appears more detailed than the psychologists’ report of 31 October 2012. 24. It transpires from this record that the applicants’ father was present at the conversation of 11 October 2012 with the first applicant and spoke occasionally. 25. According to the record, during that conversation the first applicant said that at night one of the older boys, D., used to switch on the lights and tell the children to sit on the floor. Being unable to explain properly what had happened, the first applicant showed, using the dolls, how a girl had licked the intimate parts of a boy’s body on D.’s instructions. D. had reportedly also struck the girl in the face. He had told the other children not to watch but the first applicant had nevertheless taken a look. The boy had reportedly been naked but the other children had not. The first applicant said that he had informed the director, E. (as regards the confusion surrounding this name, see paragraph 32 below), who had apparently scolded D. and threatened to call the police if it happened again. According to the first applicant’s account, D. used to ill-treat all the other children but the educators did not notice anything. Thus, D. had reportedly forced a boy to lick his feet and had struck him. He had hit the first applicant, had “done a wee in [his] mouth” and “a wee in [his] bottom while [the first applicant] was asleep” and had “put his willy in [the first applicant’s] bottom, which [had] hurt”. D. had only done that to him and to one little girl. The first applicant said that another boy, G., had also “done a wee in [his] mouth and [his] bottom” and had hit the other children. The women from the orphanage had said that it was wrong to hit people. 26. According to the record, the first applicant said that after their arrival in Italy he had “done a wee in [his sister Z’s] mouth and bottom” and that his other sister, Y, had told him to touch her intimate parts and he had told her to do the same to him. Lastly, he added that in Bulgaria G. had “done sex” with his sister, Y, against the latter’s wishes. 27. The psychologists spoke next to the two sisters. It appears from the record that the father remained in the room during the conversation but did not speak. The second applicant recounted the incident of 30 September 2012. She said that she had asked her brother to “touch [her] bottom” and that he had “put his finger in [her] bottom”. He had done the same thing to their little sister and had “done a wee in [her] mouth”. The third applicant confirmed what her sister had said. 28. According to the record, when asked by one of the psychologists whether similar things had occurred in the orphanage in Bulgaria, the second applicant said that they had, and that she had “done sex” with her brother and other children. She mentioned two boys, D. and G., but said that she had not done anything with them. Both girls said that they had been hit but that it was mostly their brother who had been hit. The second applicant added that she had seen a boy and girl, B. and M., “doing sex” and that her brother had told her that they could do it too. 29. The record further stated that during a second conversation with the two sisters on 18 October 2012 a psychologist had asked the second applicant to share what she had said to her father about a discotheque. Y told her that she had danced with a boy, Br., in the discotheque and that her brother and sister had also danced in pairs with other children. Afterwards, there had been cake and they had gone to bed. The psychologist asked what they had done then. Y replied, using the dolls to help her, that she had “done sex” with the boy with whom she had danced, that he had been on top of her and that it had hurt. She said that she had pushed him at one point and that he had held her mouth closed. She told the psychologist that she had subsequently done the same thing with other boys and said that they had gone to the discotheque three times. 30. The third applicant said that no one had done these things with her and that she had shouted to her sister and Br. that it was wrong. Both sisters said that the other girls in the orphanage, even the youngest ones, used to do the same things. 31. The police record also made reference to a conversation held on 5 November 2012 with the first applicant in the presence of his father, to whom he had apparently made fresh disclosures. The psychologist began by reassuring the first applicant that it was not he who was naughty but rather the grown-ups who had taught him to do “certain things”. The first applicant then mentioned a man, N., and another called Ma. who he said had hit his sister with a stick. 32. According to the record, the psychologist asked the child if he could remember what the “grown-ups” used to do in the orphanage. The first applicant replied that they had gone several times to a discotheque and that the grown-ups had danced with them. His sister Y had told him that N. had forced her to “do sex” in the bathroom. The first applicant said that he had told E.D., one of the welfare assistants in the orphanage (initially referred to mistakenly as the director, see paragraphs 19 and 25 above), who had spoken about it to the director. The first applicant said that N. had promised not to do these things any more but had nevertheless done them again. 33. The applicants’ father then said that N., who he thought was one of the employees of the orphanage, had first abused the first applicant and then other children, and that other adults had also been involved. The first applicant then named those adults as K., Da., O. and P. 34. According to the record, the first applicant said that N. had forced him to “do sex” in the bathroom, had put his penis “in [the first applicant’s] bottom” and had “done a wee in [his] mouth”. He said that K. and Da. had done the same thing to him. He added that some of the “ladies” from the orphanage “used to do sex” with the children; he said that he had done it with one of them, that he had cried, and that she had hit him. Lastly, he stated that the police had come once to the orphanage and once to the school to talk to the children. However, he had not said anything as these things had not happened again. The calls made by the applicants’ father to Telefono Azzurro 35. On 6 November 2012 the applicants’ father contacted the Italian helpline for children in danger, managed by Telefono Azzurro, a public ‑ interest association. According to the detailed record of the conversation provided by the counsellor, the father stated that the applicants had told the psychologists with whom they were having sessions that they and all the children in the orphanage where they had lived in Bulgaria had been subjected to what the father described as serious sexual abuse. He said that the applicants had identified eight adults as the perpetrators of the alleged abuse: five men who had performed various tasks in the institution and three women who looked after the children. He reported that the applicants had also mentioned abuse and what he described as deviant sexual practices on the part of adults from outside the orphanage, which had allegedly taken place in a kind of discotheque during holidays organised by the orphanage. According to the father, the applicants had also said that violence and sexual abuse among the children, which involved the older children ill-treating the younger ones, had occurred systematically in the orphanage at night, when the children had been left unsupervised by the staff, who apparently slept one floor higher up. 36. The first applicant had reportedly said that he had been abused for the first time at the age of six and had been raped by one of the workers in the orphanage, a certain N. He said that he had complained to the director, who had apparently called the police. However, he had withdrawn his accusations when questioned by the police, as N. had threatened him and struck him in the face. 37. Again according to the record, the applicants’ father sought advice as to what action to take. The possibility was raised of informing the public prosecutor’s office in Milan, where the association AiBi, which had acted as an intermediary in the adoption process, was based, and contacting the Italian Commission for Intercountry Adoption ( Commissione per le Adozioni Internazionali – “the CAI”) in Rome, as the central authority designated under the Hague Convention on Protection of Children and Co ‑ operation in Respect of Intercountry Adoption. The applicants’ father said that he did not wish to involve the judicial authorities at the family’s place of residence, in order to preserve the children’s anonymity. 38. The applicants’ father called the helpline again on 15 November 2012 and said that, on the advice of a lawyer and a prosecutor whom he knew, he had decided against applying to the Italian judicial authorities since, in his view, they did not have jurisdiction to deal with the case and he did not want to interfere with the family’s privacy. He said that he had reported the children’s disclosures to a representative of the association AiBi in Milan, who had told him that she had never heard of such a serious case and that she would inform the “local authorities”, without specifying which ones. 39. The applicants’ father asked whether Telefono Azzurro could alert the media, but the counsellor drew his attention to the risk to the family’s private life and added that it was important at this stage to bring the case to the authorities’ attention. 40. The applicants’ father called again on 20 November 2012 and said that he had tried calling a child protection helpline in Bulgaria and, following the advice given to him, had sent an email to the Bulgarian State Agency for Child Protection. However, he had received no reply (see paragraph 42 below). He said that the applicants had recounted further episodes of abuse in which children from the orphanage had allegedly been subjected to what he described as perverted sexual practices and that they had identified ten individuals – seven men and three women – as the perpetrators. 41. During a further call to the helpline on 26 November 2012 it was agreed that Telefono Azzurro would report the case to the Milan public prosecutor’s office. The applicants’ father would contact the Italian CAI and the Bulgarian Ministry of Justice, as the central authorities responsible for intercountry adoption in the two countries. The reports made to the Bulgarian authorities 42. On 16 November 2012 the applicants’ adoptive father sent an email to the Bulgarian State Agency for Child Protection (“the SACP”), asking for a telephone number to call in order to report abuse in an orphanage. He did not provide any details or even mention the name of the institution in question, but his own name featured in his email address. 43. The same day the association Telefono Azzurro sent an email to the Nadja Centre, a Bulgarian foundation specialising in the protection of at ‑ risk children and responsible for running the national helpline, informing it that it had been contacted by an Italian national who had adopted three children in Bulgaria and who wished to lodge a complaint of serious abuse of his children. The message did not contain the applicants’ names or any details by which they could be identified. On 20 November the Nadja Centre forwarded this message to the SACP. On 23 November the latter informed the Bulgarian Ministry of Justice about the matter, stating that it could not conduct any checks as it did not have the children’s names or the name of the institution in question. The SACP requested the Ministry to open an inquiry within the scope of its powers. 44. In a letter of 23 November 2012, which was written in Bulgarian and was scanned and sent by email to the applicants’ father on 26 November 2012, the SACP told him that it had been informed of his report of alleged abuse but that it needed additional information in order to be able to carry out checks, and in particular the name of the institution in question and the children’s Bulgarian names. The father wrote back saying that he could not understand the email and asking for it to be sent as a Word file so that he could have it translated. There was no follow-up to this correspondence by either side. The complaints made to the Italian authorities 45. On 22 November 2012 the applicants’ parents sent a complaint to the CAI setting out the facts referred to in the report of the psychologists from the RTC dated 31 October 2012 and those reported to Telefono Azzurro (see paragraphs 16-22 and 35-41 above). In particular, they gave the first names of seven men, including N., and four women, who they said had been named by the applicants as the abusers. Some of these individuals, they said, had been members of the orphanage staff while others had come from outside. The parents alleged that groups of children from the orphanage had been taken “on holiday” to a village where they had visited a place they called a “discotheque”, and where they had been molested and sexually assaulted by individuals from outside the orphanage. The first applicant had allegedly been forced to watch his sisters being raped. The parents alleged that the children, left unsupervised during the night at the orphanage, had subsequently repeated with the younger children the behaviour of which they had themselves been victims. 46. On 1 December 2012 the association Telefono Azzurro sent the Milan public prosecutor the records of the telephone conversations with the applicants’ father, a letter from him setting out the alleged facts, and the report of 31 October 2012 by the psychologists from the RTC. 47. In his letter the applicants’ father alleged that all the children in the orphanage had been subjected to abuse by employees (the names of eleven employees – eight men and three women – were given), that during stays at a holiday camp the children had been taken to a “discotheque” where staff members and people from outside had forced them to submit to what he described as perverted sexual practices, that the first applicant had been forced to watch his sisters being raped, and that at night the older children had copied this behaviour and abused the younger children. The father specified that in the orphanage the children had been left unsupervised at night and had not been segregated, and that all the staff including the director had been aware of the abuse. He maintained that the director had been alerted to the abuse but had merely scolded the children she considered to be responsible. The director and the representative of the association AiBi in Bulgaria had allegedly warned the applicants that they must not tell their prospective adoptive parents what had happened, adding that if they did so the parents might send them back to the orphanage. 48. On 21 December 2012 the applicants’ father also contacted the Italian police department specialised in tackling online child pornography and informed it of the applicants’ allegations, stressing that the alleged abuse had been filmed by individuals wearing balaclavas to cover their faces. He produced copies of the psychologists’ report of 31 October 2012, the complaint to the CAI, a list of the Facebook profiles of the alleged abusers and a list of the supposed victims, pointing out that some of the children had been adopted in Italy. The applicants have not informed the Court of any action taken in response to this complaint. 49. On 8 January 2013 the association Telefono Azzurro sent the Milan public prosecutor additional information provided by the applicants’ father concerning other instances of violence apparently reported by the children. According to these accounts, the children from the orphanage had been taken to private apartments where the men and some of the women working at the orphanage, including the aforementioned N., a photographer and the photographer’s wife, had been present and where the children had allegedly been sexually abused. The adults’ faces had reportedly been covered with balaclavas and the scenes had been filmed and shown on a screen. The applicants had also stated that similar abuse had taken place in the toilets of the orphanage and had likewise been filmed. The applicants’ father also complained about the attitude of the association AiBi, which he criticised for not providing him with the support he had expected. The article in L’Espresso 50. The applicants’ father also contacted an Italian investigative journalist. On 11 January 2013 the weekly magazine L’Espresso published an article under the heading “Bulgaria, in the ogres’ den” (a version of which was posted on the Internet under the title “Bulgaria, in the paedophiles’ den”), reporting on the allegations made by the applicants’ father but without naming the persons concerned or the orphanage. The article stated that dozens of children from the orphanage in which the applicants had been placed in Bulgaria had been subjected to systematic sexual abuse by staff members and outsiders, in particular at a discotheque in a holiday village. The article described an organised network, with acts of paedophilia and violence, including threats issued with weapons, being committed by masked men, and added that some scenes had been videoed. It stated that the youngest children had been the victims of one of the older children, who used to enter their dormitories at night, and that the first applicant had reported these incidents to the director of the orphanage, who apparently had done nothing to put a stop to them. The author of the article added that he had travelled to Bulgaria in December 2012 and could confirm the existence of the places and people described by the applicants, which he said matched their descriptions. He mentioned that he had met with the local police, who claimed to have been unaware of the situation. The article stressed that psychologists had considered the applicants’ accounts to be credible. 51. As of 12 January 2013 the article in L’Espresso was the subject of several articles in the Bulgarian media. THE MEASURES TAKEN BY THE BULGARIAN AND ITALIAN AUTHORITIESThe initial inquiries and the first preliminary investigation in Bulgaria The initial inquiries and the first preliminary investigation in Bulgaria The initial inquiries and the first preliminary investigation in Bulgaria 52. Following the messages sent by the applicants’ father and by the Nadja Centre (see paragraphs 42-44 above) and the publication in the Bulgarian media of the disclosures made in the article in L’Espresso, the SACP carried out checks which enabled it to identify the applicants. 53. In parallel, the Bulgarian Ministry of Justice contacted the association AiBi, which had been named in the press article. On 14 January 2013 the association informed the Ministry of the applicants’ identity and sent it two reports, dated 27 September and 3 October 2012 (see paragraphs 13 and 14 above). The Ministry passed on that information to the SACP. 54. On 14 January 2013 the President of the SACP ordered an inspection of the orphanage. The inspection was carried out on 14 and 15 January 2013 by the regional children’s rights department. According to the report drawn up by the inspectors on 21 January 2013, as sent to the Court (this document does not include any attachments and does not state whether written records were drawn up of the interviews and whether audio or video-recordings were made), the inspectors checked the content of the documents and the safety of the buildings. They interviewed the mayor of the municipality, who was responsible for the running of the orphanage, the director, the general practitioner, the welfare assistant, the psychologist, the nurse and other staff members who were on duty at the time of the inspection. According to their report, the inspectors spoke to the children in groups of four or five, in the context of informal conversations which focused progressively on questions concerning possible acts of violence or unwanted physical contact. The older children who could read and write were asked to reply to an anonymous questionnaire which – again according to the report – they could complete without any staff member present. The questionnaire, devised by the SACP as a tool for assisting inquiries concerning children in residential care, consisted of seven mainly multiple-choice questions in which the children were asked whether they had been subjected to insults or violence or if anyone had touched their bodies “in a way [they] didn’t like” and if they knew who to turn to if there was a problem. 55. According to the same report, there were fifty-two children living in the orphanage at the time of the inspection: twenty-four girls and twenty ‑ eight boys. Twenty-one of the children were aged between two and seven and thirty-one were aged between eight and thirteen. Thirty-four people worked in the institution, including three men (a caretaker, a heating technician and a driver) whose jobs did not involve contact with the children and who did not have access to their dormitories. The report stated that, according to the information gathered, the children in the orphanage were never left unsupervised, that they were accompanied by a female educator on their way to school, that access by outside visitors was subject to checks and that there were security cameras around the outside of the premises, the footage from which was viewed on a regular basis. The report further specified that the children were divided among seven dormitories by age and, in the case of the older children, by gender, and that the layout of the dormitories was such that they could not move from one dormitory to another without being seen by the staff members on duty. No reference to violence or sexual abuse was made in the replies to the questionnaire or the conversations, which merely mentioned arguments and instances of being hit by other children, mostly at school. 56. The report also stated that, according to the psychologist who prepared a quarterly review concerning the children on the register of children eligible for adoption and who had monitored the applicants among others, neither the applicants nor the other children had ever mentioned ill ‑ treatment or sexual abuse and had shown no signs of such treatment. It also emerged from the information gathered that the children occasionally displayed aggressive behaviour towards each other, which was regarded as normal at that age. In the view of the staff members, the children had no difficulty in confiding in others. Some of the staff cited the example of one girl, M., who had apparently told the other children stories about sexual abuse in her family. The other children had immediately reported this to the staff, prompting an inquiry. According to the director, the second applicant had even told others about these events as if they had happened to her. The director conjectured that this episode could have been the source of the applicants’ allegations. 57. On the basis of this report the SACP concluded that there was no evidence that children from the orphanage had been subjected to the treatment reported in L’Espresso. Nevertheless, in view of the seriousness of the allegations, the SACP forwarded the file to the Veliko Tarnovo district and regional prosecutors’ offices. Following the inspection the SACP sent a team of psychologists to the orphanage from 18 to 24 January 2013. The team likewise found no cause for alarm. 58. The article in the magazine L’Espresso aroused interest among the Bulgarian media, which sought clarification from the SACP and from the management of the orphanage. An article published on 16 January 2013 on the news website Vesti, entitled “The allegations of sexual abuse in an orphanage are fabricated” reported on the statements made by the President of the SACP on television in the following terms: “The reports in the Italian press concerning alleged violence against children in a Bulgarian orphanage are slanderous and fabricated. ... The magazine did not state where the institution is located, prompting the SACP to conduct its own inquiry. According to the SACP, the institution is the residential facility for children without parental care located in the village of ... The SACP conducted an inspection in that facility lasting less than two days. Nevertheless, it is now satisfied that these accusations are unfounded. ... The President of the SACP considers it likely that the accusations were fabricated not by the children themselves but by their new parents in Italy. [He] stated that, despite the short duration of the inspection carried out, the findings were categorical. ... ... the orphanage stressed that the Italian family’s intention ... had been to adopt two girls, and that they had made a concession in taking the eleven-year-old brother as well. The new ‘parents’ had then wanted to send the boy back. For that reason, according to [the President of the SACP], the father had lied, saying that the boy and his sisters had been playing ‘doctor’. [He stated that] ‘this is most likely a case of manipulation on the part of an adoptive parent, perhaps resulting from his lack of preparedness’ for dealing with three children between the ages of eight and eleven. ‘I visited the children myself yesterday and I can tell you that I’m greatly reassured’ he said. He added that it was out of the question that the older children could have abused the younger ones, given the young age of all the children in the orphanage. Speaking on BTV, he said: ‘There are children’s homes ... where sexual and physical violence goes on, but that is not the case here’.” 59. On 29 January 2013 the news website Darik News published an article, accompanied by a photograph, stating that two members of the Bulgarian parliament had visited the orphanage with the mayor and the chair of the local council and had been received by the director. The article referred to the report in the Italian press according to which three children living in the orphanage had suffered sexual abuse, and reported on the “indignation” of the MPs, according to whom the Italian press had been “spreading fake news”. One of the MPs was quoted as saying to the educators: “We all know that this press report is slander”. The article stated that at the end of the visit the villagers had also been invited into the orphanage and had “expressed outrage at the slanderous remarks”. 60. On 28 January 2013 the Veliko Tarnovo district prosecutor’s office opened a preliminary investigation file ( преписка ) concerning the allegations reported by the SACP, under the number 222/2013. Taking the view that there was no evidence in the SACP’s report to indicate that a criminal offence had been committed, the prosecutor’s office asked the SACP whether it had any other evidence. The SACP confirmed that the inspection that had been carried out did not suggest that any abuse had been committed. In an order of 18 November 2013 the public prosecutor’s office decided that there were no grounds for instituting criminal proceedings and discontinued the case on the sole basis of the SACP’s report, without any other investigative steps being taken. The order was worded as follows: “The file was opened in connection with the information sent by the SACP, which carried out a check in response to a report ... alleging that three children who were subsequently adopted in Italy in 2012 had been sexually abused. The inspection did not lead to any evidence being gathered that might have confirmed the alleged abuse or the commission of other offences. In view of the foregoing, I consider that there is insufficient evidence of the commission of an offence, for the purposes of the Code of Criminal Procedure, such as to enable criminal proceedings to be instituted. The case should therefore be closed. Consequently ... : I have decided not to commence criminal proceedings and to close case no. 222/2013 ...” The visit to Bulgaria by representatives of AiBi 61. In parallel with the events described above, representatives of the association AiBi paid a visit to Bulgaria from 23 to 26 January 2013. It emerges from the report written following the visit that they met the Italian ambassador, the Bulgarian Deputy Minister of Justice and a representative of the SACP. The last two complained that they had received insufficient information from Italy and said that they had received only the – unsubstantiated – reports of abuse made by the applicants’ father, who had not responded to their request for information, and the article from L’Espresso. They added that an inspection had nevertheless been carried out when the orphanage in question had been identified; the SACP’s representative presented the inspection report, according to which no evidence to corroborate the applicants’ claims had come to light (see paragraph 54 above). The representatives of AiBi also visited the orphanage, where they met the mayor (who was the administrative authority responsible for the running of the orphanage) and were shown around the institution by the director. The report noted that the people whom the representatives met had expressed concern at the accusations, the criticisms of the Bulgarian institutions and the lack of action on the part of the Italian authorities. The report was sharply critical of the way in which the adoptive parents had handled the situation. The exchanges between the Bulgarian and Italian authorities 62. In the course of correspondence between the Italian CAI and the Bulgarian Ministry of Justice, the two authorities exchanged the information in their possession. In a letter of 23 January 2013 the CAI formally requested the Bulgarian authorities to take appropriate steps to protect the children living in the orphanage. The CAI’s representative wrote as follows: “... it appears that the following events took place in [the orphanage], involving large numbers of individuals, both staff members of the institution and people from outside, whose names and roles have been provided by the children. According to the [applicants’] accounts, the ‘most deserving’ children were taken periodically to the neighbouring village of L. They were taken to a discotheque where, in the beginning, they danced and enjoyed themselves. Then, after the cake, they were taken to bedrooms where some men who were already present ‘played’ with them. These children were subjected to violence and forced to witness violence against others. The children who were the victims of these repeated assaults later replicated them with the smallest children when they were left alone at night. In view of the above, the [CAI] requests the central authority [the Bulgarian Ministry of Justice] to take all the necessary steps to protect the children in the orphanage.” For her part, the Bulgarian Deputy Minister of Justice expressed concern for the applicants’ welfare within their adoptive family, in particular regarding the risk that the parents might abandon the children. The representative of the CAI replied that the adoptive parents had raised this possibility in a moment of panic, in view of the seriousness of the facts that had been disclosed (see paragraph 14 above), but that they were now wholly committed to the children. 63. In view of the concerns expressed by the Bulgarian Ministry of Justice, the CAI applied in early February 2013 to the R. Youth Court, which had territorial jurisdiction to follow up the adoption process and take any measures required to protect the applicants. A few days earlier the association AiBi had also reported the events to the Youth Court. 64. On 21 January 2013 the applicants’ father complained to the CAI about the fact that the Bulgarian press had disclosed the applicants’ names, in particular in an interview given by the director of the orphanage. The complaint was forwarded to the Bulgarian Ministry of Foreign Affairs. In a note verbale dated 24 January 2013 the latter informed its Italian counterpart that the SACP had taken action vis-à-vis the media outlets concerned. In a further note verbale of 27 September 2013 the Bulgarian ministry stated that the Bulgarian personal data protection commission had taken the view that the situation in question had not resulted in misuse of personal data, in so far as the use of the data had been justified in this instance by the public interest in the case and the aims pursued by journalistic activity. The second preliminary investigation in Bulgaria 65. On 15 January 2013 the Milan public prosecutor’s office, on an application from the association Telefono Azzurro (see paragraph 46 above), sent a request to the Bulgarian embassy in Rome containing the following passages: “... I am sending you copies of the documents in my possession concerning allegations of serious offences against minors ... As the Italian judicial authorities do not have jurisdiction in the present case since the alleged acts were committed abroad, by foreign nationals, I would ask you to contact the relevant local authorities with a view to assessing whether the allegations in question are well founded.” The prosecutor attached the record of the calls made by the applicants’ father to Telefono Azzurro, a complaint from the father dated 28 November 2012 setting out the applicants’ allegations, and the report of the psychologists from the RTC dated 31 October 2012 (see paragraphs 46 ‑ 49 above). 66. The documents in question were translated and sent to the SACP, which forwarded them to the Veliko Tarnovo regional prosecutor’s office. However the latter, which, following the article in L’Espresso, had opened an investigation into the general situation with regard to orphanages in the region, took the view that the documents implicated named individuals and that it was therefore for the district prosecutor’s office to decide on possible proceedings. The file was sent to the Veliko Tarnovo district prosecutor’s office, which on 22 February 2013 opened a preliminary investigation under the number 473/2013, while the first investigation (no. 222/2013) was still pending. 67. A team of representatives from the police, the local authorities and the regional healthcare, social welfare and child protection services conducted inquiries at the orphanage on 25 and 26 February 2013. 68. According to the report drawn up by the police on 6 March 2013, the team consulted the documents available in the orphanage, including the children’s medical records, and spoke to members of staff (the director, the psychologist, two educators, a childcare assistant, the driver, the caretaker and the heating technician), to some individuals who occasionally worked in the institution (a photographer named D. and an electrician the diminutive of whose forename began with N.), and to four children aged between eleven and thirteen (three boys, B., G. and A., and a girl, Bo.) whom the applicants had mentioned in their accounts. The police report described the running of the institution and the activities and care provided to the fifty ‑ three children living there at the time. It stated that the regular medical check-ups carried out by the general practitioner from outside the orphanage had not revealed any signs of physical or sexual assault on the children. It added that a complaints box was available to the children, as well as a telephone which gave the number of the national helpline for children in danger, and that no incidents corresponding to the applicants’ allegations had been reported by those means. 69. The report noted that only three staff members were men – the driver Da., the caretaker K. and the heating technician I. – and that they were not allowed to enter the dormitories unless accompanied by the director of the orphanage or by a female member of staff. 70. The report also stated that the municipal child protection service inspected the orphanage regularly and that a police officer visited every week. It stated that security measures were in place, particularly regarding entry by outside visitors, and that no instances of sexual abuse of children had been reported, either during the interviews with staff members in the course of the investigation or in the preceding years. 71. The report also referred to the investigations conducted by the public prosecutor’s office and the police into incidents occurring at the orphanage since 2002, and in particular one case of ill-treatment by an employee who had subsequently been dismissed, and one case in which some children had accidentally swallowed medication. It stated that no reports of sexual abuse had been recorded. 72. In a letter of 8 May 2013 the district prosecutor’s office ordered the police to continue the preliminary investigation in order to establish the identity of the persons referred to and the truth or otherwise of the allegations made in the documents sent by the Italian authorities. According to a second police report, dated 5 June 2013, the police had conducted interviews in the police station on that occasion with the director of the orphanage, the psychologist, the welfare assistant, the photographer D., and the electrician N. The only child referred to by the applicants who was still living in the orphanage, B., had also been questioned by a police officer in the presence of the orphanage’s psychologist. The report found that the evidence gathered did not corroborate the applicants’ allegations, and noted in particular that, contrary to the applicants’ assertions, the director of the orphanage was not called E. (as regards the confusion surrounding this name, see paragraphs 19 and 32 above) and that the applicants had not reported any instances of sexual abuse to her or to the welfare assistant E. The report added that the children had not been taken to any “discotheque”. The only occasion on which the children had an opportunity to dance was at a party during the annual excursion organised by an association in the village of L. According to the report, the children were accompanied to that party by the female educators from the orphanage and the only other person present was a disc jockey invited for the evening. The report also mentioned that the children had spoken in positive terms about their trip to L. The psychologist had stated that during the third applicant’s time at the orphanage the child had not displayed the symptoms referred to by the adoptive parents (who claimed that she used to cry out while she was in the bath and had bitten people). The psychologist had added that, while the third applicant had been psychologically stable, the first and second applicants had been more confrontational and had a tendency to manipulate other people, including adults. She had also noted that, at the time of the initial meetings with the prospective adoptive parents, the first applicant had been annoyed because the parents had apparently paid more attention to his sisters. According to the report, the witness statements obtained also indicated that D., the boy whom the applicants had identified as the perpetrator of the alleged abuse and ill-treatment (see paragraphs 19 and 25 above), had been adopted by Italian parents as far back as the late summer of 2011, at the same time as his sister, when he was twelve years old. As to M., the girl mentioned by the applicants (see paragraph 28 above), the report of a gynaecological examination carried out in January 2012 had found that her hymen was intact. 73. Another report, drawn up on 4 March 2013 by the regional child protection services in connection with the inspection of the orphanage, essentially reiterated the information contained in the report following the SACP’s inspection in January 2013 (see paragraph 54 above) and noted that the relevant regulations were largely complied with and that there were no grounds to suspect sexual abuse. The report made several recommendations including improvements to the programme of activities offered to the children. 74. On conclusion of the preliminary investigation the district prosecutor’s office, in an order of 28 June 2013, decided not to institute criminal proceedings and discontinued the case. According to the order, the evidence gathered during the investigation had not confirmed the allegations made by the applicants’ parents. The male staff members and the electrician N., who had worked only occasionally in the orphanage, had not had access to the children without a female educator being present; the children were always accompanied on excursions, in particular during the annual trip to L., and had not come into contact with any men without the female staff being present; the director was not called E.; the boy B. mentioned by the applicants denied having been the perpetrator or the victim of sexual touching, and the young girl M. had undergone a gynaecological examination in January 2012 which showed that her hymen was intact; lastly, D. and his sister had been adopted in Italy as early as the summer of 2011. The public prosecutor concluded that the evidence gathered did not lead to the conclusion that a criminal offence had been committed. The proceedings before the Youth Court in Italy 75. Several steps were taken in the course of the proceedings opened by the public prosecutor’s office at the R. Youth Court on an application by the CAI and the association AiBi (see paragraph 63 above). Under Italian law, civil proceedings of this kind in the Youth Court, with the participation of a public prosecutor for minors, are designed to follow up adoptions. In the present case the proceedings were aimed at monitoring the applicants’ integration into the family in view of the events that had taken place and the risk that the adoption might be called into question. 76. On 22 February 2013 the journalist from L’Espresso gave a statement to a public prosecutor for minors. He explained that he had been contacted by the applicants’ father, who had reported what the applicants had told him; the journalist added that he had travelled to Bulgaria from 9 to 16 December 2012 to investigate. He confirmed the existence of the places and people described by the children. In particular, he said that he had discovered the whereabouts of the photographer D.’s studio and had made contact with him on Facebook using a false name. He had noticed that many of D.’s Facebook contacts were adolescents. 77. The journalist said that he had made contact through a Bulgarian journalist with a police officer named K. to whom he had passed on the information provided by the applicants’ father. However, the police officer had later told him in confidence that his supervisors had forbidden him to take up the case. 78. The documents in the file show that the man whom the journalist described as a police officer told him during an exchange of emails that he thought that the account given by the applicants’ father pointed to serious offences which in his view warranted the opening of a criminal investigation. However, he considered that the account was insufficiently detailed and asked to be sent a copy of the Italian psychologists’ report. The journalist subsequently provided him with a more detailed account and with the psychologists’ report. There is no information in the file concerning a possible follow-up to this exchange by either party. 79. On 25 February 2013 the applicants’ father was interviewed by the police attached to the R. Youth Court. He stated that the applicants had initially told him that the older boys D. and G. had abused the younger children in the orphanage. Some time later the applicants had told him about abuse allegedly committed by a workman, N., who, they said, had raped children from the orphanage over a number of years and had forced them to engage in acts which the father described as abhorrent. The applicants had subsequently related incidents which they claimed had occurred in the place where the children were taken on holiday, where they had allegedly been assaulted and abused by members of staff and by individuals from outside the institution. The applicants had reportedly told their father that the children had been tied in handcuffs, that the adults had worn masks and that the scenes had been filmed by a photographer, D., who had also participated in the abuse. The first applicant had apparently added that he had been threatened with a gun. 80. The applicants’ father also stated that he had tried to trace the individuals described by the applicants on social media, and that the applicants had recognised several of them and had identified them as the perpetrators of the acts in question. The day after the interview, the applicants’ father sent the police a list of names, some of them using the diminutive form, of the persons allegedly involved in the abuse, together with the Facebook profiles that he had managed to identify (see paragraph 48 above). He stated that the children had informed S., the director, about the alleged abuse and the involvement of the orphanage’s employees and that she had promised to take action, but that nothing had been done. 81. At the request of the public prosecutor for minors, the police viewed the video-recordings made by the applicants’ psychologists and drew up a record of the conversations that had taken place between the applicants and the psychologists on 11 and 18 October and 5 November 2012 (see paragraphs 23-34 above). 82. On 8 April 2013 the first and second applicants were interviewed by the public prosecutor for minors, in the presence of a psychologist and a female police officer. According to the written record the interviews were filmed and recorded on DVD. 83. It transpires from the full transcript of these interviews, produced before the Court, that both the children, and in particular the first applicant, still had quite a limited command of Italian and that the persons interviewing them had to explain the meaning of certain words such as “undress” and “breasts” which featured in their questions. The applicants’ replies were brief and often consisted of a simple “yes” or “no” answer, or of the repetition of a suggestion made in the question. 84. The two children were first asked how they were feeling and to describe their life in the orphanage. Neither of them mentioned the allegations of sexual abuse of their own accord, but spoke about them when the prosecutor asked them questions about inappropriate behaviour on their part or matters they had mentioned to the psychologists. 85. The first applicant was initially somewhat reluctant to talk about Bulgaria and about the incidents in the orphanage. When questioned directly on the subject he said that one boy at the orphanage had licked a young girl’s bottom and that another boy, D., had hit the other children. He told the interviewers that adults had come into the room at night, that N. in particular had touched his bottom and “done a wee in [his] mouth” and in other children’s mouths, and that some children had been tied up, undressed and hit. He said that his sisters had been undressed but that he had not. Neither the women who looked after the children nor the director had heard anything because they had been asleep, and the children had not said anything the next day because the men had forbidden them to do so. 86. It is clear from the transcripts that the first applicant was annoyed with the people questioning him. His account also contained a number of contradictions with regard to whether certain events had actually taken place and whether he had witnessed certain acts or had been told about them by other children. 87. Despite being asked several questions on the subject, the first applicant was unable to explain what he meant by the expression “doing sex”, and finally agreed with the suggestions put to him by the interviewers. He said that “those things” had happened only in the orphanage and not during the holiday outings. He also stated several times that he had been hit in the orphanage. 88. The second applicant, who appeared to have a better grasp of Italian than her brother, spoke about her daily life in the orphanage in greater detail. When questioned by the prosecutor about the incident occurring in Italy, she said that she and her brother and sister had played a game which they should not have played and that in Bulgaria her brother had “done a wee” in the mouth of their little sister, Z. She said that the children had once seen a man doing that with a lady on the television in the orphanage. She added that both the people concerned had been dressed and that the lady had cried out. She said that she had not spoken to staff members about these events. 89. When questioned by the prosecutor about what she had said to the psychologists from the RTC, the second applicant told her that a boy from the orphanage had put his finger in a young girl’s bottom and that her brother had done the same thing to her and to her sister, once in Bulgaria and once after their arrival in Italy. When asked whether she had been touched by other children she recounted several incidents, explaining that one boy from the orphanage had “played at doing sex” by lying on top of her while they were both dressed. At school, two girls had asked her to dance in her underpants, and she had also seen two older children kissing in school. She added that a certain N. had “kissed [other young girls] on the mouth and touched [them]” at night in the orphanage. However, her statements as to whether N. was an older child or an adult, and whether or not he lived in the orphanage, contradicted each other. 90. In reply to several questions on the subject, she stated that she had never seen any adult naked, that no adult had touched her, that she had never been photographed and that none of what she described had taken place on the holiday outings. 91. During the interviews the prosecutor showed several photographs to the two applicants, who identified, among other things, the holiday house in L. and the photographer D. 92. On 24 June 2013 the prosecutor sent the evidence thus obtained to the Youth Court. She noted in her conclusions that it was clear from the disclosures made by the applicants to their parents and their psychologists and repeated, if only in part, during their interviews, that the children had been the victims of repeated sexual abuse and ill-treatment. The prosecutor considered that they should not be questioned further at this stage, especially in view of the possibility that the Bulgarian authorities might wish to interview them. She proposed that the court should order the monitoring of the applicants’ situation within the family and of the support they were receiving from the psychologists, and should assess the need to provide assistance to the parents. 93. On 9 July 2013 the Youth Court appointed an expert in paediatric neuropsychiatry, who was the head of child and adolescent neuropsychiatry of the regional health authority of a neighbouring region, to assess “[the applicants’] psychological and physical state, the possible existence of symptoms suggestive of sexual abuse (ill-treatment) during their time in residential care, and the dynamic between [them and their parents]”. The court instructed the expert to “examine [the procedural acts and documents available at the RTC] with a possible view to interviewing the children, subject to the findings of that preliminary examination and to authorisation by the court”. After examining the documents and the recordings of the interviews with the applicants and their parents, and on the basis of appropriate scientific evaluation methods (Criteria-based Content Analysis, CBCA), the expert made the following observations: “X and Y’s accounts of the acts of which they claim to have been the victims during their time at the institution in Bulgaria appear to satisfy the criteria established by the scientific literature in order to be considered clinically credible. The relationship of the aforementioned children with their adoptive parents appears to be fundamentally sound, and the parents have succeeded in coping with a considerable emotional burden, including on a personal level.” 94. In a decision of 13 May 2014 the Youth Court observed that the evidence gathered, and in particular the expert’s assessment, showed that the applicants had been subjected to repeated sexual abuse and ill-treatment in the orphanage in Bulgaria. The court noted that according to the parents’ statements, the applicants had revealed that they had engaged in sexual acts among themselves, that this had been common among the children in the orphanage, and that the children had also been the victims of abuse on the part of several employees who had forced them to engage in sexual acts. The court observed that the abuse had been committed in the orphanage and at a place where the children were taken on holiday, that the children had been threatened, including with a weapon, that the acts in question had been filmed by a photographer, D., and that the children had identified some of the individuals they had mentioned, and in particular the photographer, on the photographs presented by the journalist from L’Espresso. The court stressed that the applicants had reiterated these allegations when interviewed by the prosecutor, albeit in less detail and with some hesitation. 95. The Youth Court, basing its findings in particular on a recent report of the psychologists from the RTC dated 21 November 2013, considered that the adoptive parents had demonstrated the patience and care that were required and that there was no reason to question their ability to take care of and raise the children. However, it noted that the parents’ initial reaction had been inappropriate in so far as they should have applied to the Youth Court or another competent authority immediately instead of having recourse to a journalist. It also criticised the conduct of the association AiBi, which had delayed in contacting the competent authorities after being apprised of the situation and after noting a problem of sexual precocity with the applicants and the other children in the orphanage, and which had hastened to draw up a report criticising the parents. 96. In these circumstances the Youth Court held that there was no need to question the applicants again, to order protective measures concerning them or to review their psychological counselling; it therefore terminated the procedure for following up the adoption. The Youth Court’s decision was sent to the Milan public prosecutor’s office in connection with the pending criminal case concerning the same facts. The third preliminary investigation in Bulgaria and the subsequent decisions of the prosecuting authorities 97. In late January 2014 the Italian Ministry of Justice sent an official letter to the Bulgarian authorities, forwarding the evidence gathered by the public prosecutor’s office at the R. Youth Court (see paragraphs 75 et seq. above) and asking them to open an investigation into the allegations. The documents forwarded comprised the statement given by the applicants’ father to the police, his letter containing the list of names and Facebook profiles of the persons he believed to be implicated (see paragraphs 48 and 80 above), the police written record based on the recordings of the applicants’ conversations with their psychologists (see paragraphs 23 ‑ 34 above), and the transcripts of the first and second applicants’ interviews with the public prosecutor for minors (see paragraphs 79-91 above). 98. On 14 March 2014 the public prosecutor’s office at the Bulgarian Supreme Court of Cassation sent translations of the Italian documents to the Veliko Tarnovo regional prosecutor’s office, which forwarded them to the district prosecutor’s office. On 4 April 2014 the district prosecutor’s office opened a preliminary investigation under the number 910/14. On 15 April 2014 the district prosecutor observed that three investigations had been opened concerning the same facts and forwarded the files to the regional prosecutor’s office, proposing that they be joined and that the orders already made in the case be set aside. 99. In an order of 5 June 2014 the Veliko Tarnovo regional prosecutor’s office ordered the joinder of the three investigations and set aside the order of 28 June 2013 issued in case no. 473/13 (see paragraph 74 above), on the grounds that it had been made while a first investigation was still pending. The discontinuance order of 18 November 2013 in case no. 222/13 (see paragraph 60 above) thus remained in force. No fresh investigative steps were taken on the basis of the new documents received from the Italian authorities in January 2014. 100. In December 2014 and again in January 2015 a representative of the Italian embassy in Sofia made an official enquiry regarding the progress of the investigation. On 23 January 2015 the Bulgarian authorities informed the Italian embassy that the criminal investigation had been closed by means of the order of 18 November 2013 (see paragraph 60 above). A copy of the order was sent to the embassy on 28 January 2015. 101. In the meantime, on 19 January 2015, the Italian Ministry of Justice requested its Bulgarian counterpart to inform it of the outcome of the criminal case. It received the information in a letter of 11 March 2015. 102. On 11 December 2015 the applicants’ father requested the Italian Ministry of Justice to grant him access to all the material in the file. On 1 February 2016, in response to that request, the Italian authorities sent the applicants’ parents the decisions given by the Bulgarian prosecuting authorities, translated into Italian, including the order of the Veliko Tarnovo district prosecutor’s office of 18 November 2013. The order stated that it was open to appeal to the regional prosecutor’s office. 103. On 7 June 2016 the Italian Ministry of Justice sent additional documents concerning the case to its Bulgarian counterpart. The material included a letter from the applicants’ father to the Italian Justice Ministry dated 2 May 2016 in which he challenged the investigation carried out in Bulgaria and cast doubt on the independence of the Veliko Tarnovo district prosecutor’s office; a list of the alleged perpetrators and of the children supposedly present in the orphanage at the time of the events; and an article from a local daily newspaper, Borba, dated 4 January 2013, in which a young man who claimed to have lived in several care homes during his childhood and adolescence complained of violence and precocious sexual activity in those institutions. In his letter the applicants’ father referred to the Youth Court decision of 13 May 2014 (see paragraphs 94-96 above) and requested that it be sent to the Bulgarian authorities. However, the decision does not appear to have actually been sent with the correspondence from the Italian ministry. 104. These documents were forwarded to the Veliko Tarnovo district prosecutor’s office on 1 August 2016. On 2 August 2016 the prosecutor in charge withdrew from the case in response to the criticism by the applicants’ father of the way in which he was handling the case. A different prosecutor was appointed. The latter forwarded the file to the regional prosecutor’s office, taking the view that the letter from the applicants’ father should be treated as an appeal against the order of the district prosecutor’s office of 18 November 2013. 105. In an order of 30 September 2016 the regional prosecutor upheld the discontinuance order of 18 November 2013. He noted that the order had been based on an inspection carried out by the SACP which had not identified any shortcomings in the running of the orphanage or any infringement of the children’s rights, and that the district prosecutor had concluded accordingly that the claims made in the article in the Italian weekly magazine had not been corroborated. 106. The regional prosecutor went on to make the following observations. In the course of the second investigation, opened following the report by the association Telefono Azzurro, the police and the various relevant services had instituted inquiries. In that context, evidence had been taken from various members of the orphanage staff, namely the director, the psychologist, two educators, the driver, the heating technician, the caretaker and a childcare assistant, and from four children. Some outsiders who had worked in the orphanage – a photographer and an electrician – had also given evidence on that occasion. The police investigators had then interviewed the director, the psychologist, the welfare assistant and one child, and also the electrician, the photographer and a member of the municipality’s IT department, all of whom had carried out work in the orphanage. The interviews had not produced any evidence that the children in the orphanage had been the victims of psychological, physical or sexual abuse. It emerged from the inquiries that the children had been supervised during the night and could not have any contact with individuals from outside without being accompanied by a childcare assistant or an educator from the centre. It further appeared that once a year, in summer, the children had gone to a holiday camp, accompanied by educators from the orphanage. A party had usually been organised at the end of their stay, in which reportedly the only outside person involved was a disc jockey. 107. The public prosecutor noted that only three of the orphanage’s employees had been men and that they had not had access to the rooms set aside for the children. The outside photographer came to the orphanage only to take photographs or make videos for adoption files or for parties or ceremonies. There had been no employee with the initial N., the only person of that name had been an electrician who came to the orphanage occasionally to repair kitchen equipment, and there had never been a director called E. (as regards the confusion surrounding this name, see paragraphs 19 and 32 above). 108. Consequently, in the prosecutor’s view, there was nothing in the evidence gathered to indicate that any offences had been committed against the three applicants. 109. The prosecutor also observed that the new documents sent by the Italian authorities confirmed the information contained in the earlier documents and did not add anything to it. He therefore concluded that there were no grounds for a criminal prosecution, and upheld the discontinuance order of 18 November 2013. 110. On 17 November 2016 that decision was endorsed by the Veliko Tarnovo appellate prosecutor’s office in the context of a review conducted of its own motion. 111. On 27 January 2017, after the respondent Government had been given notice of the present application, the public prosecutor’s office at the Bulgarian Supreme Court of Cassation ordered an official review of the order of the appellate prosecutor’s office. The review, conducted by a prosecutor at the Supreme Court of Cassation, concluded that the investigation appeared to have been thorough and had not revealed that the applicants had been ill-treated at the orphanage, with the result that there were no grounds for setting aside the order of the appellate prosecutor’s office. The prosecutor found as follows: “Thorough checks were carried out in case no. 222/2013 of the Veliko Tarnovo district prosecutor’s office, during which no evidence was found of physical or sexual abuse of the children from [the orphanage]. Having consulted the documents sent by the Milan public prosecutor’s office to the Bulgarian embassy containing the expert opinions prepared by a psychologist, a psychotherapist and a clinical consultant at the request of the [applicants’ parents], and the report submitted to the Milan public prosecutor’s office by the association Telefono Azzurro specialising in the prevention of child abuse, which was sent to the international department of the public prosecutor’s office at the Supreme Court of Cassation by the Ministry of Justice; having likewise consulted the documents concerning the evidence taken from the children X and Y containing the transcripts of the interviews with the public prosecutor ..., the female police officer ... and the psychologist ..., I have concluded that those interviews provide no grounds for finding that the children were subjected to abuse by adults during their time at [the orphanage], but that the interviews indicate that the children were most likely witnesses to acts of sexual touching among children living in the orphanage, which X then copied in Italy vis-à vis his sisters. The children themselves give divergent accounts of the circumstances in which they allegedly witnessed acts of a sexual nature, namely whether they saw them on television or saw them being carried out by another older child. X’s first account to his adoptive parents concerning the violence to which he claimed to have been subjected in Bulgaria was aimed primarily at focusing their attention on events that had not actually occurred and justifying acts he had committed towards his sisters and of which the parents had expressed strong disapproval. Some aspects of the initial accounts [made by the applicants] to their parents and the psychologists were not confirmed during the detailed questioning by the public prosecutor at the Italian Youth Court. As the three children were fearful of being rejected by their adoptive parents, who disapproved strongly of their immoral behaviour within their new family – within which the children receive a great deal of love and attention – they sought to inspire pity and play down their own actions by relating incidents that had not actually occurred in which they were the victims of crimes. In view of the foregoing I consider that the order of the Veliko Tarnovo appellate prosecutor’s office was justified and in accordance with the law.” OTHER RELEVANT INFORMATION 112. In addition to the inspections conducted in the orphanage following the applicants’ allegations, the regional child protection services carried out a further check in June 2013 following a report by the association the Bulgarian Helsinki Committee casting doubt on the quality of the institution’s educational activities and alleging that children older than the statutory maximum age were living in the orphanage and that the heating technician, in breach of the rules, entered rooms intended only for the children and had had a relationship with one of the female employees. The report of the child protection services noted, in particular, that the age limit was complied with and that the heating technician did not enter the rooms occupied by the children unless accompanied by a staff member. However, according to the report, the director of the orphanage had observed that one employee had made inappropriate remarks about intimate adult relations in front of the children and had been reprimanded by the director. It also transpired from the inspection carried out by social services that the nurse had not organised information sessions on health topics as she was required to do, but that the educators had given classes on sex education and medical issues. 113. In 2013 the Veliko Tarnovo district prosecutor’s office also opened a criminal investigation under the number 407/2013, after the regional social welfare directorate reported complaints by several parents whose children, M., S. and Y., had been placed temporarily in the orphanage between 2011 and 2012 and had stated that one of the childcare assistants had hit them with a stick. The public prosecutor’s office ordered the police and the child protection services responsible for the area to carry out checks. Following a decision by the mayor, the municipal social services carried out a further check concerning the same complaints. In an order of 19 June 2013 the district prosecutor’s office discontinued the case, noting that there was insufficient evidence that the children had been ill-treated by members of staff. With regard to M., who was one of the children mentioned in the applicants’ accounts (see paragraphs 21, 28, 56 and 72 in fine above), the order also referred to another episode in which the girl in question, on returning to the orphanage after staying with her parents in January 2012, had complained of sexual abuse within her family and had told the other children in the orphanage about it. The director had mentioned the episode in the course of the investigations in the present case (see paragraph 56 in fine above) and in her statements to the press, as a possible explanation for the applicants’ accounts of sexual abuse. 114. The orphanage was closed down in July 2015 as part of a policy of deinstitutionalisation aimed at placing as many children as possible with families. | This case concerned allegations of sexual abuse perpetrated against three children in an orphanage in Bulgaria before their adoption by an Italian couple in June 2012. The applicants also submitted that the Bulgarian authorities had failed in their obligations to protect them from such treatment and subsequently to conduct an effective investigation. |
819 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1949 and lives in Reykjavik. In 1969, at the age of 20, the applicant completed his training as a navigation officer at the Icelandic College of Navigation and started work as a seaman. This he continued to do until 1978, when he sustained a serious work accident on board a trawler. His right leg was struck by a 200 kg stone object, causing a compound fracture of his ankle. As a result, he had to give up work as a seaman. His disability was assessed at 100%, which made him eligible for a disability pension from the Seamen ’ s Pension Fund (“the Pension Fund”), to which he paid premiums intermittently from 1969 until 1981. The assessment was made on the basis of the criteria that applied under section 13 (1) and (4) of the Seamen ’ s Pension Fund Act ( Law no. 49/1974 – “the 1974 Act” ), notably that the claimant was unable to carry out the work he had performed before his disability, that his participation in the Fund had been intended to insure against this contingency, and that he had a sustained loss of fitness for work (of 35% or more). The applicant underwent regular disability assessments by a physician accredited by the Pension Fund and was each time assessed as 100% disabled in relation to his previous job. 9. After his accident the applicant joined a transport company, Samskip Ltd, as an office assistant, and is still employed there as head of the claims department. A. Legislative amendments leading to the applicant ’ s loss of his disability pension entitlements 10. In 1992 the 1974 Act was amended by sections 5 and 8 of Law no. 44/1992 (“the 1992 Act”), which considerably altered the basis for the assessment of disability in that the assessment was to be based not on the Pension Fund beneficiaries ’ inability to perform the same work but work in general. The new provisions had been enacted on the initiative of the Pension Fund and in view of the Fund ’ s financial difficulties (according to an audit, at the beginning of 1990 the Pension Fund had a deficit of at least 20,000,000,000 Icelandic krónur ( ISK ) ). The Pension Fund applied the new provisions not only to persons who had claimed a disability pension after the date of their entry into force but also to persons who were already in receipt of a disability pension before that date. 11. Under an interim provision in section 5, the above change to the reference criteria was not to apply for the first five years after the commencement of the 1992 Act to a person who, before its entry into force, was already receiving a disability pension. 12. Under the new rules, a fresh assessment of the applicant ’ s disability was carried out by an officially accredited Pension Fund physician, who concluded that the applicant ’ s loss of capacity for work in general was 25%, and thus did not reach the minimum level of 35%. As a result, from 1 July 1997 onwards the Pension Fund stopped paying the applicant the disability pension and related child benefits he had been receiving for nearly twenty years since the accident in 1978. 13. According to information obtained by the Government from the Pension Fund and submitted to the Court, the applicant had been one of 336 Fund members who were receiving disability pensions in June 1992 under the interim provision in section 5 of the 1992 Act (see paragraph 21 below). On 1 July 1997 the total number of disability pension recipients was 689. This included Fund members who had not become entitled to a disability pension until after the commencement of the 1992 Act in June 1992. The cases of the aforementioned 336 persons receiving disability pensions from the Fund, who had acquired their entitlement before that time and were still drawing disability pensions in 1996, were reviewed in late 1996 and early 1997 in the light of their capacity for work in general. Altogether, 104 members of this group of disability pensioners had their benefits reduced in July 1997 as a result of the new rules on disability assessment under the 1992 Act. In the case of 54 Fund members, including the applicant, the disability rating for work in general did not reach the level of 35% required under the Act to retain entitlement to disability benefit, and so benefit payments were discontinued. The disability ratings of 29 members were reduced from 100% to 50% and those of 21 members from 100% to 65%. 14. The applicant instituted proceedings against the Pension Fund and, in the alternative, against both the Fund and the Icelandic State, challenging the Fund ’ s decision to discontinue the payments to him. In a judgment of 12 May 1999, the Reykjavik District Court found for the defendants. 15. The applicant appealed to the Supreme Court, which by a judgment of 9 December 1999 upheld the judgment of the District Court. 16. The Supreme Court accepted that the applicant ’ s pension rights under the 1974 Act were protected by the relevant provisions of the Icelandic Constitution as property rights. However, it considered that the measures taken by virtue of the 1992 Act had been justified by the Pension Fund ’ s financial difficulties. The Supreme Court stated: “ The pension rights that the appellant had earned under Law no. 49/1974 were protected under what was then Article 67 of the Constitution ( currently Article 72 of the Constitution – see section 10 of the Constitutional Law Act, Law no. 87/1995). Under the constitutional provision referred to above, he could not be deprived of those rights except under an unequivocal provision of law. The Court does not consider that section 8 of Law no. 49/1974 provided authorisation for the [Pension Fund] Board to curtail the benefit provisions; this could only be done under an unequivocal provision of law. Nor can the Court accept that the wording of subsection ( 1 ) of section 13 of Law no. 49/1974 meant that the Fund member did not have an unequivocal right to have his disability assessed in terms of his capacity to do his previous job. The evidence in the case shows that the Pension Fund was operated at a considerable deficit, and that at the end of 1989 more than ISK 20,000 ,000,000 would have been needed for the principal of the Fund, together with the premiums that it could expect, to cover its commitments, this estimate being based on an annual interest rate of 3%. In order to tackle this large deficit, the Fund ’ s Board asked for amendments to be made to the Act under which the Fund operated. It is clear that the reduction of the pension rights that resulted from Law no. 44/1992 was based on relevant considerations. Even though that Act was repealed by Law no. 94/1994, this does not change the fact that the appellant ’ s legal position had already been determined by Law no. 44/1992. The Court concurs with the District Court ’ s view that Law no. 94/1994 did not constitute a valid legal authorisation for making amendments to the rights that the Fund member had earned during the period of validity of the former legislation. The reduction according to Act no. 44/1992 was of a general nature as it treated in a comparable manner all those who enjoyed or could enjoy pension rights. An adaptation period of five years applied to all pensioners, as stated above. All those who can be considered to be in a comparable situation have been treated equally ... ” B. Details of the applicant ’ s loss of income 17. On 1 July 1997 the applicant lost pension rights (disability and children ’ s annuity benefits) amounting to ISK 12,637,600. He presented the following breakdown of this figure: Value of the principal, based on disability pension payment of ISK 61,356 per month until he reached the age of 65 : ISK 9,373,300 Value of the principal of child benefit based on the same premises, until the children reached the age of 18: Kristinn July 1997 - March 1998 ISK 136,100 Anna Margrét July 1997 - August 2006 ISK 1,469,600 Asmundur July 1997 - January 2009 ISK 1,658,600 Total ISK 12,637,600 18. The applicant has supplied the following information about his income from 1997 onwards : 1997 ISK 2,789,995 1998 ISK 3,305,268 1999 ISK 3,454,445 2000 ISK 3,774,248 2001 ISK 4,187,987 2002 ISK 4,558,248 Total ISK 22,05 0,191 19. The applicant has also submitted certain figures from a survey of seamen ’ s salaries obtained from the Icelandic Merchant Navy and Fishing Vessels Officers ’ Guild : “Ordinary seaman” Second mate First mate Master 1997 5,153,424 6,441,780 7,730,137 10,306,849 1998 5,580,795 6,975,994 8,371,193 11,161,590 1999 6,166,029 7,707,537 9,249,044 12,332,059 2000 5,949,075 7,436,344 8,923,613 11,898,150 2001 6,415,252 8,019,064 9,622,877 12,830,503 2002 5,654,756 7,068,445 8,482,134 11,309,513 Total 34, 919, 332 43,649,164 52,378,997 69,838,663 Income derived by the applicant from office work : 22,050,191 22,050,191 22,050,191 22,050,191 Difference 12,869,141 21,598,973 30,328,806 47,788,472 | The applicant was seriously injured on board a trawler and had to give up his work as a seaman. His disability was assessed at 100%, which made him eligible for a disability pension from the Seamen’s Pension Fund on the ground that he was unable to carry out the work he had performed before his accident. In 1992, on account of the Fund’s financial difficulties, changes were made to the way disability was assessed: the defining factor was no longer an inability to perform the same work, but an inability to perform any work. The applicant’s disability was reassessed at 25%. As this rate was below the threshold of 35%, the Fund stopped paying him a pension. |
317 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1992 and lives in Diyarbakır. A. Events of 14 July 2008 5. On 14 July 2008 a demonstration was held in Diyarbakır to protest about the conditions of detention of Abdullah Öcalan, the leader of the PKK (Kurdish Workers ’ Party), an illegal armed organisation. 6. According to a report prepared by four police officers on 21 July 2008 following the examination of video footage of the demonstration recorded by the police, on 11 July 2008 the Fırat News Agency, a website which was controlled by the PKK, had published a declaration of the Democratic People ’ s Initiative of Turkey and Kurdistan. The declaration contained instructions to hold meetings and marches in each town and city on 14 July 2008 to show support for Abdullah Öcalan. The report also stated that on the website www.rojaciwan.com, which was also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement to be held by the Party for a Democratic Society ( Demokratik Toplum Partisi (DTP)) in Diyarbakır on 14 July 2008 had been published. 7. The report stated that the police had received information according to which the Diyarbakır branch of the DTP was the organiser of the press statement to be held and MPs, mayors and local politicians from the DTP as well as members of a number of non-governmental organisations would gather in front of the DTP ’ s Diyarbakır party office at around 5.30 p.m. and march to Koşuyolu Park, where they would make a press statement. The police took the necessary measures as they suspected that there could be violent protests during the march, which could become a demonstration for the PKK. 8. According to the police report, people started to assemble by 4.30 p.m. in front of the DTP party office. Mayors and MPs were among the demonstrators. By 5.50 p.m. approximately 3,000 people had gathered. Thereafter, demonstrators started to march, arriving at 6.30 p.m. at Koşuyolu Park, where the press statement was made. At 7 p.m. while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones at the police officers and the cars parked in the neighbourhood. Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, such as “Every Kurd is Öcalan ’ s fedai [1] ” ( “Her Kürt Apo ’ nun Fedaisidir” ), “We will drop the world without Öcalan on your head” ( “Öcalansız dünyayı başınıza yıkarız” ), “The Youth to Botan [2], to the free country” (“ Gençlik Botan ’ a, Özgür Vatana” ), “ Salutations to İmralı [3] ” ( “Selam Selam İmralı ’ ya Bin Selam ”), “With our blood, with our life, we are with you, Öcalan” ( “Canımızla, kanımızla, seninleyiz Öcalan” ), “Long live President Öcalan ” ( “Biji Serok Apo” ), “Martyrs are immortal” ( “Şehîd Namirin” ), “No life without the Leader, Mr./Esteemed Öcalan ” ( “Başkansız yaşam olmaz, Sayın Öcalan” ). They carried banners which contained slogans such as “Stop the torture in İmralı” (“ İmralı işkencesine son” ) and “We make war for life, we die for peace” ( Yaşamak için savaşırız; Barış için ölürüz” ); photographs of Abdullah Öcalan and flags of the so - called “Confederation” were also brandished. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the neighbourhood with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to use proportionate force against the group, who were holding an illegal demonstration. The police intervened using truncheons, water and tear gas. The police report also noted that some people had taken down the Turkish flag in the schoolyard of the Diyarbakır nursery school. 9. At the end of the report it was noted that, according to the video footage, the applicant had thrown stones at the police together with a number of other persons and had acted with the group which had taken down the Turkish flag at the Diyarbakır nursery school. 10. The report of 21 July 2008 also contained twenty-four photographs extracted from the video footage recorded by the police. In four photographs, the applicant is seen in a group of young men while, according to the police, throwing stones at the security forces. In two photographs, he is seen while standing together with a group of people by a flag pole. A total of six photographs concern the taking down of the Turkish flag; one photograph contains an image of a knocked - over waste container; and one other photograph shows a damaged passenger van. The remaining photographs contain images of demonstrators standing in front of a building or walking. B. Criminal proceedings against the applicant 11. The applicant was arrested on 21 July 2008. According to the arrest and transfer report, the video recording of the demonstration by the police showed that the applicant had thrown stones at the police officers and had been in the crowd which had taken down the Turkish flag in a schoolyard. The officers who drafted the report stated therein that the applicant had been informed of his rights when arrested and had been transferred to the children ’ s branch of the Security Directorate, as he had been found to be a minor subsequent to a medical check. The applicant noted “I am not signing” and put his signature under that sentence on the report. 12. On 22 July 2008 the applicant made statements before the Diyarbakır public prosecutor in the presence of a lawyer. His statement reads as follows: “ ... I am a primary school graduate and a peddler. On 14 July 2008 my brother and I were selling watermelons in front of Koşuyolu Park in Diyarbakır. Suddenly, a large group of demonstrators chanting the slogan “Long live President Öcalan” (“ Biji Serok Apo ”) approached us. Subsequently, the police intervened and took a number of persons into custody. Some individuals among the crowd then began throwing stones at the police officers. I also joined the demonstrators at the beginning and chanted the slogan “Long live President Öcalan”. I then threw stones at the police officers. After a short while, some people went to a school. I also went with them. Some of them climbed on the flagpole in the school garden. They took down the Turkish flag and replaced it with a PKK flag. I was not involved in taking down the Turkish flag. I did not have any particular purpose when I chanted the slogan and threw stones at the police. I only acted together with the crowd. I do not know why there was a demonstration. I do not have any connection with the illegal organisation. The person in the photograph that you have shown is me.” 13. On the same day the applicant was brought before a judge of the Fifth Division of Diyarbakır Assize Court. He maintained that his statements to the public prosecutor had reflected the truth. His lawyer asked the court not to remand the applicant in custody, submitting that the applicant was a minor and therefore not capable of realising the meaning and consequences of his acts. 14. The judge remanded the applicant in custody in view of the existence of a strong suspicion that he had committed the offences of “ committing an offence on behalf of an illegal organisation without being a member of the organisation”, in breach of Law no. 2911, and “ dissemination of propaganda in support of a terrorist organisation ”, and having regard to the evidence. 15. On 22 July 2008 the Diyarbakır public prosecutor filed a bill of indictment against the applicant with the Fifth Division of Diyarbakır Assize Court, which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time. The applicant was charged with membership of an illegal organisation as he was considered to have committed a crime on behalf of an illegal organisation under Article 314 § 2 of the Criminal Code (Law no. 5237) on the basis of Articles 220 § 6 and 314 § 3 of the same Code, resisting the security forces by way of throwing stones under sections 23(b) and 33 (c) of the Meetings and Demonstration Marches Act (Law no. 2911), disseminating propaganda in support of the PKK under section 7 (2) of the Prevention of Terrorism Act (Law no. 3713) and denigration of the symbols of the sovereignty of the State under Article 300 § 1 of the Criminal Code. 16. On 21 October 2008 the Fifth Division of Diyarbakır Assize Court held the first hearing in the case. During the hearing, the applicant reiterated his statements of 22 July 2008 and asked to be released. He maintained that he had participated in the demonstration, chanted the slogan “Long live President Öcalan” and thrown stones at the police when they intervened. He submitted that he had not been among those who had taken down the Turkish flag. 17. The public prosecutor asked the court to convict the applicant under Articles 300 and 314 of Law no. 5237, section 7(2) of Law no. 3713 and sections 23(b) and 33(c) of Law no. 2911. The public prosecutor also requested that the sentences be reduced taking into account the fact that the applicant had been aged between 15 and 18 years old at the material time. 18. On 11 November 2008 the Fifth Division of Diyarbakır Assize Court rendered its judgment in the case against the applicant. The court noted, at the outset, a summary of the applicant ’ s defence submissions, the public prosecutor ’ s observations on the merits of the case and the following evidence in the case file: the applicant ’ s statements before the public prosecutor and the judge on 22 July 2008; his identity documents and a document showing that he did not have a previous criminal record; the arrest and transfer report of 21 July 2008; an incident report dated 14 July 2008; printed versions of documents downloaded from the Internet; the police report of 21 July 2008 describing the events of 14 July 2008 [4] and the applicant ’ s participation in those events; photographs extracted from the video footage recorded by the police; and medical reports. 19. In its judgment, the Assize Court held as follows : “ ... THE INCIDENT, EVIDENCE AND ASSESSMENT In a declaration made on 11 July 2008 on the website of the Fırat News Agency, which is controlled by the terrorist organisation, the PKK, the Democratic People ’ s Initiative of Turkey and Kurdistan gave the following instructions : ‘ This year ’ s July 14 celebrations should be made on the basis of the approach of “ live and make the leadership live” ... in each town and city, a march should be held on 14 th of July with a view to showing respect for our leader. This march should have the nature of Serhildan (rebellion); should paralyse the life of the enemy and be handled in a way that shows how to deal with the Kurdish people ’ s leader ... in the form of vicious notification to the enemy that the approach to the people ’ s leader is the approach to the Kurdish people, and at the same time, a reason for war for the Kurdish people ... every city and district should determine the itinerary depending on the conditions and get prepared ... today, as well, there are attacks against our leadership and our people ... this march should be the victory of human dignity. ’ Similarly, on the website entitled www.rojaciwan.com, which is also controlled by the PKK, a news article containing a call for participation in the reading out of a press statement was published: “ ... while the shaving off of Öcalan is provoking heated reaction, the non-governmental organisations have lent support to the press statement to be made under the leadership of the Democratic Society Party. The NGOs have described the treatment of Öcalan as torture and made a call to participate.” Against this background, on 14 July 2008 at around 4.30 p.m. people began to gather in front of the local branch of the DTP. Among the crowd, there were Members of Parliament and mayors who were members of the DTP. At around 5.50 p.m. there were 3, 000 persons gathered. At 5.50 p.m. the crowd started the march and arrived in Koşuyolu Park at around 6.30 p.m. Both in front of the local branch of the DTP and during the march, demonstrators chanted slogans praising Abdullah Öcalan, the leader of the terrorist organisation, such as “ Every Kurd is Öcalan ’ s fedai” ( “Her Kürt Apo ’ nun Fedaisidir” ), “ We will drop the world without Öcalan on your head” ( “Öcalansız dünyayı başınıza yıkarız” ), “The Youth to Botan, to the free country” (“ Gençlik Botan ’ a, Özgür Vatana” ), “ Salutations to İmralı” ( “Selam Selam İmralı ’ ya Bin Selam ”), “ With our blood, with our life, we are with you, Öcalan” ( “Canımızla, kanımızla, seninleyiz Öcalan” ), “Long live President Öcalan ” ( “Biji Serok Apo” ), “Martyrs are immortal” ( “Şehîd Namirin” ), “No life without the Leader, Mr./Esteemed Öcalan ” ( “Başkansız yaşam olmaz, Sayın Öcalan” ). They carried banners which contained slogans such as “Stop the torture in İmralı” (“ İmralı işkencesine son” ) and “We make war for life, we die for peace” ( Yaşamak için savaşırız; Barış için ölürüz” ); photographs of Abdullah Öcalan, the leader of the terrorist organisation and flags of the so-called “Confederation”. At around 6 p.m. speeches began. At 7 p.m., while Emine Ayna, a Member of Parliament from the DTP, was giving a speech, a group of people started throwing stones ... at the police officers and the cars parked in the neighbourhood. Subsequent to the press statements, when the crowd dispersed, some people within the crowd knocked over waste containers and attacked the police and the shops in the vicinity with stones and bats while chanting slogans in support of the PKK and its leader. The police gave a warning to those people and asked them to disperse. The demonstrators refused to obey the warnings. As a result, the police had to interfere with the group who were holding an illegal demonstration. Some within the crowd took down the Turkish flag in the schoolyard of the Diyarbakır nursery school ... In this connection, in the light of the indictment, the applicant ’ s indirect confessions, the incident report, the document containing the description of the events of 14 July 2008 prepared by the police, the arrest report, photographs showing the accused and the whole content of the case file, it has been established that the accused Ferit Gülcü actively took part in the illegal demonstrations held on 14 July 2008 in Diyarbakır in accordance with the instructions of the terrorist organisation PKK; that he chanted the slogan “Long live President Öcalan ” ( “Biji Serok Apo” ) together with the crowd; that he attacked the police with stones; that he acted together with the group who took down the Turkish flag in the schoolyard of the Diyarbakır nursery school; and that he incited the persons who took down the flag, thereby strengthening their will to commit that offence. In his defence submissions, the accused accepted that he had taken part in the illegal demonstration; that he had made propaganda in support of the terrorist organisation; and that he had resisted the police by way of throwing stones. He denied, however, the veracity of the allegation that he had participated in the taking down of the Turkish flag in the schoolyard of the Diyarbakır nursery school. Having regard to the documents and photographs in the case file, it has been understood that the accused acted together with the group who took down the Turkish flag in the schoolyard of the Diyarbakır nursery school and that he incited the persons who took down the flag, thereby strengthening their will to commit that offence. An accused should be convicted under Article 314 § 2 on the basis of Articles 314 § 3 and 220 § 6 of the Criminal Code if it is established that the offences in question were committed within the scope of an [illegal] organisation ’ s activities or if those offences serve as the evidence or basis of offences committed on behalf of an [illegal] organisation. In the present case, it has been understood that on 14 July 2008 the accused took part in the meetings and demonstrations, which subsequently became illegal, held as a result of the general call made by the organisation and the calls disseminated by the media controlled by the organisation and in accordance with the organisation ’ s purposes and that, with that aim, he committed the following offences : dissemination of terrorist propaganda, breach of Law no. 2911, denigration of symbols of the sovereignty of the State. It has thus been concluded that these acts, which were committed within the knowledge and in line with the will of the organisation, were perpetrated on behalf of the organisation. Therefore, the accused should also be convicted under Article 314 § 2 with reference to Articles 314 § 3 and 220 § 6 of Law no. 5237 along with the convictions for his other acts ... ” 20. Diyarbakır Assize Court then acquitted the applicant on the charge of denigration of the symbols of the sovereignty of the State under Article 300 § 1 of the Criminal Code, noting that it was not established that the crime had been committed by the applicant. 21. However, the Assize Court convicted the applicant under Article 314 § 2 of the Criminal Code, on the basis of Articles 220 § 6 and 314 § 3 of the same Code; section 7(2) of Law no. 3713; and sections 23(b) and 33(c) of Law no. 2911 and sentenced him to a total of seven years and six months of imprisonment. 22. The Assize Court first convicted him of membership of an illegal organisation pursuant to Article 314 § 2 of the Criminal Code on the basis of Articles 220 § 6 and 314 § 3 of the same Code as it found it established that the applicant had taken part in the events of 14 July 2008 which had become propaganda in support of the illegal organisation, upon the call made by the PKK. Applying the minimum penalty, the court sentenced the applicant to five years ’ imprisonment; increased it by one and a half times by virtue of section 5 of Law no. 3713 (seven years and six months); reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account that the accused had been aged between 15 and 18 at the material time (five years); and, finally, reduced it by one sixth under Article 62 § 1 of the Criminal Code taking into account the accused ’ s “sincere confessions ”, as well as his attitude and behaviour during the proceedings (thus reaching a total of four years and two months of imprisonment ). 23. Diyarbakır Assize Court also convicted the applicant of disseminating propaganda in support of a terrorist organisation under section 7(2) of Law no. 3713. Applying the minimum penalty, it sentenced the applicant to one year of imprisonment; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); further reduced it by one sixth under Article 62 § 1 of the Criminal Code, taking into account his “sincere confessions”, as well as his attitude and behaviour during the proceedings (thus reaching a total of six months and twenty days). The court decided not to commute the sentence to a fine under section 7(2) of Counter-Terrorism Law no. 3713, or to defer it pursuant to section 13 of Law No. 3713. It finally found Article 231 of the Code of Criminal Procedure governing the suspension of the pronouncement of a judgment inapplicable in the circumstances of the applicant ’ s case. 24. The first-instance court finally convicted the applicant of resistance to security forces pursuant to sections 2 3 (b) and 33(c) of Law no. 2911. Applying the minimum penalty, the court sentenced the applicant to five years ’ imprisonment; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (three years and four months); reduced it by one sixth under Article 62 § 1 of the Criminal Code, taking into account the accused ’ s “sincere confessions” as well as his attitude and behaviour during the proceedings (thus reaching a total of two years, nine months and ten days ’ imprisonment). It decided not to commute the sentence to a fine, and not to defer it either, regard being had to the overall sentence and the fact that the accused did not give the impression that he would refrain from committing a crime. 25. On 6 October 2009 the Court of Cassation upheld the judgment of 11 November 2008. 26. On 16 December 2009 the final decision was deposited with the registry of the first - instance court. C. Subsequent developments 27. On 25 July 2010 Law no. 6008 entered into force. 28. On 26 July 2010 the applicant ’ s representative lodged a petition with the Fifth Division of Diyarbakır Assize Court. Noting that Law no. 6008 had amended certain provisions of Laws nos. 2911 and 3713, the applicant ’ s representative requested that the court examine whether the amended versions of those provisions could be considered to be in favour of the applicant and, if so, whether the execution of the applicant ’ s sentence could be suspended. 29. On the same day the Fifth Division of Diyarbakır Assize Court decided to suspend the execution of the applicant ’ s sentence in view of the fact that certain provisions of Laws no. 2911 and 3713 amended by Law no. 6008 were in favour of juvenile offenders. Subsequently, the applicant was released from prison and a new procedure was initiated in accordance with Article 7 § 2 of the Criminal Code, according to which in the case of a difference between the legal provisions in force on the date of commission of a crime and those in force after that date, the provision which is more favourable will be applied to the offender. 30. On 3 December 2010 the Fifth Division of Diyarbakır Assize Court held that it no longer had jurisdiction over the applicant ’ s case in the light of a new paragraph added to Article 250 of the Code of Criminal Procedure by Law no. 6008. According to this new paragraph, minors could not be tried by assize courts which had special jurisdiction. 31. On 20 January 2011 and 22 February 2011 Diyarbakır Juvenile Assize Court and Diyarbakır Juvenile Court decided, respectively, that they were not competent to examine the case. 32. Upon both juvenile courts declining jurisdiction, the case was transferred to the Court of Cassation to resolve the issue of jurisdiction. On 3 October 2012 the Court of Cassation decided that Diyarbakır Juvenile Court had jurisdiction over the case. 33. Subsequently, Diyarbakır Juvenile Court started the re ‑ assessment of the applicant ’ s case with a view to determining the applicable legal provisions and the sentences in accordance with Article 7 § 2 of the Criminal Code (see paragraph 29 above) and in the light of the amendments made to Laws nos. 2911 and 3713 by Law no. 6008 ( uyarlama yargılaması ). 34. On an unspecified date the applicant made statements before Diyarbakır Juvenile Court. He contended that he had already served his prison sentence and that he contested the new procedure. 35. On 20 December 2012 Diyarbakır Juvenile Court rendered its judgment regarding the applicant. Having regard to the amendments made to Laws nos. 2911 and 3713 by Law no. 6008, the Juvenile Court revoked the applicant ’ s convictions contained in the judgment of 11 November 2008, holding that the amendments applied by Law no. 6008 were in favour of the applicant. 36. The first-instance court then acquitted the applicant of the charge of membership of a terrorist organisation under Article 314 § 2 of the Criminal Code, having regard to section 34/A of Law no. 2911, which had entered into force on 25 July 2010 with Law no. 6008 (see paragraph 50 below). 37. Diyarbakır Juvenile Court further convicted the applicant of disseminating propaganda in support of a terrorist organisation under section 7(2) of Law No. 3713. Applying the minimum penalty, it sentenced the applicant to one year of imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of six months and twenty days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of the Code of Criminal Procedure ( Law no. 5271) and Article 23 of the Code of Juvenile Protection (Law no. 5395). 38. The Juvenile Court further convicted the applicant of participation in a demonstration while in possession of prohibited materials pursuant to section 33(1) of Law no. 2911. Applying the minimum penalty, it sentenced the applicant to six months ’ imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (four months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of three months and ten days). Considering that the applicant would not commit any further crime and having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court decided to suspend the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of Law no. 5271 and Article 23 of Law no. 5395. 39. Diyarbakır Juvenile Court also convicted the applicant of resistance to the security forces which had used force to disperse the demonstrators pursuant to section 32 (1) of Law no. 2911. Applying the minimum penalty, the first-instance court sentenced the applicant to six months ’ imprisonment under this head; reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (four months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for the minor (thus reaching a total of three months and ten days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of the Code of Criminal Procedure (Law no. 5271) and Article 23 of the Code of Juvenile Protection (Law no. 5395). 40. Diyarbakır Juvenile Court finally convicted the applicant of obstructing the security forces in the execution of their duties by way of resistance together with other persons and using the influence of an organisation pursuant to section 32(2) of Law no. 2911 and Article 265 § 1 of the Criminal Code. Applying the minimum penalty, the court sentenced the applicant to six months ’ imprisonment under this head. It then increased the sentence by one third as the crime had been committed collectively (eight months); further increased it by one half pursuant to Article 265 § 4 of the Criminal Code as the crime had been committed using the influence of an organisation (twelve months); reduced it by one third by virtue of Article 31 § 3 of the Criminal Code, taking into account the fact that the accused had been aged between 15 and 18 at the material time (eight months); and further reduced it by one sixth under Article 62 of the Criminal Code, taking into account the possible implications of the sentence for a minor (thus reaching a total of six months and twenty days). Having regard to the length of the sentence and to the fact that the applicant did not have a criminal record, the court considered that the applicant would not commit any further crime and suspended the pronouncement of the judgment on condition that he did not commit another wilful offence for a period of three years in accordance with Article 231 of Law no. 5271 and Article 23 of Law no. 5395. 41. On 31 December 2012 the judgment of 20 December 2012 became final in the absence of any objection. | This case concerned in particular the conviction and detention of a minor for two years for membership of the PKK (Kurdish Workers’ Party), an illegal armed organisation, after he participated in a demonstration held in Diyarbakır in July 2008 and threw stones at police officers. He was also convicted of disseminating propaganda in support of a terrorist organisation and resistance to the police. The applicant complained about this conviction for having participated in a demonstration and alleged that the combined sentence imposed on him had been disproportionate. |
80 | Parental authority, child custody and access rights | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1948 and lives in Szeged. 6. On 8 June 2000 the applicant, an adherent of the religious denomination Hit Gyülekezete (Congregation of the Faith), divorced from his wife, and their son, born in 1994, was placed with the mother. The applicant was granted access rights. 7. The applicant lodged a motion with the Szeged District Court to reclaim custody or have his access rights re-regulated. The two psychiatric opinions prepared in the course of the ensuing proceedings established that the father’s visits did not impose a burden on the child and suggested loose but regular contact between the applicant and his son. Nonetheless, the court rejected his request on 13 October 2003. Another similar motion of the applicant was also dismissed on 20 June 2004 by the same court, which stated that the child’s removal from his social environment would not be in his interest and that the applicant’s circumstances were not satisfactory for the upbringing of a child. Nonetheless, the court found that the applicant’s behaviour was not malicious towards his son and his access rights should not be withdrawn, as requested by the mother, on the ground of his religious devotion. 8. On 11 January 2006 the Szeged Guardianship Authority filed an action to have the child placed with his older brother, the mother having been considered unfit. In respect of a potential placement with the applicant, the Authority had regard to its observations that his heavy-handed proselytism vis-à-vis the son and his inadequate housing conditions represented a danger for the boy. 9. The Szeged District Court appointed an expert psychologist. In his opinion of 5 September 2006 the expert found, having examined the applicant, the mother, their son and his older brother, that the boy had strong emotional ties to his siblings and his mother but none to his father. According to the expert, the applicant held unrealistic educational ideas hallmarked by religious fanaticism which rendered him unfit to provide the son with a normal upbringing; indeed, he forced his beliefs on his son to an extent that it resulted in the latter’s alienation from him. 10. On 12 September 2006 the District Court placed the child with his brother, but maintained the applicant’s access rights. This decision was upheld by the Csongrád County Regional Court, acting as a second-instance court, on 2 October 2006. 11. Subsequently the brother filed an action against the applicant seeking deprivation of his access rights. 12. The District Court appointed an expert psychologist. In his opinion of 14 September 2007 the expert submitted, after examining the brother and the son – but not the applicant –, that the applicant’s participation in the boy’s life was harmful, notably because of his insistence on proselytism. He was of the view that the applicant was unfit to contribute to the son’s normal development and that the applicant should be subjected to examination by an expert psychiatrist. He suggested that the applicant’s access rights should be removed altogether, because his visits – which went beyond the authorised occasions – were of a vexatious nature and harmful for the child. 13. The District Court then gave judgment and removed the applicant’s access rights altogether. Relying essentially on the expert’s opinion, it held that his vexatious and harmful appearances in his son’s life amounted to an abuse of his access rights and seriously endangered the child’s development and upbringing. 14. On appeal, on 4 February 2008 the Csongrád County Regional Court upheld the first-instance judgment. It held that even considering the acknowledged mutual interest of the child and his father in maintaining a family tie based on affection, this consideration was not applicable in the case, since the applicant abused his rights to influence the child in pursuit of his own religious beliefs, which triggered anxiety and fear in the boy and endangered his development. In particular, the Regional Court found, relying on the expert opinion, that the applicant’s “irrational worldview made him incapable of bringing up his child” and that he “did not exercise his right of access in accordance with its purpose ... but to impose his religious convictions on the child”. | This case concerned the total removal of a father’s access rights on the grounds that his religious convictions had been detrimental to his son’s upbringing. The applicant complained in particular that the denial of his access rights had been based on his religious beliefs and that he had been treated differently to other people seeking access rights following divorce or separation. |
278 | (3) Derogations cannot be incompatible with other obligations in international law | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. Peter Brannigan 10. The first applicant, Mr Peter Brannigan, was born in 1964. He is a labourer and lives in Downpatrick, Northern Ireland. He was arrested at his home by police officers on 9 January 1989 at 6.30 a.m. pursuant to section 12 (1) (b) of the Prevention of Terrorism (Temporary Provisions) Act 1984 ("the 1984 Act"). He was then removed to the Interrogation Centre at Gough Barracks, Armagh, where he was served with a copy of the "Notice to Persons in Police Custody" which informs the prisoner of his legal rights (see paragraph 24 below). A two-day extension of his detention was granted by the Secretary of State on 10 January 1989 at 7.30 p.m., and a further three-day extension was granted on 12 January 1989 at 9.32 p.m. He was released at 9 p.m. on 15 January 1989. He was therefore detained for a total period of six days, fourteen hours and thirty minutes. During his detention he was interrogated on forty-three occasions and denied access to books, newspapers and writing materials as well radio and television. He was not allowed to associate with other prisoners. Although access to a solicitor was at first delayed for forty- eight hours because it was believed by the police that such a visit would interfere with the investigation, the first applicant was subsequently visited by his solicitor on 11 January 1989. He was seen by a medical practitioner on seventeen occasions during police custody. B. Patrick McBride 11. The second applicant, Mr Patrick McBride, was born in 1951. He was arrested at his home by police officers on 5 January 1989 at 5.05 a.m. pursuant to section 12 (1) (b) of the 1984 Act. He was then removed to Castlereagh Interrogation Centre where he was served with a copy of the "Notice to Persons in Police Custody". A three-day extension of his period of detention was granted by the Secretary of State at 5.10 p.m. on 6 January 1989. He was released at 11.30 a.m. on Monday 9 January 1989. He was therefore detained for a total period of four days, six hours and twenty-five minutes. During his detention he was interrogated on twenty-two occasions and was subject to the same regime as Mr Brannigan (see paragraph 10 above). He received two visits from his solicitor on 5 and 7 January 1989 and was seen by a medical practitioner on eight occasions during police custody. Mr McBride was shot dead on 4 February 1992 by a policeman who had run amok and attacked Sinn Fein Headquarters in Belfast. I. REMEDIES 26. The principal remedies available to persons detained under the 1984 Act are an application for a writ of habeas corpus and a civil action claiming damages for false imprisonment. 1. Habeas Corpus 27. Under the 1984 Act, a person may be arrested and detained in right of arrest for a total period of seven days (section 12(4) and (5) - see paragraph 16 above). Paragraph 5(2) of Schedule 3 to the 1984 Act provides that a person detained pursuant to an arrest under section 12 of the Act "shall be deemed to be in legal custody when he is so detained". However, the remedy of habeas corpus is not precluded by paragraph 5(2) cited above. If the initial arrest is unlawful, so also is the detention grounded upon that arrest (per Higgins J. in the Van Hout case, loc. cit. at 18). 28. Habeas Corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful. The court hearing the application does not sit as a court of appeal to consider the merits of the detention: it is confined to a review of the lawfulness of the detention. The scope of this review is not uniform and depends on the context of the particular case and, where appropriate, the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend, inter alia, to an inquiry into the reasonableness of the suspicion grounding the arrest (Ex parte Lynch, loc. cit., and Van Hout, loc. cit.). A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose (R. v. Governor of Brixton Prison, ex parte Sarno [1916] 2 King ’ s Bench Reports 742, and R. v. Brixton Prison (Governor), ex parte Soblen [1962] 3 All England Law Reports 641). The burden of proof is on the respondent authorities which must justify the legality of the decision to detain, provided that the person applying for a writ of habeas corpus has first established a prima facie case ( Khawaja v. Secretary of State [1983] 1 All England Law Reports 765). 2. False imprisonment 29. A person claiming that he has been unlawfully arrested and detained may in addition bring an action seeking damages for false imprisonment. Where the lawfulness of the arrest depends upon reasonable cause for suspicion, it is for the defendant authority to prove the existence of such reasonable cause ( Dallison v. Caffrey [1965] 1 Queen ’ s Bench Reports 348 and Van Hout, loc. cit. at 15). In false imprisonment proceedings, the reasonableness of an arrest may be examined on the basis of the well-established principles of judicial review of the exercise of executive discretion (see Holgate -Mohammed v. Duke, loc. cit.). III. THE UNITED KINGDOM DEROGATION 30. Issues akin to those arising in the present case were examined by the Court in its Brogan and Others judgment of 29 November 1988 (Series A no. 145-B) where it held that there had been a violation of Article 5 para. 3 (art. 5-3) of the Convention in respect of each of the applicants, all of whom had been detained under section 12 of the 1984 Act. The Court held that even the shortest of the four periods of detention concerned, namely four days and six hours, fell outside the constraints as to time permitted by the first part of Article 5 para. 3 (art. 5-3). In addition, the Court held that there had been a violation of Article 5 para. 5 (art. 5-5) in the case of each applicant (Series A no. 145-B, pp. 30-35, paras. 55-62 and 66-67). Following that judgment, the Secretary of State for the Home Department made a statement in the House of Commons on 22 December 1988 in which he explained the difficulties of judicial control over decisions to arrest and detain suspected terrorists. He stated inter alia as follows: "We must pay proper regard to the tremendous pressures that are already faced by the judiciary, especially in Northern Ireland, where most cases have to be considered. We are also concerned that information about terrorist intentions, which often forms part of the case for an extension of detention, does not find its way back to the terrorists as a consequence of judicial procedures, which at least in the United Kingdom legal tradition generally require someone accused and his legal advisers to know the information alleged against him. ... In the meantime, the position cannot be left as it stands. I have already made clear to the House that we shall ensure that the police continue to have the powers they need to counter terrorism, and they continue to need to be able to detain suspects for up to seven days in some cases. To ensure that there can be no doubt about the ability of the police to deal effectively with such cases, the Government are today taking steps to give notice of derogation under Article 15 (art. 15) of the European Convention of Human Rights, and Article 4 of the International Covenant on Civil and Political Rights. There is a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ..." 31. On 23 December 1988 the United Kingdom informed the Secretary General of the Council of Europe that the Government had availed itself of the right of derogation conferred by Article 15 para. 1 (art. 15-1) to the extent that the exercise of powers under section 12 of the 1984 Act might be inconsistent with the obligations imposed by Article 5 para. 3 (art. 5-3) of the Convention. Part of that declaration reads as follows: "... Following [the Brogan and Others judgment], the Secretary of State for the Home Department informed Parliament on 6 December 1988 that, against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced. He informed Parliament that the Government were examining the matter with a view to responding to the judgment. On 22 December 1988, the Secretary of State further informed Parliament that it remained the Government ’ s wish, if it could be achieved, to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer. But a further period of reflection and consultation was necessary before the Government could bring forward a firm and final view. Since the judgment of 29 November 1988 as well as previously, the Government have found it necessary to continue to exercise, in relation to terrorism connected with the affairs of Northern Ireland, the powers described above enabling further detention without charge, for periods of up to 5 days, on the authority of the Secretary of State, to the extent strictly required by the exigencies of the situation to enable necessary enquiries and investigations properly to be completed in order to decide whether criminal proceedings should be instituted. To the extent that the exercise of these powers may be inconsistent with the obligations imposed by the Convention the Government have availed themselves of the right of derogation conferred by Article 15(1) of the Convention and will continue to do so until further notice ..." 32. The Government have reviewed whether the powers of extended detention could be conferred on the normal courts but have concluded that it would not be appropriate to involve courts in such decisions for the reasons given in a Written Answer in Parliament by the Secretary of State, Mr David Waddington, on 14 November 1989: "Decisions to authorise the detention of terrorist suspects for periods beyond 48 hours may be, and often are, taken on the basis of information, the nature and source of which could not be revealed to a suspect or his legal adviser without serious risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Any new procedure which avoided those dangers by allowing a court to make a decision on information not presented to the detainee or his legal adviser would represent a radical departure from the principles which govern judicial proceedings in this country and could seriously affect public trust and confidence in the independence of the judiciary. The Government would be most reluctant to introduce any new procedure which could have this effect". (Official Report, 14 November 1989, col. 210) In a further notice dated 12 December 1989 the United Kingdom informed the Secretary General that a satisfactory procedure for the review of detention of terrorist suspects involving the judiciary had not been identified and that the derogation would therefore remain in place for as long as circumstances require. | The applicants contended for the first time before the Court that it was an essential requirement for a valid derogation under Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights, to which the United Kingdom was a Party, that a public emergency must have been “officially proclaimed”. Since such proclamation had never taken place the derogation was inconsistent with the United Kingdom’s other obligations under international law. In their view this requirement involved a formal proclamation and not a mere statement in Parliament. |
246 | The definition of idem | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1996 and lives in St Petersburg, Russia. 6. On 12 June 2017 a protest rally (involving some 1,000 people) was held at the Marsovo Pole in St Petersburg. The applicant was present at the venue with a friend but, according to her, did not take part in the rally (see paragraph 12 below). A. The applicant ’ s arrest and pre-trial proceedings 7. According to the applicant, she was deprived of her liberty at 2.10 p.m., when the police and the National Guard surrounded the people gathered at the Marsovo Pole by way of a “ kettling technique”. The applicant was “trapped” within the circle and could not leave. 8. The applicant was then apprehended and placed in a bus. At 2.50 p.m. she was escorted to the police station by police officer K., who then compiled an escort record. It indicated that the applicant had been escorted to the police station “ in order to compile an offence record”. The escort record also stated as follows : “[The applicant] was voluntarily present among some 1,000 people, with the aim of publicly expressing her opinion and influencing others in relation to acute political issues of public interest concerning ‘ total intolerance toward corruption ’ ... She was a participant in a public event which had not been approved by the authorities ... Together with other participants standing less than ten metres from her, she uttered the slogans ‘ Putin is a thief ’ or ‘ We are fed up with Putin ’, thereby taking part in a non ‑ notified rally ... Officer S. repeatedly informed the participants, including the applicant, via loudspeaker that [they ] were violating section 6 ( 3 ) of the Public Events Act and ordered them to stop the rally and disperse ... Being afforded no less than five minutes, [the applicant] did not comply with those lawful orders ... ” 9. Officer K. also compiled a report ( рапорт ) to his superior officer. This report was worded in a way that was similar to the wording used by Officer K. Nearly identical reports were submitted by Officers A. and S. All three officers were interviewed by another official; the written record of their interviews was worded in terms that were similar or identical to those in the above -mentioned reports. 10. A record of offences under Articles 19.3 § 1 (failure to comply with a lawful order of an official in connection with the exercise of his duties) and 20.2 § 5 (violation by a participant of the procedure for a public event) of the Federal Code of Administrative Offences ( “the CAO ” ) was compiled and the applicant had access to it at 9.55 p.m. Before or after that, a record of administrative arrest was compiled in relation to the offence under Article 19.3 of the CAO, indicating that the arrest had been necessary in order to ensure “the correct and expedient examination of the case ”. 11. The applicant spent the night in the police station. It appears that at around 6 p.m. the next day she was taken to the Vasileostrovskiy District Court of St Petersburg. However, a judge adjourned the case. According to a note in the arrest record, the applicant was released at 7.54 p.m. on 13 June 2017. B. Trials on 16 June 2017 12. On 16 June 2017 judge K. of the Vasileostrovskiy District Court of St Petersburg examined, in turn, two cases against the applicant. The applicant and her lawyer were present at the trial hearings and made oral submissions to the courts. The applicant pleaded not guilty. According to her, on 12 June 2017 (which was Russia Day, an official holiday) she had been having a walk with a friend at the Marsovo Pole; she had not been in possession of any banners, flags or the like, and had not uttered any slogans; she had seen some people with flags, at a distance from her; she had not heard any order to disperse. 13. The trial court dismissed an application lodged by the defence to have a public prosecutor summoned to the hearing in order to support the charge against the applicant. 14. By two separate judgments of 16 June 2017 judge K. found the applicant guilty of the offences under Articles 19.3 § 1, and fined her 500 Russian roubles (RUB), and 20.2 § 5 of the CAO and fined her RUB 10,000 (EUR 7 and 140 at the time when the fines were due (29 June 2017)). C. Appeal hearings on 29 June 2017 15. The applicant appealed to the St Petersburg City Court. She argued, inter alia, that the alleged disobedience to the order to stop her participation in the rally might be an aggravating circumstance to weigh within the offence under Article 20.2 of the CAO. However, it could not amount to a separate offence, without violating the principle of ne bis in idem. In her appeal relating to Article 20.2 of the CAO, the applicant argued that the overall set of facts held against her in both cases was identical; the offence record for both offences was worded in identical terms, too. 16. The applicant also argued that the trial proceedings had been unfair in that her conviction had been based on the pre-trial statements given by the police officers, whereas the defence had been afforded no opportunity to examine them; the trial court had adduced no reasons confirming that the reliance on the written testimony without providing the defence with a possibility of contesting it in open court had been a measure of last resort. 17. Both cases were assigned to Judge L. of the City Court. On 29 June 2017 that judge examined the cases in turn. It is, however, unclear in which order the two cases were examined. The appeal court upheld the judgments of 16 June 2017. 18. The appeal decision in the case relating to Article 20.2 of the CAO dismissed the ne bis in idem argument, indicating that that Article concerned liability for violating regulations on public events, whereas Article 19.3 of the CAO concerned liability for disobedience to lawful orders from a public official. As to the arguments relating to the refusal to summon the police officers, the appeal court held as follows: “ The trial court took cognisance of the evidence adduced by the defence, namely a photograph and a video recording. Having assessed them, the court rightly concluded that they did not rebut the other evidence and did not plead in favour of the defendant ’ s innocence because they disclosed that the defendant had been present in the group of other people and had been apprehended by the police ... The defence argued that the trial court had relied on the documentary evidence while refusing to summon and examine the police officers ... Those arguments do not disclose a violation of the defendant ’ s right to a fair judgment. It was within the trial judge ’ s competence to determine the scope of evidence that was needed for determining the charge. The trial judge examined all the available evidence; there were no reasons for seeking additional evidence, the available evidence being sufficient for establishing all the relevant circumstances of the case.” 19. The appeal decision relating to Article 19.3 of the CAO reads as follows: “There are no grounds to consider that the defendant was tried twice, under Article 20.2 and Article 19.3 of the CAO, for the same actions. Article 20.2 provides for liability in relation to breaching the regulations relating to public events, whereas Article 19.3 of the CAO concerns liability for disobedience to lawful orders from a public official ... As to the arguments relating to the non-compliance with the European Convention on human rights and fundamental freedoms in relation to recourse to the arrest procedure, it is noted that Article 27.1 of the CAO provides for certain measures that could be applied to put an end to an offence, identifying a perpetrator, compiling an offence record, ensuring timely and correct examination of a case, or ensuring execution of a decision taken in that case. Administrative arrest is listed as one such measure ... It follows from the meaning of Article 27.3 § 1 of the CAO that it is possible to use administrative arrest, inter alia, for the purpose of ensuring the correct and expedient examination of a case. Thus, the defendant ’ s administrative arrest was in compliance with the CAO and international law ... ” | This case concerned the applicant being convicted of two separate offences originating in the similar circumstances of an unauthorised rally. |
697 | Online hate speech | I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant, Magyar Tartalomszolgáltatók Egyesülete (“MTE”) is an association seated in Budapest. It is the self-regulatory body of Hungarian Internet content providers, monitoring the implementation of a professional code of Internet content providing and a code of ethics, as well as operating an arbitration commission whose decision are binding on its eleven members. The second applicant, Index.hu Zrt (“Index”) is a company limited by shares, seated in Budapest. It is the owner of one of the major Internet news portals in Hungary. 6. At the material time both applicants allowed users to comment on the publications appearing on their portals. Comments could be uploaded following registration and were not previously edited or moderated by the applicants. 7. The applicants advised their readers, in the form of disclaimers, that the comments did not reflect the portals ’ own opinion and that the authors of comments were responsible for their contents. 8. Both applicants put in place a system of notice-and-take-down, namely, any reader could notify the service provider of any comment of concern and request its deletion. In addition, in the case of Index, comments were partially moderated, and removed, if necessary. 9. Both portals stated that comments infringing the personality rights of others could not be uploaded on the websites. 10. Index ’ s “Principles of moderation” contained the following: “ I. Deletion of comments 1. 1. Especially forbidden are: 1. comments that, at the time of their posting, infringe the laws of Hungary, indicate or incite to crime or any other unlawful act ... 3. vulgar, aggressive, threatening comments. What is vulgar, aggressive or threatening has to be decided by the moderators, in the light of the given topic ... ” 11. On 5 February 2010 MTE published an opinion under the title “Another unethical commercial conduct on the net” about two real estate management websites, owned by the same company. According to the opinion, the two websites provided thirty-day long advertising service for their users free of charge. Following the expiry of the thirty-day free period, the service became subject to a fee; and this without prior notification of the users. This was possible because, by registering on the website, the users accepted the terms and conditions stipulating that they could be changed unilaterally by the service provider. The opinion also noted that the service provider removed any obsolete advertisements and personal data from the websites only if any overdue charges were paid. The opinion concluded that the conduct of the service provider was unethical and misleading. 12. The opinion attracted some comments of users, acting under pseudonyms, amongst which there were the following: “They have talked about these two rubbish real estate websites (“ két szemét ingatlanos oldalról ” ) a thousand times already. ” “ Is this not that Benkő - Sándor -sort-of sly, rubbish, mug company (“ benkősándoros sunyi szemét lehúzó cég ” ) again? I ran into it two years ago, since then they have kept sending me emails about my overdue debts and this and that. I am above 100,000 [Hungarian forints] now. I have not paid and I am not going to. That ’ s it.” 13. On 8 February 2010 the Internet portal www.vg.hu, operated by Zöld Újság Zrt, reproduced the opinion word by word under the title “Another mug scandal”. 14. The consumer protection column of Index also wrote about the opinion under the title “Content providers condemn [one of the incriminated property websites] ”, publishing the full text of the opinion. One of the user comments posted on Index by a reader acting under a pseudonym read as follows: “ People like this should go and shit a hedgehog and spend all their money on their mothers ’ tombs until they drop dead. ” ( “ Azért az ilyenek szarjanak sünt és költsék az összes bevételüket anyjuk sírjára, amíg meg nem dögölnek .” ) 15. On 17 February 2010 the company operating the websites concerned brought a civil action before the Budapest Regional Court against the applicants and Zöld Újság Zrt. The plaintiff claimed that the opinion, whose content was false and offensive, and the subsequent comments had infringed its right to good reputation. Once learning of the impending court action, the applicants removed the impugned comments at once. 16. In their counterclaims before the Regional Court, the applicants argued that they, as intermediary publishers under Act no. CVIII of 2001, were not liable for the user comments. They noted that the business practice of the plaintiff, affecting wide ranges of consumers, attracted numerous complaints to the consumer protection organs and prompted several procedures against the company. 17. On 31 March 2011 the Regional Court partially sustained the claim, holding that the plaintiff ’ s right to good reputation had been infringed. As a preliminary remark, the court observed that consumer protection bodies had instituted various proceedings against the plaintiff company, since it had not informed its clients adequately about its business policies. The Court found that the comments ( see paragraphs 12 and 14 above) were offensive, insulting and humiliating and went beyond the acceptable limits of freedom of expression. The court rejected the applicants ’ argument that they were only intermediaries and their sole obligation was to remove certain contents, in case of a complaint. It found that the comments constituted edited content, fell in the same category as readers ’ letters and the respondents were liable for enabling their publication, notwithstanding the fact that later on they had removed them. As regards the content of the opinion as such, the court found that it had contributed to an on-going social and professional debate on the questionable conduct of the real estate websites and did not exceed the acceptable level of criticism. 18. Both parties appealed. In their appeal the applicants argued that the plaintiff had not requested them to remove the offensive comments. Nonetheless, they had done so as soon as soon as they had been informed of the plaintiff ’ s action. They also argued that users ’ comments were to be distinguished from readers ’ letters, since these latter were only published on the basis of editorial decisions, whereas comments did not constitute edited content. They argued that, in respect of comments, they had only acted as service providers of information storage. 19. On 27 October 2011 the Budapest Court of Appeal upheld in essence the first-instance decision but amended its reasoning. It ordered each applicant to pay 5,000 Hungarian forints (HUF) as first-instance and HUF 36,000 as second-instance procedural fee. 20. The Court of Appeal held that – as opposed to readers ’ letters whose publication was dependent on editorial decisions – the comments, unedited, reflected the opinions of the sole commenters. Notwithstanding that, the owner of the website concerned was liable for them. According to the court ’ s reasoning, Act no. CVIII of 2001, transposing Directive 2000/31/EC on Electronic Commerce into Hungarian law, did not apply to the applicants ’ case since it only related to electronic services of commercial nature, in particular to purchases through the Internet. Under section 2(3) of the Act, electronic commercial services were information society-related services whose purpose was the sale, purchase or exchange of a tangible and moveable property, which was not the situation in the applicants ’ case. In any event, pursuant to its section 1(4), the scope of the Act did not extend to expressions made by persons acting outside the sphere of economic or professional activities or public duties, even if uttered in connection with a purchase through the Internet. For the Court of Appeal, the comments were private utterances which did not fall under Act no. CVIII of 2001 on Electronic Commercial Services. Thus, there was no reason to assess the meaning of the terms of ‘ hosting service providers ’ and ‘ intermediaries ’ under that Act. Nonetheless, the comments attracted the applicability of the Civil Code rules on personality rights, notably Article 78. Since the comments were injurious for the plaintiff, the applicants bore objective liability for their publication, irrespectively of the subsequent removal, which was only relevant for the assessment of any compensation. 21. The applicants lodged a petition for review with the Kúria. They argued that, in their interpretation of the relevant law, they were under no obligation to monitor or edit the comments uploaded by readers on their websites. 22. On 13 June 2012 the Kúria upheld the previous judgments. It stressed that the applicants, by enabling readers to make comments on their websites, had assumed objective liability for any injurious or unlawful comments made by those readers. It rejected the applicants ’ argument that they were only intermediary providers which allowed them to escape any liability for the contents of comments, other than removing them if injurious to a third party. The Kúria held that the applicants were not intermediaries in terms of section 2( lc ) of Act no. CVIII and they could not invoke the limited liability of hosting service providers. It shared the Court of Appeal ’ s view in finding that the comments were capable of harming the plaintiff ’ s good reputation and that the applicants ’ liability consisted of their having allowed their publication. The Kúria imposed HUF 75,000 on each applicant as review costs, including the costs of the plaintiff ’ s legal representation. This decision was served on 2 October 2012. 23. The applicants introduced a constitutional complaint on 3 January 2013, arguing in essence that the courts ’ rulings holding them responsible for the contents of the comments amounted to an unjustified restriction on their freedom of expression. 24. On 11 March 2013 the Constitutional Court declared the complaint admissible. 25. On 27 May 2014 the Constitutional Court dismissed the constitutional complaint, ( decision no. 19/2014. (V. 30.) AB ). In the analysis of the proportionality of the interference, the Constitutional Court explained the absence of unconstitutionality in the case as follows. “ [43] In the case concerned by the Kúria ’ s judgment, the operator of the webpage did not moderate the comments. The identities of those primarily responsible, unless figuring nominatively, are unknown; and for that reason, the liability lies with the operator of the webpage. [44] In the present case, the aggrieved fundamental right is not the right to freedom of expression as such, but one of its particular elements, the right to freedom of the press. [50] It is without doubt that blogs and comments constitute expressions and as such attract the protection of Chapter IX of the Fundamental Law. [59] The liability incumbent on the operator of the webpage obviously restricts freedom of the press – which includes, without doubt, communication on the Internet. [63] The legislation pursues a constitutionally justified aim. It is also suitable for that purpose in that, without the liability of the operator of the webpage, the person concerned could hardly receive compensation for the grievance. However, the proportionality of the restriction is open to doubt from two perspectives: is it proportionate to hold the operator of the webpage liable for the expression which proved to be unlawful; and moreover, is the extent of the liability (that is, the amount of compensation) proportionate? [65] If the liability for the publication of comments is based on the very fact of the publication itself, it is not justified to distinguish between moderated and non-moderated comments in regard to the proportionality of the restriction on the fundamental right in question. ... The Constitutional Court has already held that the liability of press organs – not of the author – as applied in order to protect personality rights is constitutional.” | This case concerned the liability of a self-regulatory body of Internet content providers and an Internet news portal for vulgar and offensive online comments posted on their websites following the publication of an opinion criticising the misleading business practices of two real estate websites. The applicants complained about the Hungarian courts’ rulings against them, which had effectively obliged them to moderate the contents of comments made by readers on their websites, arguing that that had gone against the essence of free expression on the Internet. |
182 | Risk of being subjected to domestic violence in case of deportation | I. THE CIRCUMSTANCES OF THE CASE A. Proceedings before the Swedish authorities and courts 6. The applicant was born in 1970 and lives in Fagersta. 7. On 13 August 2004 the applicant and her husband, X, arrived in Sweden and on 16 August 2004 they applied to the Migration Board ( Migrationsverket ) for asylum and residence permits. The applicant was interviewed on 4 October 2004 and 8 March 2005. She had no identity papers and could not prove her identity. She stated that she was born and grew up in Kabul, where her parents, one of her two brothers, an aunt and an uncle resided. Her other brother had left Afghanistan a long time ago. She also had an uncle in Mazar-e-Sharif. The applicant had attended school for twelve years in Kabul and had studied at the university. 8. The applicant and her spouse also submitted that they had been persecuted since 1996 because X had been a politically active member of the communist party, leading to his arrest on two occasions. Following his second release they had moved to Kabul, but they alleged that some fundamentalists had come looking for X there as well with the intention of killing him. The applicant submitted that she also had shown her political stance by acting as a teacher for women, which was not accepted by parts of the leading elite in Kabul. Therefore, they had fled the country. When they had left their home, they had stayed with her uncle in Mazar-e-Sharif and the latter had helped them finance their journey to Sweden by paying a smuggler 24,000 US Dollars. Lastly, X invoked his poor mental health, stating that he was suffering from anxiety, sleeplessness and aggressive behaviour. 9. On 29 March 2005 the Migration Board rejected the couple's application. It first noted that the security situation in Afghanistan varied between different parts of the country but that it was better in Kabul than in other parts of the country. The Board then considered that X had given vague information about his activities and had failed to demonstrate that he had held a prominent or leading position within the communist party. Hence, it questioned the claim that his life would be endangered because of his membership of that party. The Board therefore found that neither X nor the applicant had shown that they had been persecuted in Afghanistan or that they would risk persecution upon return. Thus, even having regard to X's poor mental health, the Board found that there were no grounds on which to grant them leave to remain in Sweden. 10. The applicant and her husband appealed against the decision to the then Aliens Appeal Board, which subsequently transmitted the case to the Migration Court ( Migrationsdomstolen ). The applicant maintained her claims and added that the threats against her and X stemmed from X's previous political activities and from her activities in educating women and that the authorities had not been able to protect them, not even in Kabul. The applicant further submitted that she had separated from X in June 2005, lived alone and intended to obtain a divorce although X opposed it. Due to this, she had been criticised by some of X's friends, been called a “bad woman” and some other Afghans had spread untrue rumours about her. By separating from X, she had broken with Afghan traditions which meant that she risked serious persecution if forced to return to her home country. In this respect, she pointed out that she would not be able to obtain a divorce in Afghanistan and that by trying to obtain a divorce in Sweden she had dishonoured both her own and X's family. Consequently, her own family had disowned her and she would risk reprisals from X's family. It would also be impossible for her to find work and, since she and X had no children, she would be a social outcast. She further mentioned that the punishment for adultery in Afghanistan was stoning. Lastly, she stated that she suffered from psychological problems and was in need of treatment in Sweden. 11. The Migration Board contested the appeal and submitted, inter alia, that X had stated that his father had held a higher position than him in the party but that he had not been threatened. It further claimed that, having regard to X's poor mental health, it should be possible for the applicant to obtain a divorce. Moreover, it appeared that X would agree to a divorce. Lastly, it did not question that the applicant's family was dissatisfied with her decision to separate from her husband but it had not been shown that they had disowned her. 12. On 19 March 2007, after holding an oral hearing, the Migration Court rejected the appeal. It first considered that it had not been shown that X, on account of his previous political activities, would be of interest to any resistance groups in Afghanistan. It then observed that quite some time had passed since the applicant had taught women in her home country. Moreover, the court noted that the previous Taliban ban on education for women had been replaced by affirmative action for women and that the constitution stated that the State should actively support women's education. Therefore, the court found that the applicant had not demonstrated that she had a well-founded fear of persecution because of her previous work as a women's teacher. As concerned the applicant's personal life, the court observed that she had not formally divorced X although they had separated. In its view, nothing had appeared in the case which showed that the applicant faced a concrete and individual risk of persecution for having broken with Afghan traditions. It further noted that the applicant had stated that she had not had an extramarital affair, for which reason there was no risk that she would be convicted of adultery and sentenced to death. In this respect, the court considered that the applicant had not shown that the alleged rumours about her had come to the knowledge of the Afghan authorities. Turning to her claim that she would lack a social network in Afghanistan, the court found that the applicant had not demonstrated that her family in Afghanistan had rejected her and, hence, she had a social network there. It further took into account that she was well-educated and thus concluded that she had failed to show that she would face a real risk of being persecuted or subjected to inhuman or degrading treatment or punishment. Therefore, and since the court did not find that any of the other reasons submitted by the applicant were sufficient to grant her exceptional leave to remain, the appeal was rejected. 13. The minority of the court wanted to grant the applicant leave to remain in Sweden on the ground that, since she did not have any children and had separated from her husband, she had shown that she would risk degrading treatment upon return to her home country. 14. The applicant appealed against the judgment to the Migration Court of Appeal ( Migrationsöverdomstolen ) which, on 4 September 2007, refused leave to appeal. This decision was final and the applicant's deportation order thus became enforceable. 15. On 27 October 2007 invoking new circumstances, the applicant lodged an application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board. 16. On 28 January 2008 the applicant lodged a new application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board. 17. In February 2008 the applicant petitioned the District Court ( tingsrätten ) of Västmanland for a divorce from X. The latter informed the District Court on 17 July 2008 that he opposed a divorce. The applicant submitted that she had separated from her husband in 2005 and only seen him once since then. Moreover, she intended to invoke the divorce as one of the grounds to stop her deportation. 18. In a decision of 19 November 2008, the court dismissed her petition on the ground that it was not competent to dissolve her marriage since she did not have a legal right to reside in Sweden. 19. In the meantime, on 17 October 2008, the applicant requested the Migration Board to re-evaluate her case and stop her deportation. As grounds for her request, she claimed that the situation in Kabul had worsened considerably since the Migration Board's previous decision. She further alleged that she now had a well-founded fear of persecution upon return to Afghanistan since she had started a relationship with a Swedish man. Thus, she had committed adultery and risked the death penalty in Afghanistan. She had not been in touch with her family since the summer of 2005. 20. She also submitted a letter from the UNHCR Regional Office for the Baltic and Nordic Countries, dated 2 October 2008, which stated, inter alia, the following: “UNHCR's views on the protection needs of Afghan female asylum-seekers are fully set forth in the UNHCR's Eligibility Guidelines for Assessing the International Protection needs of Afghan Asylum ‑ seekers. ... In the context of Afghanistan, UNHCR would like to draw to your attention to the fact that an assessment of a refugee claim of an Afghan female asylum-seeker, should take into account the specifically vulnerable situation in which Afghan women are found, including pressure from within families, communities, and by the public to conform [to] behaviour in accordance with particular codes of behaviour. In this regard, a separation and/or divorce effected in the country of asylum, may indicate adoption of a Westernised way of life and be perceived as, or actually transgressing, prevailing social mores and thereby indicates a heightened risk of sur place persecution linked to the grounds of religion and/or political opinion under the scope of Article 1 A (2) of the 1951 Refugee Convention. ... UNHCR notes that Afghan female asylum-seekers'reliance for relative social, cultural and economic freedom is exclusively dependent on the existence of male protection (husband, father, brother or extended family member) and that lack of such networks may seriously undermine a returnee's personal physical, economic and emotional security.” 21. On 24 October 2008 the Migration Board refused to reconsider the applicant's case as she had failed to invoke any new circumstances of importance. It considered that the applicant had only developed and clarified those grounds which had already been examined by it and the migration courts. The Board also found that there were no impediments to the enforcement of the deportation order. 22. The applicant appealed against the decision to the Migration Court, maintaining the grounds invoked before the Board and insisting that these were new circumstances of importance. On 4 December 2008 the court rejected the appeal, upholding the Board's decision and reasoning in full. 23. On 21 January 2009 the Migration Court of Appeal refused leave to Appeal and, on 17 February 2009, the case was transferred to the Police Authority to enforce the deportation order. 24. Finally, on 17 April 2009 the applicant lodged a third application for a residence permit under Chapter 12, Section 18, of the Aliens Act, which was refused by the Migration Board. B. Proceedings and new submissions before the Court 25. On 28 April 2009 the applicant lodged the case with the Court and on 11 May 2009 the President of the Chamber decided to apply Rule 39 of the Rules of Court, indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant until further notice 26. In her observations of 4 November 2009 the applicant submitted that already before leaving Afghanistan, she had told her mother about her problems with her husband. In October 2005 the applicant had called home and told her mother that she and her husband had separated. The mother had become very upset and said that it was totally wrong and that the applicant should go back to her husband. She had then talked to her father who became furious and shouted that she brought dishonour to the family. The conversation had ended because the applicant ran out of money on her telephone card. The father had called her back the following day to try to persuade her to change her mind and talked about honour, shame and her disgracing the family. In the end he had shouted that she was go back to her husband or the family would not have anything more to do with her. She was no longer his daughter. After the conversation, the applicant had called her uncles in Kabul and Mazar-e Sharif to have their support but they had both repeated the words of her father. That had been the last conversation between the applicant and her relatives. 27. With the applicant's observations of 4 November 2009 she also enclosed a letter of 31 October 2009 “to whom it may concern” by a named Swedish man who confirmed having a relationship with the applicant. He stated, inter alia, that they had met for the first time in the autumn of 2007, that their relationship had started in February 2008 and that they had been living together in his apartment since April 2009. 28. In reply the Government observed on 15 January 2010 that the facts now presented by the applicant in her observations were never submitted to the Swedish authorities in spite of the fact that these could be considered relevant to her claim for asylum. Notably, regarding the claim that the applicant and the said Swedish man have been living together since April 2009, the Government noted that the applicant has still not changed her registered mail address in Fagersta although her new residence is apparently far away. | The applicant, an Afghan national, arrived in Sweden with her husband in 2004. Their requests for asylum were refused several times. In 2005 the applicant separated from her husband. In 2008 her request for a divorce was refused by the Swedish courts as they had no authority to dissolve the marriage as long as the applicant did not reside legally in the country. Her husband informed the court that he opposed a divorce. In the meantime, the applicant unsuccessfully requested the Swedish Migration Board to re-evaluate her case and stop her deportation, claiming that she risked the death penalty in Afghanistan as she had committed adultery by starting a relationship with a Swedish man and that her family had rejected her. |
531 | Death in police custody or in detention | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant, Mrs Assya Anguelova, is a Bulgarian national who was born in 1959 and lives in Razgrad. 10. On 29 January 1996 her son, Anguel Zabchekov, aged 17, who had been known to the police as a suspect on theft charges, died after having spent several hours in police custody in Razgrad following his arrest for attempted theft. The ensuing investigations conducted by the prosecution authorities ended with the conclusion that the death must have been caused by an accidental injury which pre-dated Mr Zabchekov's arrest. The applicant contested that conclusion. The applicant describes herself and her late son as belonging to the Roma/Gypsy ethnic group). A. Evidence about the whereabouts of Mr Zabchekov on 28 January 1996 11. According to the statements of several witnesses, on 28 January 1996 Mr Zabchekov spent part of the day doing some odd jobs for a neighbour. In the evening he went home for a while and then went out with his sister, her boyfriend and a Mr M., another friend of his. He then spent most of the evening in their company at a local bar. He consumed alcohol. At about 10.30 p.m. or 11.30 p.m. Mr Zabchekov's sister and her boyfriend left the bar, leaving him there with Mr M. The bar closed shortly afterwards. Mr M. stated that he had then left the bar with Mr Zabchekov and that they had parted at the door, Mr M. returning home. All the witnesses (the owner of the bar, the person for whom Mr Zabchekov had worked that day, his sister and her boyfriend, and Mr Zabchekov's father, who was at home when his son dropped in on his way to the bar) were unanimous that he had been in good health, that he had no visible injuries on his body, that he had not been involved in any quarrel or fight, and that he had consumed alcohol. B. The chase in Beli Lom Street and Mr Zabchekov's arrest 12. At about midnight on 29 January 1996 a Ms I.A., who lived in a block of flats in Beli Lom Street in Razgrad, noticed from her balcony a man later identified as Mr Zabchekov hanging around by parked cars, bending over and “doing something”. Ms I.A. telephoned a neighbour, Ms I.M. The two women shouted at Mr Zabchekov from their balconies to ask him what he was doing. At that moment Sergeant Mutafov (“C”), a police officer who was not on duty that day, and a young man (“D”), both of whom also lived in the same block of flats, were passing by in the street and were alerted by their neighbours. 13. Mr Zabchekov attempted to run away, and C ran after him. The chase apparently continued for a minute or two. Then D and his two neighbours saw C appearing from around the corner, holding Mr Zabchekov and leading him back to the entrance of the building. The witnesses stated that there had been snow on the ground. 14. C later stated that while trying to run away Mr Zabchekov had slipped and fallen down but had quickly stood up again. This was confirmed by Ms I.A. and Ms I.M., who had been watching from their balconies. They explained that Mr Zabchekov had fallen on a patch of grass. However, D, who had remained in the street and had also observed the incident, stated that he had not seen Mr Zabchekov falling at any moment before his arrest. He repeated that statement at a confrontation with the other witnesses. 15. C was the only witness of the events between the moment when Mr Zabchekov and he had turned round the corner and the moment when they had reappeared in front of the building in Beli Lom Street. C stated that Mr Zabchekov had slipped and fallen down two more times. As a result, C had been able to catch up with him and, while Mr Zabchekov was back on his feet and running, C had tripped him up, Mr Zabchekov had fallen to the ground and C had pounced on him. C had then pulled Mr Zabchekov up by the arm and had led him back. Asked to specify the part of his body on which Mr Zabchekov had fallen, C replied that the boy had fallen on his face. C could not remember whether Mr Zabchekov had protected his face with his hands. C also stated that he had had difficulty in running and apprehending Mr Zabchekov because he had had a leg injury and his shoelaces had been untied. 16. Sergeant Dimitrov (“G”), one of the police officers who arrived later, stated as follows: “When we arrived on the spot [C] told us that while he was trying to arrest Mr Zabchekov the latter ran away and fell two or three times and that if he had not fallen C would not have been able to catch up with him.” C. Events between Mr Zabchekov's arrest and the arrival of the police 17. The witnesses were unanimous that, while C had been leading Mr Zabchekov back to the entrance of the block of flats, the latter had slipped and fallen. There were discrepancies as to precisely how that had happened. Ms I.M., who observed the incident from her balcony, stated that when C and Mr Zabchekov had reappeared from around the corner of the building, the latter had slipped, fallen and rolled over. D stated, however, that Mr Zabchekov's leg had slipped and he had fallen on his buttocks. C maintained that Mr Zabchekov had in fact only slipped but had not fallen, because he had been holding him. 18. C stated that he had not hit Mr Zabchekov and had not seen anyone hitting him. That was confirmed by Ms I.A. and Ms I.M. The latter, who was also the owner of one of the cars in the car park, clarified that she had indeed seen Mr Zabchekov rolling on the ground when C was leading him back after the chase, but stated that she had not seen anyone kicking him or beating him. D did not mention whether he had seen anyone hitting Mr Zabchekov. 19. C also stated that when he had been in close contact with Mr Zabchekov after arresting him he had not noticed any traces of blood or any grazes on his face. He added that Mr Zabchekov's hair covered part of his forehead and that the colour of his face was dark. D stated that he had not noticed any blood or grazing on Mr Zabchekov's face. He added that the latter smelled of alcohol. 20. Having apprehended Mr Zabchekov, C asked Ms I.M. to call the police, which she did at about 12.20 a.m. Afterwards, she remained inside her flat. 21. C, D and Mr Zabchekov waited at the entrance of the block of flats, apparently for about ten or twenty minutes. It appears that Ms I.A., who stayed on her balcony, did not have a view of the entrance. 22. The witnesses' statements contain few details as to whether there was any kind of verbal exchange between Mr Zabchekov and any of them before the arrival of the police. Some of the witnesses stated that Mr Zabchekov had been mumbling something barely comprehensible. According to Ms I.M., who was watching from her balcony, Mr Zabchekov had repeated several times that he was drunk. Ms I.A., Ms I.M. and C stated that, when Mr Zabchekov had fallen to the ground after being arrested, C had told him: “Get up, I'm not going to drag you.” D stated that he had not heard any such words being uttered. None of the witnesses' statements indicates whether C or D spoke with Mr Zabchekov during the time when they were alone with him at the entrance of the block of flats. 23. In the statement he gave on 29 January 1996, C said that, after the police had left with Mr Zabchekov, he had found a wrench on the spot where D, Mr Zabchekov and himself had been waiting for the police to arrive. C thought that it must have belonged to Mr Zabchekov as it was the right size for removing a car battery. C explained in his statement that he had kept the wrench and had handed it over to the investigator in the morning on 29 January 1996 when he had been summoned to the police station after the death of Mr Zabchekov. However, in a statement taken on 31 January 1996 Sergeant Atanassov (“H”), who had been on duty at the police station when Mr Zabchekov was brought there, said that he had noticed the wrench on a desk at the police station no later than 1.30 a.m., shortly after Mr Zabchekov had arrived there. At a confrontation with the other police officers on 26 April 1996, H recalled that he had in fact first seen the wrench at a later stage. D. The arrival of the police at Beli Lom Street 24. When the telephone call was received at the local police station a patrol car with two police officers, Sergeants Penchev (“A”) and Kolev (“B”), was dispatched to the address. When the police officers arrived they saw C and Mr Zabchekov at the entrance of the block of flats. D was also standing nearby. 25. A recognised Mr Zabchekov, whom he knew as a suspect in several pending theft investigations, and addressed him by name. He handcuffed him. A and some of the other police officers later asserted that at that moment A warned the others to be careful as Mr Zabchekov had a “brain disease”. 26. Another police car, with three police officers, Sergeants Ignatov (“E”), Georgiev (“F”) and Dimitrov (“G”), arrived shortly afterwards. The officers then proceeded to search the area for evidence of attempts by Mr Zabchekov to break into cars. At some point, A led Mr Zabchekov to one of the cars which appeared to have been broken into and asked him whether he had been trying to steal anything. Mr Zabchekov allegedly denied this. He was then handcuffed to a small tree and the police officers continued to search the area. Having identified two cars which had been broken into, the police officers rang the owners' doorbells. One of them came out and went to see the damage done to his car. During that time Mr Zabchekov remained handcuffed to the tree. 27. The only witnesses who gave details about the events between the police's arrival and their departure with Mr Zabchekov were the police officers on duty. Ms. I.A., and D merely stated that the police officers had searched the area. C stated that he had gone to alert the owners of the cars. He had only seen that at a certain point Mr Zabchekov was with the police officers at the car park, where his colleagues were comparing the soles of Mr Zabchekov's shoes with traces visible in the snow. One of the car owners was questioned, but only in respect of the damage caused to his car, by a police officer who visited the site later, at about 11 a.m. on 29 January 1996. 28. According to some of the police officers, at some point when they were searching the area they had noticed Mr Zabchekov lying or sitting on the ground. A stated that at that point he had released Mr Zabchekov from the tree, placed him on the back seat of the police car and handcuffed both his hands. All the police officers who were present in Beli Lom Street stated that at that time they had not noticed any trace of injury on Mr Zabchekov's face. Some of them stated that he appeared to be drunk, and that he had been mumbling and had not been communicative. E. Events after Mr Zabchekov's arrival at the police station 29. At about 12.50 a.m. Mr Zabchekov was taken to the police station by A and B. The sergeant on duty, H, stated that he had seen A and B enter the police station with Mr Zabchekov walking between them. The latter's hands had been handcuffed behind his back. A and B had been holding him by the arms and leading him in. Mr Zabchekov had been put in office no. 1. A stated that at that point he had removed the handcuffs from the boy. 30. No written order for Mr Zabchekov's detention was issued. 31. According to the statements of A, B and H, Mr Zabchekov stayed in office no. 1 with B and H, while A went to report to the senior officer on duty, Colonel Iordanov (“I”). H further stated that at that moment he had noticed a bruise on Mr Zabchekov's eyebrow. A and B did not mention any injury. H also stated that Mr Zabchekov's clothes had been wet. They all noticed that Mr Zabchekov had been drunk and mumbling. Colonel I stated that A had informed him that Mr Zabchekov had been brought to the police station; A had said that the arrested person had been identified, but was too drunk for questioning. Colonel I had not seen Mr Zabchekov until about 4.30 a.m. According to the sergeants' statements, Colonel I had ordered that Mr Zabchekov should be given a seat in the passage to sober up. A had then instructed H to call him over the radio as soon as Mr Zabchekov was able to communicate. At an unspecified time A and B had left the police station and returned to their patrol duties. 32. H stated that Mr Zabchekov had fallen asleep soon afterwards, on a chair in the passage, and had been snoring. At about 3 a.m. H had allegedly noticed that Mr Zabchekov had been lying asleep on the floor. H had woken him and put him back on the chair, thinking that “he might catch a cold”. H further stated that at about 3.50 a.m. he had again gone to see Mr Zabchekov who had been sitting on the chair, sleeping and shivering. H had decided to move him back to office no. 1, where it had been warmer. He had woken him and helped him enter the room. Shortly afterwards Mr Zabchekov had slipped from the chair. H had noticed that he had been breathing heavily. H stated that at that point he had contacted Sergeant Dontchev (“J”), and had told him “to call Sergeant Penchev [A] or an ambulance”. 33. J stated that, in accordance with the duty schedule, he had slept on the premises of the police station until 2 a.m. on 29 January 1996, when he had been woken for duty. He had not been informed that anyone was being detained. J's statement did not mention whether, between 2 a.m. and 3.50 a.m., he had gone down the passage where, at that time, according to H, Mr Zabchekov had been sleeping on a chair. J stated that he had only become aware of Mr Zabchekov's presence when at 3.50 a.m. H had reported that the boy's condition seemed to be deteriorating. J had then seen him, noticing injuries on his forehead, and had called A and B by radio. 34. At approximately the same time H or J had alerted Colonel I, the senior officer on duty. I stated that at that moment he had noticed injuries on Mr Zabchekov's face. 35. A and B stated that at 4.30 a.m. they had been contacted by radio and had been told that Mr Zabchekov's condition was rapidly deteriorating. Arriving at the police station, the sergeants had seen Mr Zabchekov lying on the ground, breathing heavily. B had then driven to the hospital and had returned, with Dr Mihailov, the paediatrician on duty, following in an ambulance. 36. Dr Mihailov later stated that at about 5 a.m. the hospital employee in charge of emergencies had asked him to go to the police station “for a 15-year-old boy”. Dr Mihailov explained that he had seen that employee talking to the police officers. He also pointed out that he had not been given any prior information about the boy's condition. 37. Dr Mihailov examined Mr Zabchekov at the police station and advised that he should be taken to hospital as his pulse rate was low. Mr Zabchekov was driven to the hospital in the ambulance, with A and B following in their police car. When they arrived at the hospital, A and B helped to bring Mr Zabchekov to the corridor in front of the office of the doctor on duty. According to the statements of A and B, when Mr Zabchekov was examined several minutes later by Dr Ivanova, the internist on duty, there had followed a heated discussion between her and Dr Mihailov. The police officers had then been informed that Mr Zabchekov had died. 38. B stated that Dr Ivanova had said to him and his colleague: “You must have known Mr Zabchekov's condition”, and that she had insisted that she had not seen him breathing. 39. Dr Mihailov stated that in the police station he had noticed bruises on Mr Zabchekov's chest and that at that time the boy had still been alive but had been unconscious with a weak pulse. Dr Mihailov had then asked the police officers how long the boy had been in such a condition. The police officers had replied: “He was brought to the police station in that condition. 40. Dr Ivanova stated that at about 5 a.m. she had been asked by Dr Mihailov to verify whether a patient who had been brought to the hospital had died. Having found that no cardiac activity was noticeable she had attempted cardiac massage, but to no avail. She further stated that, when she had asked why Dr Mihailov, and not herself, as the internist on duty, had been dispatched to the police station, the hospital employee in charge of emergencies had replied that the request for an ambulance had been said to concern a child, and so it had been decided to send the paediatrician on duty. F. The register kept at the Razgrad police station 41. According to normal practice, all detentions are recorded in a register kept at the police station. The register contains a series of entries organised in columns: the number assigned to the detainee, the name of the officer entering information into the register, the name of the detainee, the reasons for detention, the action taken and the time of release. Information corresponding to each detainee is entered in chronological order. 42. At the Court's request the Government submitted a copy of the Razgrad police station's register for 29 January 1996. The register does not contain an entry for Mr Zabchekov. However, it contains an entry for an “unidentified person” who was assigned number 72. 43. The register does not contain a separate column recording the time of detention. In respect of some of the detainees listed on the same page the time of detention is mentioned together with the date. In respect of the “unidentified person”, as with some of the other detainees listed on the same page, there is no mention of the time of detention in the column indicating the date. However, immediately after the words “unidentified person”, there appears, spread over two columns and two lines, the entry “29 I 96, 01. oo ”. A visual examination of the copy of the register shows that the figure “1. oo ” has been written over a figure which, as far as legible, had originally read “3. oo ” or “5. oo ”. 44. It can be also observed that the registration numbers on the same page have been written over. From the copy provided by the Government it is difficult to see the original numbers that were altered. Nevertheless, it can clearly be seen that there are equal spaces between each of the entries except the numbers “72” and “73”, between which there is a significantly smaller space. 45. The entry under number 72 for the detention of an unidentified person states that that person was brought to the police station by A. On the right-hand side of the same line there appears a signature which, in so far as it is legible, appears to be that of Colonel I. 46. In the course of the investigation Colonel I, the senior officer on duty, and J, his assistant that night, were questioned in relation to the registration of Mr Zabchekov's presence at the police station. Colonel I stated that he had not instructed A to register the detainee since A was familiar with the procedure. J stated that shortly after 3.50 a.m., when he had been alerted by H about Mr Zabchekov's deteriorating condition, he had checked the register of detainees but had not seen any entry concerning him. Colonel I further denied having made an entry in the register and stated that the entry for an unknown person had not been there when he had left the police station after Mr Zabchekov's death. G. Investigation by the general prosecution and investigation authorities 47. Early in the morning of 29 January 1996 the police officers involved submitted a written account of the night's events to the head of the local police. Towards the end of his handwritten report C stated, with no apparent connection with the surrounding text: “The person I apprehended was swarthy (Gypsy) ” (“ Този когото задържах беше мургав (циганин)” ). 48. The head of the local police opened file ZM-I no. 128 which contained a summary of the events, the reports of seven police officers and the written statements by D and one of the owners of the cars which Mr Zabchekov had allegedly tried to break into. Also early in the morning of 29 January 1996 Mr Neshev, an investigator from the Regional Investigation Service ( Окръжна следствена служба ) in Razgrad opened criminal proceedings under file no. 13/1996 to investigate the death of Mr Zabchekov. 49. According to the applicant, at 8 a.m. on the same day Mr Neshev, accompanied by two uniformed police officers, went to the house of the applicant's family to inform them of Mr Zabchekov's death. They spoke to the boy's stepfather. According to the applicant, the investigator stated that during the night Mr Zabchekov had tried to break into two cars, that the police had chased him, and that, during the chase, Mr Zabchekov had fallen down and had hit his head against the asphalt. 50. Also on 29 January 1996, Mr Neshev questioned the police officers involved and D, the young man who had been with Sergeant Mutafov (C) during the brief chase on Beli Lom Street. The investigator also visited the hospital and saw Mr Zabchekov's body. Pictures of the body were taken. 51. On the same day at about 11.45 a.m. an officer from the local police went to Beli Lom Street in connection with the reported car-theft attempt. He noted that two cars bore signs of attempted theft and questioned their owners. At about 5 p.m., this time apparently acting in connection with the investigation into the death of Mr Zabchekov, he took a sample from a large red patch in the snow. Laboratory analysis revealed that it was animal blood. 52. Also on 29 January 1996 Mr Neshev ordered an autopsy. He put the following questions to the medical experts: “What are the causes of Zabchekov's death? Are there any traumatic injuries on Zabchekov's body? Do they have any causal relation to the death? How were the injuries inflicted? How long was the period between the infliction of the lethal injury and the death and is it possible, as witnesses claimed, that Zabchekov was conscious until 4.30 a.m.? Is the lethal injury related to injuries in places where the skin was broken? Are there any other visible injuries and did they require, in view of their visible characteristics, immediate medical treatment?” 53. The autopsy was carried out on 29 January 1996 (starting at 11.30 a.m. ) by three doctors at the Regional Hospital in Razgrad. These were Dr Minchev, head of the forensic department, Dr Militerov, head of the pathology department, and Dr Marinov, a doctor in the forensic department. 54. In their report, dated 29 January 1996 (“the first report”), the experts described their findings in detail. Photographs were taken. 55. The external inspection of the body revealed, inter alia : “At the outer end of the left eyebrow, over the orbital rim, a superficial wound of longish shape, measuring 1 cm by 0.4 cm, with slightly uneven and grazed edges, and covered by a thin brownish scab. The soft tissue around the wound is slightly swollen, the skin being of bluish-purple colour. The eyeball of the left eye is slightly protruded (outwardly) ... A slight surface scar 3.5 cm long, with mild bruising ... on ... the left wrist ... Two surface bruises measuring 7.5 cm by 0.5 cm and 3.5 cm by 0.6 cm, of brownish colour, covered by a reddish scab on the right wrist ...” 56. In the concluding part of the report the experts summarised the injuries on Mr Zabchekov's body as follows: “[1.] Skull and cerebral trauma: Superficial lacerated contusion (a deep bruise) located on the outer side of the left eyebrow along its orbital rim; haematomas on the skin and in the soft tissue around this wound and on the left eyelid, fracture of the back wall of the left 'eye bone' reaching its lower external side, with a bow-like fissure under the external injury described above; epidural haematoma on the left side (haemorrhage between the brain and the skull bones – 110 ml; epidural oedema ... [identified as the cause of death]). [2.] Haematoma on the skin, spotted in a characteristic manner, and haematoma in the soft tissue on the right side of the chest, along the anterior axillary line. [3.] Surface skin grazes on the right side of the forehead and on the upper surface of the left wrist with a limited haematoma in the soft tissue under the skin. [4.] Haematoma of an oval shape and diameter of 0.5 cm on the mucous membrane of the left lower lip. [5.] Two strip-like surface bruises on the skin of typical shape, and haematoma in the soft inner tissue, in the area of the wrist joint of the right hand.” 57. The experts further concluded: “[The death was caused by] accumulated epidural cerebral haematoma on the left-hand side of the forehead, containing 110 ml of blood, followed by a cerebral oedema, with wedging of the cerebellar tonsils into the foramen magnum; this oedema led to the suppression and detachment of vital brain centres (those of breathing and heart activity, which in turn caused a pulmonary oedema), and was the direct cause of death.” 58. Addressing the question of the manner in which the injuries had been inflicted, the experts stated: “1. The injury in the area of the left orbital rim and the left eyeball and the epidural haematoma were caused by a blow by, or against, a blunt object, or an object with a blunt edge, [which had] a delineated [limited] and uneven surface. The blow was sudden and sufficiently strong. It caused the fracture of the back wall of the left 'eye bone' reaching its lower external side (furthermore, the skull bones are 0.2 cm thick); 2. [The injury to the right side of the chest was caused by] a blow by, or against, a hard blunt object, or an object with a blunt edge, having a larger impact surface. The marks in this area are spotted in a manner characteristic of an imprint of the victim's clothes. 3. [The injuries to the right side of the forehead and to the wrists were the result of] blows, or pressing, by or against sharp-edged objects. [The injury to the left part of the lower lip was caused by] a blow by or against a hard blunt object having a delineated [limited] surface.” 59. The experts also stated that in cases of epidural haematoma of the kind Mr Zabchekov had suffered there was characteristically a lucid interval of four to six hours during which no visible signs would be displayed, except that “the victim gradually becomes feeble, apathetic and sleepy, after which he falls into a coma and dies – as happened in the present case (during the period between 1 a.m. and 5 a.m. on 29 January 1996 ).” The report concluded that Mr Zabchekov's death had been inevitable in the absence of urgent surgical intervention. 60. The laboratory analysis found an alcohol level of 1.42‰ in Mr Zabchekov's blood and 2.40‰ in his urine, corresponding to a medium level of alcohol intoxication. 61. According to the applicant, in the morning of 30 January 1996 she went to the office of the Regional Investigation Service in Razgrad and requested information about the circumstances surrounding her son's death. Mr Neshev, the investigator, informed the applicant that her son had died of a skull fracture. According to the applicant, he explained that her son had been trying to steal car parts and that, when the police had sought to apprehend him, he had run away, had fallen down and had hit his head. According to the applicant, during this meeting Mr Neshev asserted that her son had been taken to hospital, omitting the fact that he had been in police custody. When asked how Mr Zabchekov's skull could have been fractured as a result of his fall, Mr Neshev had allegedly explained that the autopsy had found an “abnormally thin skull”. 62. In the afternoon of 30 January 1996, upon receiving Mr Zabchekov's body from the hospital, the applicant and other family members noticed bruises on his body. The applicant went to the office of a local newspaper, spoke with two journalists and took them to her home, where they took pictures of Mr Zabchekov's body and clothes. Late in the afternoon of 30 January 1996 Mr Zabchekov was buried. 63. On 31 January and 1 February 1996 the investigator questioned Ms I.M. and Ms I.A. 64. On 31 January 1996, by order of the regional prosecutor, Ms Hadzhidimitrova, the investigation was transferred to the Regional Military Prosecutor's Office ( Окръжна военна прокуратура ). That decision was based on the finding that Mr Zabchekov had died after having been in police detention. The regional prosecutor stated, inter alia : “... for several hours immediately preceding [his] death, the minor Zabchekov, apprehended at 1 a.m. on 29 January 1996 while attempting to steal car parts, was taken by [police] officers ... and placed within the premises of the unit on duty in order to restrict his freedom of movement. Therefore, although he was not detained pursuant to section 35(1) taken in conjunction with section 33(1)(1) of the National Police Act [ Закон за националната полиция ], as a matter of fact Zabchekov was forcibly held in the police station for about three hours and in the course of his stay [there] ... his condition suddenly deteriorated, and he lost consciousness.” H. Investigation by the military prosecution and investigation authorities 65. On 31 January 1996, having received the file on the case, the Regional Military Prosecutor's Office opened an investigation under a new file number (3-VIII/96, prosecutor's file 254/96). The case was assigned to a military investigator ( военен следовател ). During the following weeks the military investigator conducted new examinations of the police officers involved, questioned five persons who had spent the afternoon and evening of 28 January 1996 with Mr Zabchekov, and also heard Dr Mihailov and Dr Ivanova. 66. Two of the police officers, Sergeant Penchev (A) and Sergeant Georgiev (F), mentioned Mr Zabchekov's ethnic origin in their oral evidence to the military investigator. A stated that when he had arrived at Beli Lom Street he had seen two persons emerging from the entrance of the building, one of whom had been “a Gypsy with a criminal record – Anguel Zabchekov”. In his statement F. referred to the applicant's son as “the Gypsy” (three times), “the arrested” (seven times) and “Zabchekov” (twice). 67. On 12 March 1996 the investigator conducted examinations of the witnesses Ms I.A., Ms I. M., C and D. His questions related solely to the number of times Mr Zabchekov had fallen to the ground during the chase on Beli Lom Street and the places where this had happened. On 18 March 1996 the investigator appointed an expert to analyse the clothes which Mr Zabchekov had been wearing on 28 and 29 January 1996. In his report of 20 March 1996 the expert stated that no traces of shoe soles could be found but explained that microscopic remains from particles from a shoe sole would not normally be left on soft fabric. 68. On 20 March 1996 the investigator conducted a reconstruction of the events during Mr Zabchekov's arrest in order to clarify the witnesses' evidence. Those taking part were Sergeant Mutafov (C), the young man who had been with him on 28 and 29 January (D), and the two persons who had observed the scene from their balconies, Ms I.A. and Ms I.M. The police officers who had arrived at Beli Lom Street after Mr Zabchekov was arrested by C did not participate in the reconstruction, which was almost exclusively concerned with the events before the arrival of the two police cars. The reconstruction was videotaped. 69. On 11 April 1996 the applicant submitted to the Varna Military Prosecutor's Office a request for the exhumation of her son's body and for the assignment of a new medical expert, stating that her son had been buried in haste and that exhumation of his body was essential. The applicant suspected that her son's ribs might have been broken. She also submitted to the investigator, Mr Atanasov, two X-ray photographs of her son's head taken several months before his death, to be used for the purpose of establishing whether his skull had been “soft” or “thin”. 70. On 17 or 18 April 1996 five medical experts were appointed to re-examine the conclusions as regards the causes of Mr Zabchekov's death. One of them, Dr Minchev, had participated in the initial group of experts. The other four were Professor Pavlov, head of the forensic department at the Medical University in Varna, Dr Kiuchukov, from the university's neurosurgery department, and Dr Dokov and Dr Radoinova, senior assistants in the forensic department of the same university. The experts were asked the following questions: “1. What injuries did Zabchekov sustain? What was the cause of death? 2. In what manner were the injuries sustained and by how many blows could they have been caused? Could the injuries have been caused by consecutive falls (in accordance with the witnesses' statements and the findings of the investigation reconstruction as recorded on video), or were they the result of direct blows? 3. When were these injuries inflicted? 4. What was Anguel Zabchekov's blood alcohol level at the time of his arrest, at about 12.15 a.m. ?” 71. On 26 April 1996 the investigator held a confrontation between all the police officers involved. On the same day three additional witnesses were questioned. On 23 May 1996 the applicant repeated her request for an exhumation. On 29 May 1996 another witness was questioned. On 11 June 1996 Mr Dimitrov, a prosecutor from the Regional Military Prosecutor's Office, sent the applicant a copy of his information note on the proceedings. The note stated, inter alia, that exhumation could be envisaged if this was considered necessary by the five medical experts, who had not yet submitted their opinion. 72. On 28 June 1996 the five experts delivered their report (“the second report”), which was based on an examination of the material in the investigation file. They had also seen the videotape of the reconstruction of Mr Zabchekov's arrest, which had been recorded on 20 March 1996. 73. The experts confirmed that Mr Zabchekov's death had been caused by an epidural oedema resulting from a skull fracture. They also stated, inter alia, that the fatal injury could have been inflicted by a kick, a punch or a blow by a blunt object, or also by a fall and a collision against a “flat broad surface” ( широка удряща повърхност ). They noted that the autopsy had not recorded any morphological data to allow the identification of the object which had caused the injuries. The second report indicated that the blow which had caused the skull fracture had not been very strong. That conclusion was based on the “particular features of the skull structure (as witnessed by the X-ray photographs enclosed and the thickness as described [in the autopsy report])”. 74. Contrary to the first medical report, which had stated that the interval between the skull injury and Mr Zabchekov's death had been approximately four to six hours, the report of the five experts concluded: “The haematoma ... which caused the death of Zabchekov, had been present for at least ten hours before the time of death. The basis for this conclusion is the appearance of the haematoma (blood clot of dark red colour), which is clearly visible on the photographs attached to the file. Clots of that kind, without the presence of liquid blood, are formed during a period of more than ten hours from the moment when they were caused. During this period the patients' condition is usually characterised by the so-called 'lucid interval' – the time during which they do not display visible warning signs. Their condition gradually deteriorates ... they develop a headache, speech disturbances and problems of coordination of movement, [they] become unstable and sleepy, they stagger, etc., until they fall into a coma.” 75. The photographs relied on by the experts were taken at the time of the autopsy, which began at 11.30 a.m. on 29 January 1996. 76. The experts also found, in view of the amount of alcohol found in Mr Zabchekov's blood, that the symptoms resulting from the head injury had been masked by the effects of alcohol. 77. The report of the five experts also dealt with the other injuries to Mr Zabchekov's body: “The haematoma on the right side of the chest is the result of a blow by or against a flat object with a broad hitting surface, which could have taken the form of a kick, a fall and a collision against a larger object and other objects. The general appearance of the bruise corresponds to the imprint of the clothes of the deceased, which indicates that the blow was inflicted through the clothes ... The bruises and injuries to the right side of the forehead, the two wrist joints and the lower lip are the result of the use of hard, blunt and/or sharp-edged objects with a limited hitting surface. The characteristics of the injuries to the two wrist joints make it possible to conclude that they were caused when the handcuffs were put on, in accordance with the available information ...” 78. On 25 July 1996 the investigator drew up a report proposing to terminate the proceedings. 79. On 31 July 1996 the Regional Military Prosecutor's Office closed the investigation as there was no connection between the acts of the police and the death of Mr Zabchekov. That conclusion was based on the finding of the second medical report that at least ten hours had passed between the injury and death. 80. On 6 August 1996 the applicant lodged an appeal with the National Military Prosecutor's Office ( Прокуратура на въоръжените сили ). She contended that the investigation had been incomplete and pointed to the repeated refusal to carry out an exhumation, to the alleged discrepancies between the evidence of different witnesses and to the lack of explanation for certain facts, including all the injuries to Mr Zabchekov's body. 81. On 18 December 1996 the National Military Prosecutor's Office confirmed the closure of the investigation and refused the applicant's requests. Its decision stated, inter alia : “[A]part from the physical force used during the arrest of Zabchekov for attempting to steal from cars, there is no evidence that any violence was used against him by police officers, whether ... inside or outside the ... police station. Furthermore, the firm conclusion of the report of the five experts, who are highly qualified in their field, is that the lethal injury was caused more than ten hours prior to death.” 82. It was also decided to refer the case back to the Regional Prosecutor's Office in Razgrad, which was competent to deal with the question whether a criminal act had been committed by a person other than a police officer. I. Additional investigation by the general prosecution and investigation authorities 83. On 20 January 1997 the regional prosecutor, Ms Hadzhidimitrova, referred the case to the investigator, Mr Neshev. She noted that the investigation in respect of the police had been closed on the basis of the finding that the fatal injury had been inflicted more than ten hours prior to the death of Mr Zabchekov. Therefore, further evidence needed to be collected as regard the whereabouts and the condition of Mr Zabchekov before 7 p.m. on 28 January 1996. 84. The additional investigation entailed the examination of the applicant and six other witnesses on 23 January 1997 by Mr Neshev. 85. On 23 and 24 January 1997 the applicant made further requests for the exhumation of the body and for a fresh forensic examination, claiming that there were inconsistencies in the evidence. That was rejected by the Razgrad Regional Prosecutor's Office on 31 January 1997 as being unnecessary. 86. The applicant complained to the Chief Public Prosecutor's Office ( Главен прокурор ). She stated, inter alia, that the prosecutors had consistently failed to explain why the police had not taken proper care of Mr Zabchekov following his arrest. 87. On 17 February 1997 Mr Neshev summoned the applicant (represented by counsel) to allow her to consult the file on the investigation. The applicant made a number of requests and objections concerning shortcomings in the investigation. In particular, she stated that there had been fundamental contradictions between the first and the second medical reports, and that it was clearly impossible for a person suffering from such a grave injury as that found by the autopsy to steal car parts and resist arrest. The applicant again requested the exhumation of the body and the appointment of experts to answer the questions raised in her previous requests. 88. On 18 February 1997 Mr Neshev drew up a report stating that the additional investigation ordered on 20 January 1997 had not disclosed evidence that Mr Zabchekov had been beaten prior to his arrest. It was therefore proposed to suspend the investigation. 89. By an order of 4 March 1997 the regional prosecutor, Ms Hadzhidimitrova, suspended the criminal proceedings as all available evidence had been collected and it was not possible to determine the precise circumstances under which the fatal head injury had been inflicted. 90. The decision noted the findings of the military prosecutors, in particular those concerning the skull fracture, and confirmed them. In respect of the other bodily injuries, the prosecutor stated that they had not placed Mr Zabchekov's life in danger. The decision also mentioned that when he had been taken to the police station Mr Zabchekov had been in good health. 91. On 10 March 1997 the applicant appealed to the Chief Public Prosecutor against the decision to suspend the proceedings. On 20 March 1997 the Chief Public Prosecutor's Office confirmed the suspension of the proceedings. J. Other evidence submitted by the parties 92. The applicant has submitted four colour photographs of the dead body of Mr Zabchekov and a photograph of the jacket which he was wearing before his death. The photographs were taken by journalists on 30 January 1996 at the applicant's home, after the autopsy and the return of the body for burial. 93. Two of the photographs are of Mr Zabchekov's face. The hair covers half of the forehead. Above and over the left eyebrow can be seen a bluish-purple bruise. The left eyelid is of a bluish colour. A bruise can also be seen on the lips, on the left side of the mouth. 94. On the other two photographs a purple bruise colour can be seen on Mr Zabchekov's chest, on its right side, partly under the right armpit. Wounds are visible on Mr Zabchekov's right wrist. 95. On an unspecified date the applicant, acting through the European Roma Rights Centre, a non-governmental organisation based in Budapest, solicited the opinion of Professor Jorgen Thomsen, State Pathologist, Institute of Forensic Medicine, University of Southern Denmark, Odense, a member of the United Nations Standing Team of Forensic Experts. Professor Thomsen gave a written opinion dated 4 February 1999. Professor Thomsen had at his disposal, inter alia, the description of what had allegedly happened in the case and extracts from the autopsy report and the reports of the forensic experts. Professor Thomsen stated, inter alia : “An epidural haematoma is usually caused by a fall against a hard surface or a strong blow with a blunt object. It is well known that a fall against a hard surface will often leave so-called contre -coup lesions. It is regrettable that the presence or absence of such lesions have not been mentioned. It has been mentioned that the deceased had a thin skull. In my opinion that is not an apologising factor in cases of interpersonal violence, as it is usually not known if a skull is thick or thin and it is inherent in the possible effects of violence that a person may have a thin skull. Together with the epidural haematoma there is usually a fracture (fissure) in the temporal bone and a rupture of the middle meningeal artery. The haemorrhage is thus arterial. It is in the beginning limited by the attachment of the dura to the inside of the bone. There is thus often a lucid interval that may last several hours, but often the interval is not longer than a couple of hours. If the traumatic lesion involves the brain with a concussion or contusions there is usually not a lucid interval. I agree with the two forensic reports that the cause of death was the epidural haematoma and that it was caused by one of the types of traumas mentioned. It may well have happened before the victim was arrested, but it can in no way be excluded that he sustained the fatal lesion during his stay in the police centre. I do not agree with the statement that there was a lapse of ten hours from the trauma until death. It was based on the appearance of the blood clot. It is known that the blood after death can take various forms and even after death there is enzymatic biochemical activity that may change the blood in an unpredictable way and in various ways in different locations. With reference to the other lesions these are not likely to have been sustained from the same trauma as the epidural haematoma. They are the result of blunt violence such as beating, kicking and/or falls, and may have been sustained during the stay in police detention. The marks on the wrists are characteristically the results of handcuffing. Handcuffs will usually not leave marks, but may if they are too tight, if the person is struggling, or if he is dragged by the handcuffs. In summary, it cannot be determined if the epidural haematoma was caused by a fall or other types of blunt violence. It may well have been sustained just before or during the stay in police detention. An epidural haematoma is curable if an operation with evacuation of the haematoma is performed soon enough. If admitted to hospital sooner, Mr Zabchekov might have been saved.” 96. The Government submitted that Mr Zabchekov had a record at the Juvenile Offenders Pedagogic Centre ( Детска педагогическа стая ) and at the police in Razgrad on account of numerous alleged thefts. 97. A note dated 3 July 1995, issued by the Juvenile Centre and addressed to the police in Razgrad, stated that Mr Zabchekov, who at that time was 16 years old, had a speech defect and was mentally retarded. Another note, dated 18 November 1995, reiterated those findings. The Government explained that on 7 November 1995 the applicant had been heard by an investigator in Razgrad in connection with a criminal investigation into thefts allegedly committed by her son, Mr Zabchekov. She had stated, inter alia, that her son had always had a stammer. He had been ill since the age of 3. In particular, he had had moments when he could not breathe and his skin became bluish. His eyes had often been swollen and he had fainted during moments of sudden fear. Mr Zabchekov had seen doctors who had stated that he had problems with his spine. The applicant had mentioned the name of a Dr Miceva who had all the documents concerning the medical examinations carried out in respect of her son. 98. On 14 December 1995 Mr Zabchekov had been questioned in connection with criminal proceedings concerning thefts. Asked about his health, he had stated that he had been prone to fainting and pain in his head and eyes. On 4 January 1996 an investigator from the District Investigation Service in Razgrad had opened criminal proceedings against Mr Zabchekov and other persons on charges of theft. On 15 January 1996 Mr Zabchekov had been questioned and had stated, inter alia, that he had been treated by Dr Miceva, a psychiatrist, and that he had been taking medication. Mr Zabchekov's lawyer had requested a psychiatric examination, which had been scheduled for 30 January 1996. | This case concerned the death of the applicant’s son, aged 17, while in police custody, following his arrest for attempted theft. The applicant alleged that her son died after being ill-treated by police officers, that the police failed to provide adequate medical treatment for his injuries, that the authorities failed to undertake an effective investigation, that her son’s detention was unlawful, that she did not have an effective remedy and that there had been discrimination on the basis of her son’s Roma (Gypsy) origin. |
636 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1956 and 1946 respectively. The first applicant lives in Łόdź. 6. The first applicant owns a publishing house named “ Westa Druk ” which publishes a weekly magazine, Angora, and its supplement for children, Angorka. The second applicant was the editor in chief of the magazine. 7. On 16 May 1999 Angorka published an article referring to an advertising campaign by a company, Star Foods, for its potato crisps. On the first page of the magazine there was a cartoon showing a boy holding a packet, with the name “Star Foods” on it, saying to Reksio – a little dog, a popular cartoon character for children – “Don ’ t worry! I would be a murderer too if I ate this muck!” ( “ Nie martw się – też bym był mordercą, gdybym jadł to świństwo! ” ). Above the cartoon, there was a large heading reading “Polish children shocked by crisps advertisement, ‘ Reksio is a murderer ’ ( Reksio to morderca ) ”. 8. The article, printed on the second page of the magazine, read as follows: “Recently in Star Foods crisps [packets] stickers appeared which terrified parents and their children: ‘ Reksio is a murderer ’. In the [packets of] crisps from the company Star Foods, which are stocked on the shelves of almost all shops, stickers appeared recently which terrified parents and children. In the packets there are little pieces of paper bearing the slogan: “ Reksio is a murderer”. Before the stickers appeared in the packets of crisps the company ordered a market study. One of the advertising agencies proposed slogans and sayings used every day by teenagers. Children, however, are terrified by those slogans. ... Prepared following ‘ the Super Express ’ ” 9. The above quoted article on the second page was accompanied by a small cartoon featuring two cats holding a packet with the word “crisps” on it and the dog Reksio in the background. One cat holds a piece of paper with the slogan “ Reksio murderer ” apparently taken out from the packet and says to the second cat - “surely, he is sometimes unpleasant, but a murderer?!” ( “ Owszem, nieraz bywa przykry, ale żeby od razu mordercą ?!”). 10. On 2 November 1999 Star Foods (“the plaintiff”) lodged against both applicants a civil claim for protection of personal rights. The company sought an order requiring the defendants to publish an apology in Angora and Angorka for publishing a cartoon discrediting, without any justification, Star Foods products. They further sought reimbursement of their legal costs and payment by the applicants of 10,000 Polish zlotys (PLN) to a charity. 11. On 28 May 2001 the Łόdź Regional Court ( Sąd Okręgowy ) found for the plaintiff. The court ordered the applicants to publish apologies as sought in the statement of claim and to pay PLN 10,000 to a charity. The applicants were also ordered to pay the plaintiffs PLN 11,500 to reimburse the costs of the proceedings. The court considered that the cartoon in question had breached the personal rights of the plaintiff and discredited the products of the company. The words used by the applicants had an unambiguous meaning relating to disgust and repulsion and were strongly pejorative. Accordingly, the court concluded that the applicants had overstepped the threshold of permissible criticism, in particular in a magazine aimed at children. The court dismissed the applicants ’ arguments that the cartoon had aimed to criticise the advertising campaign run by Star Foods and not their product. It considered that such an attack on the plaintiff ’ s personal rights could not have been justified even by the argument that their campaign was ill-considered. 12. The applicants appealed against the judgment. 13. On 21 March 2002 the Łόdź Court of Appeal dismissed the appeal and ordered the applicants to pay the plaintiffs PLN 2 ,500 to reimburse the costs of the appellate proceedings. It agreed with the lower court ’ s assessment that the critical statement had not concerned the style of advertisement adopted by Star Foods. Calling the product of the company “muck” was surely not a critical assessment of their advertising campaign but had been aimed at the product, the brand, and the good name of the company. The statement in question “I would be a murderer too if I ate this muck” contained an obviously negative assessment of the taste and quality of the product. Thus, the applicants ’ action aimed to discredit, without justified grounds, the product of Star Foods and as such could not enjoy the benefit of legal protection. The appellate court also observed that the applicants had repeatedly relied on the interests of children to justify their actions, while they themselves had repeated, in the supplement for children, the slogan that in their opinion had had a negative impact on children ’ s emotions and had terrified them. 14. On 12 December 2002 the Supreme Court refused to examine the cassation appeal lodged by the applicants. | The first applicant in this case owned a publishing house which published a weekly magazine and a supplement for children. The second applicant was the magazine’s editor-in-chief. The case concerned the publication in the supplement of an article containing satirical cartoons which referred to an advertising campaign for potato crisps marketed by a food manufacturer and aimed at children. The applicants complained that the sanction imposed on them for having published the cartoon was not justified. |
67 | Filiation | I. Circumstances of the case 12. The applicants are British citizens, resident in Manchester, England. The first applicant, "X", was born in 1955 and works as a college lecturer. X is a female-to-male transsexual and will be referred to throughout this judgment using the male personal pronouns "he", "him" and "his". Since 1979 he has lived in a permanent and stable union with the second applicant, "Y", a woman born in 1959. The third applicant, "Z", was born in 1992 to the second applicant as a result of artificial insemination by donor ("AID"). Y has subsequently given birth to a second child by the same method. 13. X was born with a female body. However, from the age of four he felt himself to be a sexual misfit and was drawn to "masculine" roles of behaviour. This discrepancy caused him to suffer suicidal depression during adolescence. In 1975, he started to take hormone treatment and to live and work as a man. In 1979, he began living with Y and later that year he underwent gender reassignment surgery, having been accepted for treatment after counselling and psychological testing. 14. In 1990, X and Y applied through their general practitioner ("GP") for AID. They were interviewed by a specialist in January 1991 with a view to obtaining treatment and their application was referred to a hospital ethics committee, supported by two references and a letter from their GP. It was, however, refused. 15. They appealed, making representations which included reference to a research study in which it was reported that in a study of thirty-seven children raised by transsexual or homosexual parents or carers, there was no evidence of abnormal sexual orientation or any other adverse effect (R. Green, "Sexual identity of 37 children raised by homosexual or transsexual parents", American Journal of Psychiatry, 1978, vol. 135, pp. 692-97). In November 1991, the hospital ethics committee agreed to provide treatment as requested by the applicants. They asked X to acknowledge himself to be the father of the child within the meaning of the Human Fertility and Embryology Act 1990 (see paragraph 21 below). 16. On 30 January 1992, Y was impregnated through AID treatment with sperm from an anonymous donor. X was present throughout the process. Z was born on 13 October 1992. 17. In February 1992, X had enquired of the Registrar General (see paragraph 22 below) whether there was an objection to his being registered as the father of Y ’ s child. In a reply dated 4 June 1992 to X ’ s Member of Parliament, the Minister of Health replied that, having taken legal advice, the Registrar General was of the view that only a biological man could be regarded as a father for the purposes of registration. It was pointed out that the child could lawfully bear X ’ s surname and, subject to the relevant conditions, X would be entitled to an additional personal tax allowance if he could show that he provided financial support to the child. 18. Nonetheless, following Z ’ s birth, X and Y attempted to register the child in their joint names as mother and father. However, X was not permitted to be registered as the child ’ s father and that part of the register was left blank. Z was given X ’ s surname in the register (see paragraph 24 below). 19. In November 1995, X ’ s existing job contract came to an end and he applied for approximately thirty posts. The only job offer which he received was from a university in Botswana. The conditions of service included accommodation and free education for the dependants of the employee. However, X decided not to accept the job when he was informed by a Botswanan official that only spouses and biological or adopted children would qualify as "dependants". He subsequently obtained another job in Manchester where he continues to work. | The first applicant, X, a female-to-male transsexual, was living in a permanent and stable union with the second applicant, Y, a woman. The third applicant, Z, was born to the second applicant as a result of artificial insemination by donor. The applicants complained that X’s role as Z’s father was not recognised and that their situation amounted to discrimination. |
915 | Tribunal established by law | 13. The Court considers it essential to the understanding of the nature and context of the applicant’s complaint, as well as of the circumstances in which it arose, which are outlined in greater detail in paragraphs 29 et seq. below, to provide the broader domestic background to the present proceedings. BACKGROUND AND CONTEXT OF THE CASE 14. A candidate of the Law and Justice ( Prawo i Sprawiedliwość ) Party won the presidential elections in May 2015 and took office in August 2015. In the general election of 25 October 2015, a coalition led by the same party obtained a majority in the Sejm (the lower house of Parliament) and formed a government. It fell short of the majority required to change the Constitution. 15. One of the first actions of the new majority concerned the Constitutional Court. On 8 October 2015 the previous, seventh-term Sejm had elected five new judges of the Constitutional Court. Three of these were to replace judges whose terms of office were to come to an end on 6 November 2015, i.e. within the term of the previous Sejm, and two were to replace those whose terms of office were due to expire on 2 and 8 December 2015. The President of the Republic declined to swear them in. The new, eighth ‑ term Sejm held its first session on 12 November 2015, which marked the beginning of its term. On 25 November 2015 the new Sejm, in an unprecedented move, adopted resolutions revoking the election of the five judges by the previous Sejm. Then, on 2 December 2015, it elected five judges who were immediately sworn in by the President of the Republic. In its judgment of 3 December 2015 (no. K 34/15), the Constitutional Court held that a judge of that body should be elected by the Sejm whose term covered the date on which his or her seat became vacant. It confirmed that finding in four subsequent rulings [2]. In consequence, the seventh-term Sejm had had the power to elect three judges, while the eighth-term Sejm could validly elect two. The election of three judges (M.M., L.M. and H.C.) in December 2015 to seats that had been already filled in October sparked an intense legal controversy and marked the beginning of what is widely referred to by analysts as the rule of law crisis in the country. 16. A detailed account of the relevant facts relating to the Constitutional Court can be found in the judgment in Xero Flor w Polsce sp. z o.o. v. Poland (no. 4907/18, §§ 4-63, 7 May 2021). In that judgment, the Court held that there had been a violation of Article 6 § 1 as regards the right to a “tribunal established by law” on account of the participation in the proceedings before the Constitutional Court of the above-mentioned Judge M.M., whose election it found to have been vitiated by grave irregularities. 17. In January 2017 the Government announced plans to reform the ordinary courts, the National Council of the Judiciary ( Krajowa Rada Sądownictwa; “the NCJ”) and the Supreme Court. 18. With regard to the ordinary courts, the Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts increased the powers of the Minister of Justice, who is at the same time the Prosecutor General (see paragraph 38 below), in relation to the internal organisation of the courts and to the appointment and dismissal of the presidents and vice-presidents of the courts. It also extended his powers in the areas of promotion and discipline. The Act of 12 July 2017 provided that within the six-month period following its adoption, the Minister could dismiss and appoint court presidents and vice-presidents at his discretion. Two court vice-presidents removed from their posts under this legislation lodged their applications with the Court, complaining that their premature removal was not amenable to judicial review. In its judgment in Broda and Bojara v. Poland (nos. 26691/18 and 27367/18, 29 June 2021) the Court found that the applicants had been deprived of the right of access to a court, in violation of Article 6 § 1, in relation to the Minister’s decisions removing them from their posts before the expiry of their respective terms of office. 19. In July 2017 Parliament also adopted the Act Amending the Act on the NCJ and the Act on the Supreme Court. However, the President of the Republic vetoed them. Subsequently, the President submitted to the Sejm his own legislative proposals for the institutions concerned. 20. In December 2017 Parliament adopted the Act Amending the Act on the NCJ (“the 2017 Amending Act”). The 2017 Amending Act transferred the power to elect the fifteen judicial members of the NCJ from respective assemblies of judges to the Sejm. It also terminated prematurely the terms of office of those judicial members who, like the applicant, had been elected under the previous regulations (see paragraphs 52 and 54 below). 21. In December 2017 Parliament also adopted the new Act on the Supreme Court. The Act, inter alia, modified the organisation of the Supreme Court by creating two new chambers: (1) the Disciplinary Chamber ( Izba Dyscyplinarna ) and (2) the Chamber of Extraordinary Review and Public Affairs ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych ). The judges of these new chambers were appointed by the President of the Republic on the recommendation of the new NCJ. In the Reczkowicz v. Poland (no. 43447/19, 22 July 2021) judgment, the Court held that the Disciplinary Chamber of the Supreme Court was not a “tribunal established by law” and found a violation of Article 6 § 1 of the Convention in that regard. This judgment became final on 22 November 2021 when the panel of the Grand Chamber took note of the Government’s withdrawal of its request to refer that case to the Grand Chamber. In its judgment in Dolińska ‑ Ficek and Ozimek v. Poland (nos. 49868/19 and 57511/19, 8 November 2021, not yet final on the date of adoption of the present judgment) the Court found a similar breach of Article 6 § 1 of the Convention, having concluded that the Chamber of Extraordinary Review and Public Affairs of the Supreme Court was not a “tribunal established by law” [3]. 22. The new Act on the Supreme Court also lowered the retirement age for Supreme Court judges from 70 to 65 years, with the consequence that about one-third of the judges of that court would have to leave their posts prematurely, including the First President of the Supreme Court. The President of the Republic was granted discretion to decide whether to allow the persons concerned to continue in office beyond that age. The European Commission brought an infringement action against Poland in connection with the adoption of the law. The Court of Justice of the European Union (“the CJEU”) issued an interim order on 17 December 2018 suspending the application of the relevant provisions of the law (C ‑ 619/18 R, EU:C:2018:1021). It then held in its judgment of 24 June 2019 (C ‑ 619/18, Commission v. Poland (Independence of the Supreme Court), EU:C:2019:531) that lowering the retirement age in respect of sitting judges failed to fulfil Poland’s obligations under EU law. Following the interim order of 17 December 2018, Parliament amended the Act on the Supreme Court. It limited the application of the new retirement age of 65 solely to judges of the Supreme Court who had entered into service after 1 January 2019 and allowed the reinstatement to that court of judges who had entered into service before that date and who had been obliged to retire under the contested legislation. 23. Furthermore, the rules on the disciplinary liability of judges were significantly changed by the Act of 8 December 2017 on the Supreme Court amending the Act on the Organisation of Ordinary Courts. The amended legislation considerably increased the role of the Minister of Justice/Prosecutor General in the area of judicial discipline. According to the Venice Commission, there was “an intensification of the disciplinary procedures against ordinary judges” and “inquiries ... were opened ... in respect of more than forty judges who were vocal in criticising the reform” [4]. In October 2019 the European Commission brought infringement proceedings on the grounds that Poland had failed to fulfil its obligations under EU law by adopting the new disciplinary regime for judges. On 8 April 2020 the CJEU in its interim decision ordered Poland to suspend the application of the provisions on the powers of the Disciplinary Chamber with regard to disciplinary cases concerning judges pending the resolution of the case (C ‑ 791/19 R, EU:C:2020:277). Despite the CJEU’s interim decision, the Disciplinary Chamber has continued to operate and has decided, for example, to lift immunity from prosecution in cases against judges. In its judgment of 15 July 2021 (C-791/19, Commission v. Poland (Disciplinary regime for judges), EU:C:2021:596), the CJEU held that the disciplinary regime for judges in Poland was not compatible with EU law (see paragraphs 160-161 below). 24. On 20 December 2017 the European Commission initiated for the first time the procedure under Article 7(1) of the Treaty on European Union (TEU). The Commission submitted a reasoned proposal to the Council of the European Union, inviting it to determine that there was a clear risk of a serious breach of the rule of law by the Republic of Poland. It referred, inter alia, to the threats to the independence of the ordinary judiciary. The Commission observed that over a period of two years more than thirteen consecutive laws had been enacted affecting the entire structure of the justice system in Poland. The common pattern in all these legislative changes was that the executive or legislative branches were systematically enabled to interfere significantly with the composition, powers, administration and functioning of those authorities and bodies (see paragraph 163 below). 25. In December 2019 Parliament passed the Act Amending the Act on the Organisation of Ordinary Courts, the Act on the Supreme Court and Certain Other Acts (“the 2019 Amending Act”). The 2019 Amending Act, which entered into force on 14 February 2020, introduced new disciplinary offences and sanctions for judges, including for questioning the lawfulness of judicial appointments made with the participation of the new NCJ. On 31 March 2021 the European Commission commenced infringement proceedings in respect of that law. It considered that the law undermined the independence of Polish judges and was incompatible with the primacy of EU law. Moreover, the law prevented Polish courts, including by using disciplinary proceedings, from directly applying certain provisions of EU law protecting judicial independence, and from making references for preliminary rulings on such questions to the CJEU. The Commission also decided to ask the CJEU to order interim measures until it had given a judgment in the case. On 14 July 2021 the Vice-President of the CJEU issued an interim order in the case (C ‑ 204/21 R, EU:C:2021:593). Poland was required to suspend, inter alia, the application of several provisions of the Act on the Supreme Court and the Act on the Organisation of Ordinary Courts, as amended by the 2019 Amending Act, relating to the competences of the Disciplinary Chamber of the Supreme Court. On 27 October 2021 the Vice-President of the CJEU ordered Poland to pay to the European Commission a periodic penalty payment of EUR 1,000,000 per day until such time as that Member State complies with the obligations arising from the order of 14 July 2021, or, if it fails to do so, until the date of delivery of the final judgment in the case (C ‑ 204/21 R, EU:C:2021:878). 26. On 29 March 2021 the Prime Minister lodged an application with the Constitutional Court asking it to review, inter alia, the constitutionality of Article 19(1), second subparagraph, in conjunction with Article 4(3) of the TEU interpreted as meaning that, for the purposes of ensuring effective legal protection, the body applying the law was authorised or obliged to apply legal provisions in a manner inconsistent with the Constitution. The Prime Minister further challenged the constitutionality of Article 19(1), second subparagraph, in conjunction with Article 2 TEU, interpreted as empowering a court to review the independence of judges appointed by the President of the Republic and to review a resolution of the NCJ concerning a proposal to the President of the Republic for appointment of a judge. In its judgment of 7 October 2021 (no. K 3/21), the Constitutional Court held that the contested provisions of the TEU were incompatible with the Constitution (see paragraphs 96-97 below). 27. On 27 July 2021 the Prosecutor General (on the connection between this office and that of Minister of Justice see paragraph 38 below) lodged an application with the Constitutional Court challenging the constitutionality of Article 6 § 1 of the Convention in connection with the Court’s judgment in Xero Flor w Polsce sp. z o.o. v. Poland (cited above). He alleged that Article 6 § 1 of the Convention was unconstitutional, in so far as (1) the term "tribunal" used in that provision included the Constitutional Court, (2) it allowed the proceedings before that court to be covered by the requirements ensuing from Article 6 of the Convention, and (3) it encompassed the review by the Court of the legality of the election of Constitutional Court judges in order to determine whether that court was an independent and impartial tribunal established by law. In its judgment of 24 November 2021 (no. K 6/21), the Constitutional Court partly upheld this challenge (see paragraphs 98-99 below). 28. On 9 November 2021 the Prosecutor General lodged an application with the Constitutional Court alleging that Article 6 § 1 of the Convention was incompatible with several constitutional provisions. This application is related to the Court’s judgments in the cases of Broda and Bojara v. Poland and Reczkowicz v. Poland (both cited above). He claimed that Article 6 § 1 of the Convention was unconstitutional, in so far as (1) it authorised the Court to create under domestic law the subjective right of a judge to hold an administrative post in the judiciary, (2) the requirement of a “tribunal established by law” in that provision did not take account of the universally binding provisions of the Polish Constitution and statutes, as well as the final and universally binding judgments of the Polish Constitutional Court, and (3) it allowed domestic or international courts to determine the compatibility of laws concerning the organisation of the judiciary, the jurisdiction of the courts, and the NCJ with the Polish Constitution and the Convention, in order to ascertain whether the requirement of a “tribunal established by law” was fulfilled. The case is pending before the Constitutional Court (no. K 7/21). THE CIRCUMSTANCES OF THE CASE 29. The applicant was born in 1956 and lives in Piła. 30. In 1986 the applicant was appointed as judge of the Trzcianka District Court, and subsequently as judge of the Poznań Regional Court. In April 1999 he was appointed as judge of the Supreme Administrative Court. At the relevant time he was a member of the Gorzów Wielkopolski Regional Administrative Court. 31. On 11 January 2016 the applicant was elected by the General Assembly of Judges of the Supreme Administrative Court with the participation of the Representatives of the General Assemblies of Judges of the Regional Administrative Courts as a member of the National Council of the Judiciary for a four-year term of office, that is until 11 January 2020 (see the relevant constitutional and legislative provisions at paragraphs 66 and 68 below). 32. The NCJ is a constitutional organ tasked with safeguarding the independence of courts and judges (see Article 186 § 1 of the Constitution). One of its principal functions is to evaluate and nominate candidates for appointment to judicial office for every level and type of court. The candidates proposed by the NCJ are submitted to the President of the Republic for appointment. 33. Article 187 § 1 of the Constitution provides that the NCJ is composed as follows: (1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic; (2) fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts; and (3) four members elected by the Sejm from among its deputies and two members elected by the Senate from among its senators (see paragraph 66 below). 34. In January 2017 the government announced plans for a large-scale judicial reform regarding the NCJ, the Supreme Court and the ordinary courts. The Minister of Justice explained that a comprehensive reform was needed in order to, inter alia, increase the efficiency of the administration of justice and make the election of NCJ members more democratic. 35. On 14 March 2017 the government introduced in the Sejm a bill, drafted by the Ministry of Justice, to amend the 2011 Act on the National Council of the Judiciary. The bill proposed that the judicial members of the NCJ would be elected by the Sejm instead of by judicial assemblies and that the term of office of the sitting judicial members would be terminated. Two further bills on the Supreme Court and the Organisation of Ordinary Courts were introduced by the deputies of the majority. 36. The bill amending the Act on the NCJ was critically assessed by the NCJ, the Supreme Administrative Court, the National Bar Association, the Commissioner for Human Rights and the Organization for Security and Cooperation in Europe (OSCE)’s Office for Democratic Institutions and Human Rights (ODIHR) in their respective opinions of 30 and 31 January, 5 and 12 April and 5 May 2017. The opinions stated that the proposed amendments violated the Constitution in that they allowed the legislature to take control of the NCJ in contradiction with the principle of the separation of powers. According to the same opinions, the amendments would also result in the unconstitutional termination of the constitutionally prescribed four-year term of office of the judicial members of the NCJ. 37. In the framework of the legislative process, the Government appointed a number of constitutional law experts with a view to assessing the constitutionality of the proposed measures concerning the NCJ. Those experts stated that the existing practice of electing judicial members of the NCJ from among judges for an individual term of office – instead of a joint term – was not based on the Constitution. The Government did not produce the opinions of the above-mentioned experts. 38. On 11 April 2017 the Prosecutor General, who is at the same time the Minister of Justice, according to the Act on the Public Prosecutor’s Office of 28 January 2016, which merged these two offices, lodged an application with the Constitutional Court, challenging the constitutionality of certain provisions of the Act of 12 May 2011 on the National Council of the Judiciary ( ustawa z 12 maja 2011 r. o Krajowej Radzie Sądownictwa; “the 2011 Act on the NCJ”). According to the Polish Constitution, the Prosecutor General is entitled to apply to the Constitutional Court (Article 191 § 1(1) of the Constitution). The Prosecutor General alleged that as regards the election of judges to the NCJ the impugned provisions treated different groups of judges unequally depending on the level of jurisdiction, resulting in unequal representation of judges on the NCJ. He further challenged the provisions regulating the term of office of the elected judicial members of the NCJ, claiming that treating their terms of office as individual in nature was contrary to the Constitution. 39. The Constitutional Court gave judgment on 20 June 2017 (no. K 5/17) in a bench composed of judges M.W., G.J., L.M., M.M. (the rapporteur) and J.P. 40. In its general observations, the Constitutional Court noted that the NCJ was a constitutional body tasked with protecting the independence of courts and judges. It also noted that the NCJ was not a judicial authority, and thus the constitutional standards relevant for courts and tribunals were not applicable to the NCJ. Nor should the NCJ be regarded as part of judicial self ‑ governance. The hybrid composition of the Council made it an organ which ensured the balance of and cooperation between the different powers of government. 41. The Constitutional Court held that the provisions governing the procedure for electing members of the NCJ from among judges of the ordinary courts and of administrative courts [5] were incompatible with Article 187 § 1 (2) and § 4 in conjunction with Article 32 of the Constitution. The impugned provisions introduced an unjustified differentiation with regard to the election of judges to the NCJ from the respective levels of the ordinary and administrative courts and did not provide equal opportunities to stand for election to the NCJ. The Constitutional Court found that the impugned provisions treated unequally judges of district and regional courts in comparison with judges of courts of appeal, as well as judges of district courts in comparison with judges of the regional courts. The same went for judges of the regional administrative courts in comparison with judges of the Supreme Administrative Court. 42. Secondly, the Constitutional Court held that section 13(3) of the 2011 Act on the NCJ, interpreted in the sense that the term of office of members of the NCJ elected from among judges of ordinary courts was individual in character, was incompatible with Article 187 § 3 of the Constitution. It noted that there had been an established interpretation by the NCJ that the term of office of judges elected as members of the NCJ was to be individually calculated for each of those members. The Constitutional Court disagreed with that interpretation on the ground that it was contrary to the linguistic, systemic and functional interpretation of Article 187 § 3 of the Constitution. It noted that that provision used the phrase “term of office” in the singular and related it to the phrase “elected members of the NCJ” in the plural. Accordingly, this meant that all elected members of the NCJ had one, joint term of office and this applied equally to judges, deputies and senators. Accepting the individual character of the term of office for judicial members of the NCJ would result in an unjustified differentiation in status between judicial members on the one hand, and deputies and senators, on the other, as another category of elected members of the Council. The Constitutional Court found that the proper interpretation of Article 187 § 3 of the Constitution required that the term of office of all elected members of the NCJ be of a joint character. 43. With regard to the election of judicial members of the NCJ, the Constitutional Court held, in so far as relevant: “The Constitutional Court in the current composition does not agree with the [Constitutional Court’s] position adopted in the judgment [of 18 July 2007,] no. K 25/07 that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges. Article 187 § 1 (2) of the Constitution only stipulates that these persons [judicial members of the NCJ] are elected from among judges. The Constitution did not specify who should elect those judges. Thus, it follows from the Constitution who can be elected as a member of the NCJ, but it is not specified how to elect judicial members of the Council. These matters were delegated to statutory regulation. There is no obstacle to the election of judges to the NCJ by judges. However, one cannot agree with the assertion that the right to elect [judicial members of the NCJ] is vested solely with assemblies of judges. While Article 187 § 1 (3) of the Constitution clearly indicates that deputies are elected to the NCJ by the Sejm and senators by the Senate, there are no constitutional guidelines in respect of judicial members of the NCJ. This means that the Constitution does not determine who may elect judges to the NCJ. For this reason, it should be noted that this question may be differently regulated within the limits of legislative discretion.” 44. The Constitutional Court noted with regard to the principle of tenure that an elected judicial member of the NCJ was legally protected from removal; however, that protection was not absolute. It agreed with the position previously expressed by the Constitutional Court (judgment of 18 July 2007, no. K 25/07) that a breach of tenure could only be justified by extraordinary, constitutionally valid reasons. The Constitutional Court found that the Constitution did not lay down the tenure for the NCJ. The fact that the majority of the NCJ’s members were elected for a four-year term of office did not result in the Council being a tenured body. The tenure was linked not with the body as such, but with certain categories of members composing it. However, the Constitutional Court noted that the guarantee of a four-year tenure for elected members of the NCJ was not absolute. The Constitution, having regard to Article 187 § 4 thereof, allowed statutory exceptions to the four-year tenure. 45. In July 2017 the adoption by Parliament of the three bills referred to above (see paragraphs 18-19 above) sparked large public protests. On 31 July 2017 the President of the Republic vetoed the Act amending the Act on the NCJ and the Act on the Supreme Court. The Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts was signed and entered into force. 46. Subsequently, on 26 September 2017 the President of the Republic introduced in the Sejm his own bill amending the Act on the NCJ (see paragraph 19 above). 47. In the explanatory report it was noted that the bill granted the public, as well as judges, the right to nominate candidates to sit on the Council. The bill referred to the finding made in the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) that the issue of how judicial members of the NCJ were to be elected was left to statutory regulation. In accordance with the bill, the final election from among the nominated candidates was to be carried out by the Sejm by a qualified majority of three-fifths of the votes. If election by qualified majority proved impossible, a supplementary election by means of a roll call vote was to be carried out. 48. One of the aims of the bill was to depart from the principle whereby the members of the Council selected from among judges had individual terms of office. The explanatory report noted that the Constitutional Court had found this approach (individual terms) to be contrary to the Polish Constitution in the judgment of 20 June 2017, no. K 5/17. The bill provided that the judicial members of the NCJ were to be elected for a joint term of office. It further proposed that the terms of office of the NCJ’s judicial members elected under the previous provisions be terminated. This was considered by the President to be proportionate to the systemic changes being pursued. The explanatory report noted that the major changes to the method for electing members of the NCJ were an expression of the “democratisation” of the election process and constituted a development of the principle of the rule of law. This “democratisation” was an important public interest and justified shortening the term of office of the NCJ members currently serving. 49. The President’s bill was assessed negatively by the National Bar Association, the Supreme Court, the NCJ, the Commissioner for Human Rights and the National Council of Attorneys at Law in their respective opinions of 17, 23, 31 October and 12 November 2017. 50. The Act of 8 December 2017 Amending the Act on the National Council of the Judiciary ( ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw – “the 2017 Amending Act”) was enacted by the Sejm and the Senate on 8 and 15 December 2017 respectively. It was signed by the President of the Republic on 20 December 2017 and entered into force on 17 January 2018. 51. According to the Government, the 2017 Amending Act took into account the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) and introduced a joint term of office for the judicial members of the NCJ (see paragraph 175 below). 52. The 2017 Amending Act transferred to the Sejm the competence to elect judicial members of the NCJ (section 9a(1)). It provided in section 9a(3) that the joint term of office of new members of the NCJ was to begin on the day following that of their election (see paragraph 71 below). Section 6 of the 2017 Amending Act provided that the terms of office of the judicial members of the NCJ elected on the basis of the previous provisions would continue until the day preceding the beginning of the term of office of the new members of the NCJ (see paragraph 76 below). 53. Eighteen judges, out of about ten thousand, decided to stand for election to the new NCJ. None of the sitting members decided to stand. A candidate for election to the new NCJ had to be supported either by a group of 2,000 citizens or by 25 fellow judges. 54. On 6 March 2018 the Sejm elected, in a single vote, fifteen judges as new members of the NCJ by the three-fifths majority. On the same date, the applicant’s term of office as a member of the NCJ was terminated ex lege pursuant to section 6 of the 2017 Amending Act. The applicant did not receive any official notification regarding the termination. 55. Thirteen of the new judicial members of the NCJ were district court judges (first level of the ordinary courts), one was a regional court judge (second level of the ordinary courts) and one was a regional administrative court judge. There were no representatives of the courts of appeal, the Supreme Court or the military courts. 56. The applicant claimed that the 2017 Amending Act did not provide for any procedure, judicial or otherwise, with a view to contesting the premature termination of his term of office. 57. The applicant remains in office as a judge of the Supreme Administrative Court. 58. There was some controversy related to the fact that the endorsement lists for candidates to the Council were kept confidential by the Speaker of the Sejm, despite allegations that some candidates had not obtained the required number of signatures or that they had been supported by only a handful of judges close to the Government, since the great majority had boycotted these elections (see paragraph 224 below, the submissions of Iustitia, a third-party intervener). At the time of the election of new members of the Council, and for nearly two years after that, the endorsement lists remained confidential. The lists were disclosed on 14 February 2020 after the Supreme Administrative Court had ordered so in its judgment of 28 June 2019 (no. I OSK 4282/18). 59. On 17 September 2018 the General Assembly of the European Network of Councils for the Judiciary (“the ENCJ”) suspended the NCJ’s membership of the Network. The decision was motivated by the General Assembly’s view that the new NCJ was no longer independent from the legislative and executive powers. On 28 October 2021, the General Assembly of the ENCJ expelled the NCJ from the Network. The General Assembly based its decision on the finding that the new NCJ failed to comply with one of the statutory conditions for membership, namely that of being independent from the executive and legislative powers. Furthermore, it considered that the new NCJ was failing to safeguard the independence of the Polish judiciary. 60. On 2 November 2018 the NCJ, in its new composition, lodged an application with the Constitutional Court challenging several provisions of the 2011 Act on the NCJ (as amended in December 2017), inter alia, section 9a governing the new manner of electing the judicial members of the Council and the nature of their term of office. On 14 February 2019 a group of senators lodged an identical application. The Constitutional Court decided to examine the two applications jointly as case no. K 12/18. The Commissioner for Human Rights requested that the Constitutional Court discontinue the proceedings as inadmissible since the new NCJ was seeking to confirm the constitutionality of the law. 61. On 25 March 2019 the Constitutional Court gave judgment in the case. The bench was composed of Judges J.P. (the president), G.J., Z.J., J.Pi. (the rapporteur) and A.Z. Judge J.Pi. had been elected as judge of the Constitutional Court following the death of Judge L.M., one of the judges elected in December 2015 to a seat that had already been filled. The judgment was given after hearings held in camera on 14 and 25 March 2019. 62. The Constitutional Court held that section 9a of the 2011 Act on the NCJ (as amended), granting to the Sejm the competence to elect judicial members of the NCJ and providing that the joint term of office of new members of the NCJ would begin on the day following the date of their election, was compatible with Articles 187 § 1 (2) and § 4 in conjunction with Articles 2, 10 § 1 and 173 as well as with Article 186 § 1 of the Constitution. It essentially relied on the reasoning of the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17). 63. On 26 March 2019 seven judges of the Constitutional Court made public the following statement: “In connection with the speculations that appeared after the hearing of the Constitutional Court on 14 March 2019 concerning the Act on the NCJ we feel obliged to inform public opinion: On 13 March 2019, the seven judges of the Constitutional Court: [L.K., P.P., M.P-S., S.R., P.T., S.W-J. and M.Z.], sent, by email, their position to the President of the Constitutional Court [J.P.]. They requested that action be taken in order for case no. K 12/18 to be considered by the full bench of the Constitutional Court at a [public] hearing. They pointed out that the examination of the case by a panel of judges once again appointed in disregard of the alphabetical order required by law [i.e. the Act on Organisation and Procedure before the Constitutional Court] deprived the Constitutional Court of transparency and credibility. In matters concerning the [Constitutional] Court and the Constitution, every constitutional judge has the right and duty to present his or her position also in non ‑ judicial procedures. The communicated position constituted an exercise of that right.” | This case concerned the removal of the applicant, a judge, from the National Council of the Judiciary (NCJ) before his term had ended and his inability to get judicial review of that decision. His removal had taken place in the context of judicial reforms in Poland. The applicant complained in particular of having been denied access to a court. |
926 | Objective guarantees as to the career of judges | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant is a limited partnership company founded in 1986 and based in Helsinki. 8. The applicant company, which was running a restaurant in Helsinki, rented the restaurant premises from an insurance company, Keskinäinen Henkivakuutusyhtiö Suomi (KHS). In 1994 it was offered the opportunity to rent more premises, which would be renovated to be suitable for restaurant use. When the renovation was finished, the applicant company found that there were excessive toilet facilities and that part of the planned restaurant facilities were missing, especially those planned to be built in the cellar. The applicant company paid 251,000 Finnish marks (approximately 42,200 euros ) for the renovation expenses and the monthly rent was raised considerably. The amended rent contract had been signed before the extension work commenced. 9. In 1997 the applicant company instituted civil proceedings against KHS before a Division of the Helsinki District Court ( käräjäoikeus, tingsrätt ) known as “the Housing Court ” ( asunto-oikeus, bostadsdomstolen ). The applicant company claimed that there had been a breach of the rent contract, as the newly renovated facilities did not correspond to the original plan, on the basis of which the applicant company had signed the amended rent contract. KHS disagreed with the applicant company, arguing that even though there had originally been a plan to build restaurant facilities in the cellar, it had later proved to be impossible to build such an extension and that the applicant company had been aware of this before signing the contract (see paragraph 19 below). 10. On 17 September 1997 the Housing Court found in favour of the insurance company, rejecting the applicant company's action for compensation in accordance with the Act on Commercial Leases. 11. The applicant company appealed to the Helsinki Court of Appeal ( hovioikeus hovrätt ), requesting that the District Court's decision be quashed. On 11 December 1997 the Housing Court Division of the Court of Appeal upheld the District Court's decision without an oral hearing. One of the members of the Court of Appeal, M.P., was a member of the Finnish parliament at the time. He had been an expert member of the Court of Appeal since 1974. From 1987 to 1990 and from 1995 to 1998 he was also a member of parliament. For the latter period the date of election was 19 March 1995. 12. On 9 February 1998 the applicant company applied to the Supreme Court ( korkein oikeus, högsta domstolen ) for leave to appeal, complaining, inter alia, about the lack of independence of Judge M.P., who had both legislative functions as a member of parliament and judicial functions as a member of the Court of Appeal. On 5 May 1998 the Supreme Court refused the applicant company leave to appeal. | The applicant company, which was running a restaurant, brought civil proceedings against the owner of the restaurant premises, after having paid a rental increase to cover renovation work which was not completed according to plan. It complained that the court of appeal which sat in his civil proceedings was not independent or impartial since one of the judges was a Member of the Finnish Parliament. |
684 | Searches of journalists’ home or workplace, accessing of the phone data and/or seizure of journalistic material | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1961 and lives in Berlin. 6. He is a journalist on the German weekly magazine Stern. From 1 August 1999 until 31 July 2004 he was assigned to Brussels to report on the policies of the European Union and the activities of the European institutions. 7. On 27 February and 7 March 2002 Stern published two articles by the applicant based on confidential documents from the European Anti-Fraud Office (OLAF). The first article reported on allegations by a European civil servant concerning irregularities in the European institutions. The second concerned the internal investigations OLAF had carried out into those allegations. 8. A rumour began to circulate within OLAF that the applicant had paid 8, 000 euros (EUR) or German marks (DEM) to a European civil servant in exchange for this information. 9. On 12 March 2002 OLAF, suspecting the applicant of having bribed a civil servant in order to obtain confidential information concerning investigations in progress in the European institutions, opened an internal investigation to identify the person who had disclosed the information to the applicant. 10. The minutes of an OLAF Supervisory Committee meeting held on 9 and 10 April 2002 stated in particular: “ The members of the Supervisory Committee noted that the journalist ’ s articles were not at all aggressive in tone but hinted at the real situation, as was often the case with individuals. They were surprised that OLAF ’ s press release referred to a payment for such information. Consequently, they wished to be informed whether such a payment had been made and whether any serious evidence existed in this regard. ” 11. In a letter of 24 March 2003 written in the course of his inquiry into a complaint (no. 1840/2002/GG) filed by the applicant against OLAF, the European Ombudsman indicated that the suspicions that the applicant had bribed an OLAF official had originated from “information from reliable sources, including members of the European Parliament ”. 12. On 30 September 2003 OLAF issued a press release entitled “ OLAF clarification regarding an apparent leak of information ”. The press release was worded as follows: “ On 27 March 2002, the European Anti-Fraud Office (OLAF) issued a press release announcing that it had opened an internal investigation under Regulation 1073/1999 into an apparent leak of confidential information included in a report prepared within OLAF. It stated that according to information received by the Office, a journalist had received a number of documents relating to the so-called ‘... affair ’, and that it was not excluded that payment might have been made to somebody within OLAF (or possibly another EU institution) for these documents. OLAF ’ s enquiries have not yet been completed but to date, OLAF has not obtained proof that such a payment was made. ” 13. On 30 November 2003 the European Ombudsman issued his decision. He had already submitted a draft recommendation to OLAF on 18 June 2003. The decision, which essentially reproduced the conclusions set out in the draft, stated in particular : “ ... 1.7 ... by publishing this press release, OLAF has not adequately implemented the Ombudsman ’ s draft recommendation. Instead of withdrawing the allegations of bribery, OLAF simply states that ‘ to date ’ it has not found sufficient evidence to support these allegations. The wording of this press release thus implies that OLAF considers it possible that evidence supporting these allegations could still emerge. In these circumstances, the action taken by OLAF is manifestly inadequate to remedy the instance of maladministration that the Ombudsman has identified. A critical remark will therefore be made in this respect. ... 4. Conclusion 4.1 On the basis of the Ombudsman ’ s inquiries into this complaint, it is necessary to make the following critical remark: By proceeding to make allegations of bribery without a factual basis that is both sufficient and available for public scrutiny, OLAF has gone beyond what is proportional to the purpose pursued by its action. This constitutes an instance of maladministration. ” 14. On 11 February 2004 OLAF lodged a complaint with the Belgian judicial authorities, submitting a report on the internal investigation it had carried out. It also referred the matter to the German judicial authorities. 15. Consequently, on 23 February 2004, an investigation was opened in respect of a person or persons unknown for breach of professional confidence and bribery involving a civil servant. 16. On 19 March 2004, at the request of the investigating judge, the applicant’s home and workplace were searched by the Belgian judicial authorities. Almost all of the applicant ’ s working papers and tools were seized and placed under seal (sixteen crates of papers, two boxes of files, two computers, four mobile telephones and a metal cabinet). It appears that the search warrant was not handed to the applicant but was read out to him. No inventory of the items seized was drawn up. On that occasion, the criminal investigation department apparently led the applicant to believe that the search was in response to a complaint lodged by OLAF, which suspected him of having bribed a European civil servant in order to obtain confidential information. According to the applicant, the authorities subsequently lost a whole crate of papers, which was not found until more than seven months later, in November 2004. 17. On 29 March and 15 April 2004 the applicant applied to the Principal Public Prosecutor at the Brussels Court of Appeal for leave to consult the investigation file. His application was refused in a letter dated 17 June 2004. 18. The applicant applied again on 28 June 2004, to no avail. 19. In the meantime, on 24 March 2004, he had applied to the investigating judge to have the measures relating to the seizure discontinued. 20. By an order of 8 April 2004 the investigating judge rejected his application. 21. The applicant appealed, alleging, inter alia, a breach of Article 10 of the Convention. 22. The Indictment Division upheld the order on 22 September 2004, holding as follows: “The question whether or not protection of the confidentiality of sources of information used by journalists constitutes a right inherent in press freedom, and, if so, whether that right has an absolute value or is subject to restrictions, has not yet been established in law. The actual wording of Article 10 of the European Convention on Human Rights does not recognise the protection of journalistic sources, a right which has developed through the case - law of the European Court of Human Rights, albeit without having been enshrined as an absolute value according to legal authorities (see, to this effect, the judgment of the European Court of Human Rights in the case of Ernst and Others v. Belgium, 15 July 2003, no. 33400/96, Human Rights Information Bulletin no. 60, July-October 2003, pp. 4-5). Recent legislative initiatives tend to acknowledge that journalists are entitled to protect their sources of information, although the exercise of this right does not give rise to immunity from prosecution or from civil liability (see in this connection the Bill granting journalists the right not to disclose their sources of information, passed by the Belgian House of Representatives on 6 May 2004, and the opinion of the National Council of Justice on the legislative proposals to grant journalists the right to protect their sources of information, approved by the General Assembly on 4 February 2004). The investigative measure complained of is, admittedly, an interference in the rights guaranteed by Article 10 of the ECHR. It was, however, lawfully ordered by the competent investigating judge in connection with the matter referred to him. It pursues legitimate aims since, in the context of the information in the case file brought to the attention of the court, whereby the applicant is charged as principal or joint principal in a case of bribery intended to secure the disclosure of confidential information, its purpose is to ‘ verify whether the protection of confidentiality applies to a lawful or unlawful source; the latter must be overridden by a superior value, namely the prevention of crime’ (written application by the Principal Public Prosecutor of 18 June 2004, p. 14). As is rightly noted by the investigating judge, it is not acceptable that the right to protect sources can be used to cover up offences, since this would deprive that right of its purpose, notably the provision of accurate and reliable information to the public, and would be likely to jeopardise public safety by creating de facto impunity (see to this effect the judgment of the European Court of Human Rights of 15 July 2003, JLMB, 2003, p. 1524). ... In the instant case, as the investigating judge noted in the order appealed against, in particular on page 3, paragraph 2.3.1, the requirements of the investigation still dictate that the orders for items to be seized and placed under seal should be maintained, being justified by the ongoing duty to investigate, the sole manifest aim of which is to verify the good faith of the applicant in seeking to establish the truth in the context of the preventive measures underlying the referral to the investigating judge. The arguments advanced by the applicant in his submissions to this court, which cannot substitute its own findings for those of the court below, do not give rise to any doubt in this respect. It follows that the appeal is unfounded .” 23. The applicant appealed on points of law. Relying in particular on Articles 6, 8 and 10 of the Convention, he submitted that freedom of expression included the freedom to seek out and collect information, essential aspects of journalistic activity. According to the applicant, that meant that journalists’ sources were to be protected and kept confidential and that the judicial authorities were prohibited from taking measures or decisions intended to force journalists or organs of the press to reveal their sources. The applicant also complained that since he had not had access to the investigation file, he had been unable to inspect the evidence deemed to be serious and relevant which had been used to justify the search. 24. By a judgment of 1 December 2004 the Court of Cassation dismissed the appeal. It held that Article 10 of the Convention authorised restrictions on freedom of expression, that the search and seizure were provided for by the Code of Criminal Procedure and that the Indictment Division had given sufficient and adequate reasons for its decision. The Court of Cassation further held that the lawfulness of a search was not dependent upon the existence of strong evidence of the guilt of the person at whose home or workplace the search was carried out. It was sufficient for the investigating judge to have evidence suggesting that that these premises might be harbouring documents or items useful in establishing the truth concerning the offences mentioned in the search warrant. Consequently, the objection raised by the applicant was outside the scope of the review of the lawfulness of the investigation and did not constitute a ground permitted by law to support an appeal on points of law under Article 4 16 § 2 of the Code of Criminal Procedure, and was therefore inadmissible. 25. In the meantime, on 1 and 4 June 2004, the applicant had lodged two applications with the Court of First Instance of the European Communities. The first sought the annulment of the complaint filed by OLAF and compensation for the harm allegedly caused to the applicant’s career and reputation. The second sought a temporary injunction prohibiting OLAF from inspecting any document seized during the searches at issue. By an order of 15 October 2004 the President of the court dismissed the applications. The President ruled that OLAF’s decision to forward the report on the internal investigation had no binding legal effect and could not therefore be the subject of an action for annulment. He stressed in particular that OLAF’s conclusions set out in a final report could not automatically give rise to the opening of judicial or disciplinary proceedings, given that the competent authorities remained free to decide on the action to be taken in relation to the report. As regards the applicant’s application for interim measures, he ruled that there was no causal link between the alleged harm and OLAF ’ s action and that it had not been established that OLAF had acted in breach of the principles of good administration and proportionality. 26. The applicant appealed. By an order of 19 April 2005 the President of the Court of Justice of the European Communities upheld the order. 27. In the context of those proceedings, the applicant received a copy of OLAF’s complaint but not of the other documents in the criminal file. At that time, he had not been charged in Belgium. On 17 November 2006 the Hamburg public prosecutor informed the applicant ’ s counsel that the investigation in Germany had been closed without any charges being brought. 28. On 12 May 2005 the European Ombudsman drafted a special report for the European Parliament following the draft recommendation he had addressed to OLAF in connection with a fresh complaint filed by the applicant (2485/2004/GG). In the complaint the applicant alleged that during the inquiry into complaint no. 1840/2002/GG, OLAF had provided incorrect information that was prone to mislead the Ombudsman; he requested the latter to conduct a new inquiry. 29. In his above-mentioned report, the Ombudsman stated that the alleged remarks by the members of the European Parliament ( see paragraph 11 above) had probably never been made. They were rumours circulated by another journalist, Mr G., which the Director General of OLAF had not bothered to check with the members of the European Parliament concerned. 30. In his recommendation, the Ombudsman concluded that OLAF should acknowledge that it had made incorrect and misleading statements in its submissions to the Ombudsman in the context of the latter’s inquiry into complaint no. 1840/2002/GG. | The applicant, a journalist of the German weekly magazine Stern, complained about searches and seizures at his home and his place of work following the publication of articles concerning irregularities in the European institutions and based on information from confidential documents from the European Anti-Fraud Office. |
919 | Objective and subjective criteria | I. PARTICULAR CIRCUMSTANCES OF THE CASE A. Introduction 7. Mr Rolf Langborger is a Swedish national born in 1922. He is a consultant engineer and resides at Solna, a town in the immediate vicinity of Stockholm. On 1 October 1982 he rented an apartment. The lease contained a "negotiation clause" ( förhandlingsklausul, see paragraph 16 below) which was worded as follows: "During the running of the lease the parties undertake to accept, without prior termination of the lease, the rent and other conditions agreed upon on the basis of the negotiation agreement ( förhandlingsordning ) in force between, on the one hand, a landlords ’ union affiliated to the Swedish Federation of Property Owners ( Sveriges Fastighetsägareförbund ) and a landlord, who with his property is affiliated to such a union, and, on the other hand, a tenants ’ union affiliated to the National Tenants ’ Union ( Hyresgästernas riksförbund )." An agreement between the two unions laid down the negotiating procedure. For conducting the negotiations the tenants ’ union in question received a commission of 0.3% of the rent (see paragraph 16 below). 8. The applicant was dissatisfied with the rent and with the fact that he was represented by the Tenants ’ Union of the Greater Stockholm Area ( hyresgästföreningen i Stor -Stockholm, "the Tenants ’ Union "). He therefore gave notice of his intention to terminate the lease in accordance with Chapter 12, section 54 of the Land Act ( jordabalken ), with a view to having its terms altered. He proposed to the landlord the conclusion of a new agreement with a fixed rent and no negotiation clause. Following the rejection of his offer, he brought the dispute before the Rent Review Board ( hyresnämnden ) for Stockholm County on 23 June 1983. B. Proceedings before the Rent Review Board 9. In accordance with the legislation in force (see paragraph 19 below), the section of the Rent Review Board which examined the case was composed of a chairman and two lay assessors ( intresseledamöter ). At the time of his appointment, the chairman, Mr Göran Hogebrandt, held a non-permanent judicial appointment as an associate judge in the Court of Appeal. The two assessors, who were nominated respectively by the Swedish Federation of Property Owners and the National Tenants ’ Union, were experts on the administration of apartment buildings and on the problems of tenants. One, Mr Jan Åke Hedin, the managing director of his own electricity business, was also the president of one of the district associations affiliated to the Stockholm Landlords ’ Union ( Stockholms Fastighetsägareförening, "the Landlords ’ Union "). The other, Mr Gösta Gröndahl, a retired customs official, was a member of the Tenants ’ Union and had previously been the president of one of the district associations for nine years. 10. The applicant first challenged the two lay assessors because they had been nominated by a landlords ’ association and a tenants ’ organisation (see paragraph 19 below). He considered that they could not decide his case objectively and impartially because the Tenants ’ Union depended for its existence on the sums paid to it for conducting the rent negotiations (see paragraph 16, last sub-paragraph, below) and the Landlords ’ Union also derived a major part of its raison d ’ être from its participation in these negotiations. In addition he claimed that there was a risk of discrimination on political grounds because the Tenants ’ Union was socialist in outlook, whereas he was a local elected representative belonging to a moderate right wing grouping. As regards the merits, he sought the deletion of the negotiation clause from the lease and contested the amount of the rent. 11. On 17 November 1983 the Rent Review Board held a hearing at which the applicant and his representative and the landlord ’ s representative were present. The chairman dismissed the applicant ’ s challenge because the rules governing the appointment of the lay assessors did not in themselves provide a ground for such a challenge and because there were no other grounds on which it could be based. After having heard the views of the parties as to the merits of the case, the Rent Review Board went on to state that its decision would be available at its secretariat on 1 December 1983. On that date it dismissed Mr Langborger ’ s claims. Its decision, which was communicated to him through the post, referred, inter alia, to the declarations of the competent minister during the examination of the Rent Negotiation Bill (see paragraph 16 below) regarding the discretion conferred on rent review boards in deciding whether negotiation clauses should be retained. C. The proceedings in the Housing and Tenancy Court 12. Mr Langborger appealed from this decision to the Housing and Tenancy Court ( bostadsdomstolen ). He relied on Articles 6, 11 and 13 (art. 6, art. 11, art. 13) of the Convention and sought a thorough examination of the challenge which he had submitted at first instance; he also challenged the lay assessors of this court. As to the merits, he repeated his claim that he should not be represented by the Tenants ’ Union and that he should be permitted to fix his rent in direct negotiations with the landlord. 13. The court which examined the applicant ’ s appeal was composed of four members (see paragraph 23 below). The President, Mr Hans Svahn, had, until his appointment to the Housing and Tenancy Court, presided over a Chamber of the Svea Court of Appeal and still retained this post, on a formal basis, while exercising his new function. The other lawyer, who acted as rapporteur, Mr Hans Anderberg, remained a Rent Judge (see paragraph 19 below). The two lay assessors had (like the assessors sitting on the Rent Review Board) been nominated by, respectively, the Swedish Federation of Property Owners and the National Tenants ’ Union (see paragraph 22 below). One was an expert on the administration of apartment buildings and the other on tenants ’ problems. The first, Mr Bertil Tullberg, was a titular lay assessor; before retiring he had worked for the Stockholm Landlords ’ Union as legal adviser from 1943 and then as its managing director. The second, Mrs Märta Kåremo, was a salaried official of the National Tenants ’ Union, where she was responsible for staff legal training. She sat on the Housing and Tenancy Court as a substitute lay assessor. 14. The landlord of the flat was represented by the same official of the Landlords ’ Union who had assisted him before the Rent Review Board (see paragraph 11 above). 15. On 28 December 1983 the Housing and Tenancy Court informed Mr Langborger by letter that it considered that it might "determine the case as it was constituted at present and without a hearing". On 23 February 1984 the rapporteur rejected the application challenging the two lay assessors. The rules governing their appointment could not in themselves constitute valid grounds for their disqualification. On 2 April 1984 the Housing and Tenancy Court dismissed the remainder of Mr Langborger ’ s appeal and upheld the Rent Review Board ’ s decision. It gave its ruling in private, in the absence of the parties and without having held a hearing. Its decision was final. The applicant received a photocopy of this decision through the post. On 17 April 1984 he obtained a copy of the decision of 23 February which, by error, had not yet been sent to him. II. DOMESTIC LEGISLATION AND CASE-LAW A. The negotiation clause 16. Section 2 of the 1978 Rent Negotiation Act ( hyresförhandlingslagen, "the 1978 Act") defines the negotiation clause as a provision in a lease whereby the tenant agrees to be bound by the terms of the lease, in particular regarding the rent, as accepted by the association conducting the negotiations. It provides that this clause is introduced or retained if this is not unreasonable, having regard to the tenant ’ s standard of living and his opinion and to the opinion of other tenants affected by the clause. A dispute regarding the insertion or retention of a negotiation clause may be submitted to a rent review board. According to the preparatory documents, this possibility was introduced to provide legal protection for private individuals, in particular those who were not members of the organisations which participated in the negotiations. The board may exempt the party concerned from the obligation to accept a negotiation clause; in deciding whether to do so, it must, inter alia, weigh the interest in adopting a rational approach to rent negotiations against the fundamental need for the greatest possible contractual freedom for the individual (Government Bill No. 1977/78:175, p. 130 et seq.). Section 1 provides that these conditions are to be negotiated between, on the one hand, the landlord or the landlord and a landlords ’ organisation and, on the other hand, a tenants ’ organisation. The tenant - who therefore has no right to negotiate - need not be a member of the organisation. Under section 3, the system applies in principle to all the flats in a building. These negotiations, which must be conducted in the manner laid down in the Act, are not compulsory but depend on the desiderata of the parties. If one of them refuses to conclude an agreement, the dispute may be referred to the Rent Review Board. Under section 20, the rent may incorporate the amount - a percentage of the rent agreed in the negotiations - payable to the tenants ’ organisation for its role in these negotiations. 17. The principal advantage which the landlords ’ associations derive from the system is that they only have to negotiate rents with the tenants ’ organisations and not with the individual tenants. For their part the tenants ’ organisations can exert, through their right to represent the tenants, a continuous and durable influence on the conditions of the market in rental accommodation. At present this system applies to all accommodation owned by public organisations and to 80% of privately owned buildings comprising more than two flats. B. The Rent Review Boards 18. Rent review boards were set up by the 1973 Lease Review Boards and Rent Review Boards Act (lag 1973:188 om arrendenämnder och hyresnämnder, the "1973 Act"). They hear, inter alia, disputes on rents arising in connection with the provisions of Chapter 12 of the Land Act. 19. Under section 5, each rent review board is composed of a chairman - referred to as a Rent Judge - and two lay assessors, one of whom must be familiar with the problems of the administration of property and the other with those of tenants. The chairman is appointed by the Government or by an authority delegated by them, on the recommendation - which is always requested, except in three specific cases - of the Judicial Appointments Recommendation Board ( tjänsteförslagsnämnd ). He must have legal training and his post is full-time. The lay assessors are appointed by the National Board of the Judiciary ( Domstolsverket ) for a term of office of three years, which is generally renewed. Under section 6 para. 2 of the 1973 Act, the representative organisations of the housing sector (essentially the Swedish Federation of Property Owners and the National Tenants ’ Union ) must be able to put forward candidates when the appointment to be made concerns their interest group. The persons selected sit in a personal capacity and not as the representatives of their organisations. The lay assessors are not designated in advance for each case, but carry out their functions in accordance with a prepared schedule; their duties are not full-time. In addition, if a board has several sections, cases are, in practice, allocated on a geographical basis. 20. In principle, proceedings before a rent review board are oral. They are governed by the general provisions of the Administrative Act ( förvaltningslagen ), although the Code of Judicial Procedure applies for certain formalities. The board ’ s decisions must contain a statement of reasons and be given in public. They are pronounced on the day of the hearing or within two weeks thereof at the latest. A copy is sent to the parties. C. The Housing and Tenancy Court 21. The Housing and Tenancy Court was set up by an Act of 1974 (lag 1974:1081 om bostadsdomstol, "the 1974 Act") and has jurisdiction for the whole of Sweden. It hears appeals lodged against the decisions of the rent review boards. Its judgments are final. 22. The court is composed of at least three lawyers ("Housing Judges"), a technical assessor - who in certain cases replaces one of the lawyers - and a maximum of twelve lay assessors. All the members are appointed by the Government for a term of office of three years which is renewable. The lawyer members are, in general, judges, while the lay assessors are experts on the housing market. An identical nomination procedure to that operating for the appointment of lay assessors to rent review boards (see paragraph 19 above) applies. 23. The court is always presided over by a lawyer. It can sit with seven members or, as in this instance, with four. In the latter case, there must be two housing judges and two lay assessors. If they are unable to reach a majority decision, the president has a casting vote. The proceedings are written, but a hearing may be held if that appears to be necessary for the purposes of the investigation. In some cases argument is taken on a specific point, while in others it concerns the case as a whole. The Housing and Tenancy Court applies the general provisions of the Code of Judicial Procedure. Except in certain cases - which are not relevant here - its judgments are given in public. If the court cannot give a decision at a hearing, it makes the text thereof available to the parties at the registry and communicates to them a copy by post. 24. The Supreme Court ( Högsta domstolen ) has had occasion to rule on the independence and impartiality of a lay assessor who had to sit in a case involving the association which had nominated him (judgment of 21 September 1982, case no. Ö 600/81, Hyresgästföreningen Kroken, in Nytt Juridiskt Arkiv (NJA), 1982, p. 564). It held that there was no ground for allowing the challenge. The Supreme Court first considered the lay assessors ’ position in general. It pointed out that their presence was "designed to ensure that there were persons on the court who are well acquainted with the questions with which the court has to deal and who can, in an authoritative way, express the ideas of the interest groups concerned." It held that: "... the fact that a member, generally speaking, represents a certain interest group does not mean that he is biased when dealing with a case where one of the parties belongs to this interest group. As was stressed in the preparatory documents (NJA II 1974, p. 546), it is not intended that the lay assessors in their capacity as judges should feel bound by the interests which they can be said to represent. They should, like the other members, carry out their duties as independent judges and not as representatives of party interests." Turning then to the case at hand, it rejected the challenge which was based on "the viewpoint that every member who is closely linked to the tenants ’ movement, for that reason alone, is biased when dealing with such a case". In setting out its reasoning the Supreme Court said inter alia: "... it should first be pointed out that it is not the task of the lay assessors of the Housing and Tenancy Court to represent their organisations. They should represent the whole interest group in question without regard to their involvement in a particular organisation. The legislation is obviously based on the assumption that the lay assessors will be able to deal impartially with disputes even where the interests of their organisation are directly at issue, and it is not compatible with the provisions of the Act generally to regard members attached to an organisation as biased in such disputes." The Court added however: "there may of course be grounds for challenging a member of the court if he has been involved in the dispute before the court." | The applicant complained in particular that an action he had brought with a view to having a clause deleted from his lease had not been heard by an independent and impartial tribunal. The clause in question stipulated that the rent should be fixed by negotiation between a named landlord’s association and a named tenant’s association. |
763 | Right to life and right to respect for private life | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1943 and lives in Braunschweig. 8. The applicant and his late wife B.K., born in 1950, had lived together since 1978 and married in 1980. From 2002 onwards, B.K. had been suffering from total sensorimotor quadriplegia after falling in front of her doorstep. She was almost completely paralysed and needed artificial ventilation and constant care and assistance from nursing staff. She further suffered from spasms. According to the medical assessment, she had a life expectancy of at least fifteen more years. She wished to end what was, in her view, an undignified life by committing suicide with the applicant’s help. The couple contacted the Swiss assisted-suicide organisation, Dignitas, for assistance. 9. In November 2004 B.K. requested the Federal Institute for Drugs and Medical Devices ( Bundesinstitut für Arzneimittel und Medizinprodukte – “the Federal Institute”) to grant her authorisation to obtain 15 grams of pentobarbital of sodium, a lethal dose of medication that would enable her to commit suicide at her home in Braunschweig. 10. On 16 December 2004 the Federal Institute refused to grant her that authorisation, relying on section 5(1) (6) of the German Narcotics Act ( Betäubungsmittelgesetz – see “Relevant domestic law” below). It found that her wish to commit suicide was diametrically opposed to the purpose of the Narcotics Act, which was aimed at securing the necessary medical care for the individuals concerned. Authorisation could therefore only be granted for life-supporting or life-sustaining purposes and not for the purpose of helping a person to end his or her life. 11. On 14 January 2005 the applicant and his wife lodged an administrative appeal with the Federal Institute. 12. In February 2005 the applicant and his wife, who had to be transported lying on her back on a stretcher, travelled for approximately ten hours over a distance of more than 700 kilometres from Braunschweig to Zurich in Switzerland. On 12 February 2005 B.K. committed suicide there, assisted by Dignitas. 13. On 3 March 2005 the Federal Institute confirmed its earlier decision. In addition, it expressed doubts as to whether a State-approved right of an individual to commit suicide could be derived from Article 8. In any event, Article 8 could not be interpreted as imposing an obligation on the State to facilitate the act of suicide with narcotic drugs by granting authorisation to acquire a lethal dose of medication. A right to commit suicide would be inconsistent with the higher-ranking principle enshrined in Article 2 § 2 of the German Basic Law (see “Relevant domestic law” below), which laid down the “comprehensive” obligation of the State to protect life, inter alia by refusing to grant authorisation to obtain a lethal dose of a drug for the purpose of committing suicide. 14. Finally, the Federal Institute “informed” the applicant that he had no standing to lodge an administrative appeal as he lacked the need for legal protection ( Rechtsschutzbedürfnis ). In particular, the applicant could not improve his own position through an appeal, as his legal position had not been the subject of the administrative proceedings. 15. On 4 April 2005 the applicant lodged an action for a declaration that the decision of the Federal Institute had been unlawful ( Fortsetzungsfeststellungsklage ) and that it thus had a duty to grant his wife the requested authorisation. 16. On 21 February 2006 the Cologne Administrative Court ( Verwaltungsgericht ) declared the applicant’s action inadmissible. It found that he lacked standing to lodge the action as he could not claim to be the victim of a violation of his own rights. The Federal Institute’s refusal to grant his wife authorisation to obtain a lethal dose of medication did not interfere with his right to protection of his marriage and family life as guaranteed by Article 6 § 1 of the Basic Law ( Grundgesetz – see “Relevant domestic law” below). Any other interpretation would lead to the assumption that each infringement of the rights of one spouse would automatically also be an infringement of the rights of the other spouse. That assumption would water down the separate legal personality of each spouse, which was clearly not the purpose of Article 6 § 1 of the Basic Law. Furthermore, the contested decisions did not interfere with his own right to respect for family life under Article 8 of the Convention, as they did not affect the way in which the applicant and his wife lived together. 17. Moreover, the applicant could not rely on his wife’s rights, as the right to be granted authorisation to obtain the requested dose of drugs was of an eminently personal and non-transferable nature. Even assuming that there had been a violation of his late wife’s human dignity by the Federal Institute’s refusal, according to the Federal Constitutional Court’s case-law (see “Relevant domestic law and practice” below) the refusal could not produce effects beyond her life as it did not contain elements of disparagement capable of impairing the applicant’s wife’s image in the eyes of posterity. 18. Finally, the court held that in any event the refusal of the Federal Institute to grant the applicant’s wife the requested authorisation had been lawful and in compliance with Article 8 of the Convention. In particular, any interference with her right to respect for private life was necessary in a democratic society for the protection of health and life and thus also for the protection of the rights of others. Referring to the Court’s judgment in the case of Pretty (see Pretty v. the United Kingdom, no. 2346/02, § 74, ECHR 2002 ‑ III), the court held that the domestic authorities had a wide margin of appreciation to assess the danger and risks of abuse. Therefore, the fact that the provisions of the Narcotics Act permitted exceptions only for what was medically needed could not be considered disproportionate. 19. On 22 June 2007 the North-Rhine Westphalia Administrative Court of Appeal ( Oberverwaltungsgericht ) dismissed the applicant’s request for leave to appeal. It found, in particular, that the right to protection of marriage and family life under Article 6 § 1 of the Basic Law and Article 8 § 1 of the Convention did not confer a right to have the spouses’ marriage terminated by the suicide of one of them. Moreover, it considered that the decisions of the Federal Institute had not interfered with the applicant’s right to respect for private life within the meaning of Article 8 § 1 of the Convention. Even if the right to die had existed, its very personal character would not allow third persons to infer from Article 6 § 1 of the Basic Law or Article 8 § 1 of the Convention a right to facilitate another person’s suicide. Finally, the applicant could not rely on Article 13 as he had no arguable claim to be the victim of a violation of a right guaranteed under the Convention. 20. On 4 November 2008 the Federal Constitutional Court ( Bundesverfassungsgericht, no. 1 BvR 1832/07) declared a constitutional complaint lodged by the applicant inadmissible as he could not rely on a posthumous right of his wife to human dignity. It held that the posthumous protection of human dignity extended only to violations of the general right to respect, which was intrinsic to all human beings, and of the moral, personal and social value which a person had acquired throughout his or her own life. However, such violations were not at stake in respect of the applicant’s wife. Furthermore, the applicant was not entitled to lodge a constitutional complaint as legal successor to his deceased wife. In particular, it was not possible to lodge a constitutional complaint to assert another person’s human dignity or other non-transferable rights. A legal successor could only introduce a constitutional complaint in cases, which primarily involved pecuniary claims and where the complaint was aimed at pursuing the successor’s own interests. III. COUNCIL OF EUROPE DOCUMENTS 25. Recommendation no. 1418 (1999) of the Council of Europe, insofar as relevant, reads as follows: “9. The assembly therefore recommends that the Committee of Ministers encourage the member states of the Council of Europe to respect and protect the dignity of terminally ill and dying persons in all respects: a. by recognising and protecting a terminally ill or dying person’s rights to comprehensive palliative care, while taking the necessary measures: (...) b. by protecting the terminally ill or dying person’s right to self-determination, while taking the necessary measures: (...) iii. to ensure that no terminally ill or dying person is treated against his or her will while ensuring that he or she is neither influenced nor pressured by another person. Furthermore, safeguards are to be envisaged to ensure that their wishes are not formed under economic pressure; iv. to ensure that a currently incapacitated terminally ill or dying person’s advance directive or living will refusing special medical treatments is observed... v. to ensure that – notwithstanding the physician’s ultimate responsibility – the expressed wishes of a terminally ill or dying person with regards to particular forms of treatment are taken into account, provided they do not violate human dignity; vi. to ensure that in situations where an advance directive of living will does not exist, the patient’s right to life is not infringed upon. A catalogue of treatments which under no conditions may be withheld or withdrawn is to be defined. c. by upholding the prohibition against intentionally taking the life of terminally ill or dying person’s while: (i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member states, in accordance with Article 2 of the European Convention on Human Rights which states that “no one shall be deprived of his life intentionally”; (ii) recognising that a terminally ill or dying person’s wish to die never constitutes any legal claim to die at the hand of another person; (iii) recognising that a terminally ill or dying person’s wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.” | In 2004 the applicant’s wife, who was suffering from complete quadriplegia, unsuccessfully applied to the Federal Institute for Pharmaceutical and Medical Products for authorisation to obtain a lethal dose of a drug that would have enabled her to commit suicide at home in Germany. An administrative appeal by the applicant and his wife was dismissed. In February 2005 they both went to Switzerland, where the wife committed suicide with the help of an association. In April 2005 the applicant unsuccessfully brought an action to obtain a declaration that the Federal Institute’s decisions had been unlawful. His appeals to the administrative court, administrative court of appeal and Federal Constitutional Court were declared inadmissible. The applicant complained that the domestic courts’ refusal to examine the merits of his complaint had infringed his right to respect for private and family life. |
977 | Radio communications | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1954, 1976 and 1971 respectively and live in Lecco. 6. The first applicant is the editor of a local online newspaper in the province of Lecco. The other two applicants are journalists working for the newspaper. 7. In the course of their activities, the applicants used radio equipment to access frequencies used by the police or the carabinieri. This enabled them to learn of any communications transmitted in that way, so that they could arrive quickly on the scene when wishing to report on specific incidents. 8. On 1 August 2002 the applicants listened in on a conversation during which the Merate carabinieri operations centre decided to send a patrol to a location where, according to anonymous sources, weapons had been stored illegally. 9. The carabinieri accordingly went to the location mentioned, and the second and third applicants arrived on the scene immediately afterwards. 10. Having obtained a search warrant, the carabinieri searched the applicants ’ car, finding two frequency-modulation transmitter/receivers that were capable of intercepting police radio communications. 11. The carabinieri then went to the two journalists ’ editorial office and seized two fixed radio receivers, which were tuned to the frequencies used by the carabinieri. Other frequencies used by police operations centres were stored in the devices ’ memory. A. The criminal proceedings against the applicants at first instance 12. Criminal proceedings were instituted against the first and second applicants for illegally installing equipment designed to intercept communications between law-enforcement agencies ’ operations centres and patrols ( Articles 617, 617 bis and 623 bis of the Criminal Code ). The third applicant was charged with accessing the aforementioned communications ( Articles 617 and 623 bis of the Criminal Code ). 13. On 9 November 2004 the Lecco District Court acquitted the applicants. It held that the relevant Articles of the Criminal Code were to be interpreted in the light of Article 15 of the Constitution, which only protected communications of a confidential nature. 14. The District Court observed that the radio device used by the law-enforcement agencies was unable to ensure the confidentiality of the information it transmitted. Accordingly, the interception of the communications in question did not constitute an offence. Moreover, the possession and use of radio receivers were not prohibited as such. B. Proceedings on appeal 15. The Milan principal public prosecutor and the Lecco public prosecutor appealed. They argued that the Lecco District Court ’ s interpretation was inconsistent with the Court of Cassation ’ s case-law in such matters ( citing in particular judgment no. 12655 of 23 January 2001) and that the communications in issue were clearly confidential, bearing in mind the aims of ensuring public safety and protecting public order. In addition, the communications concerned the initial investigations following the commission of an offence. They were therefore subject to a confidentiality requirement pursuant to Article 329 of the Code of Criminal Procedure. 16. The confidential nature of the communications was also obvious from the fact that the carabinieri used coded language for communications concerning the location and the type of intervention, clearly seeking to ensure that no third parties had knowledge of the information being exchanged. In addition, the radiofrequencies involved had been exclusively assigned to operations centres by the Ministry of Defence. 17. Furthermore, in order to listen in on the conversations, the applicants had had to purchase special radio equipment, as ordinary equipment could not be used for this purpose. On the other hand, the fact that such devices were freely available on the market did not justify their use for intercepting conversations between law-enforcement officers. 18. In addition, in accordance with Presidential Decree no. 447 / 2001, as in force at the material time, devices of this kind were intended to be purchased by amateur radio operators but could not be used to intercept police radiofrequencies. Lastly, the Ministry of Communications ’ decree of 11 February 2003 had expressly prohibited amateur radio operators from intercepting communications which they were not entitled to receive. C. Judgment of the Milan Court of Appeal 19. In a judgment of 15 May 2007 the Milan Court of Appeal found the first and second applicants guilty and sentenced them to one year and three months ’ imprisonment. The third applicant was sentenced to six months ’ imprisonment. The Court of Appeal suspended the applicants ’ sentences. 20. It observed that Article 623 bis of the Criminal Code, as amended by Law no. 547 of 23 November 1993, had extended the scope of criminal responsibility to cover all remote data transmission, thus including the interception of conversations between the law-enforcement agencies ’ operations centres and patrols. 21. Such communications were, moreover, clearly confidential. Reiterating all the arguments put forward by the Milan and Lecco public prosecutors, particularly regarding the aims of ensuring public safety and protecting public order, the Court of Appeal held that Article 329 of the Code of Criminal Procedure was also at issue in the present case. D. Proceedings in the Court of Cassation 22. The applicants appealed to the Court of Cassation. They contended that the communications in question had been transmitted on unencrypted frequencies and thus could not be treated as confidential. Furthermore, they had been acting in a professional capacity as journalists, and their actions were therefore justified under Article 51 of the Criminal Code and in terms of freedom of the press. 23. In a judgment of 28 October 2008 the Court of Cassation found against the applicants, upholding the Court of Appeal ’ s position as to the confidential nature of the communications and reiterating that this interpretation was consistent with its own approach in similar cases, particularly in judgments no. 25488 of 6 May 2004 and no. 5299 of 15 January 2008. 24. Addressing the applicants ’ argument concerning freedom of the press, the Court of Cassation stated that the right to impart information, which they had relied on, might have prevailed over the public interests protected by criminal law in a case of alleged defamation. However, that right could not take precedence in a case concerning the illegal interception of communications between law-enforcement officers. ... | This case concerned the conviction of three journalists who intercepted radio communications between carabinieri in order to arrive quickly at crime scenes and report on them for their local newspaper. |
526 | Attacks on Roma villages and destruction of houses and possessions | I. THE CIRCUMSTANCES OF THE CASE 15. The applicants are Romanian nationals of Roma origin. They used to live in the village of Hădăreni, in the Mureş district, and are agricultural workers. After the events described below, some applicants returned to live in Hădăreni, while others, who are homeless, live in various parts of the country. Mr Iulius Moldovan is currently living in Spain and Mrs Maria Floarea Zoltan is living in the United Kingdom. 16. The facts of the case, as submitted by the parties, may be summarised as follows: A. The incident in 20 September 1993 17. On the evening of 20 September 1993 a row broke out in a bar in the centre of the village of Hădăreni (Mureş district). Rapa Lupian Lăcătuş and Aurel Pardalian Lăcătuş, two Roma brothers, along with another Rom, Mircea Zoltan, began to argue with a non-Rom, Cheţan Gligor. The verbal confrontation developed into a physical one which ended with the death of Cheţan Crăciun, who had come to the aid of his father. The three Roma then fled the scene and sought refuge in a neighbour's house. 18. Soon afterwards, news of the incident spread and a large number of villagers learned of Cheţan Crăciun's death. Enraged, they gathered together to find the Roma. The angry mob arrived at the house where the three were hiding and demanded that they come out. Among the crowd were members of the local police force in Hădăreni, including the Chief of Police Ioan Moga, and Sergeant Alexandru Şuşcă, who had heard of the incident. When the brothers refused to come out, the crowd set fire to the house. As the fire engulfed the house, the brothers tried to flee but were caught by the mob who beat and kicked them with vineyard stakes and clubs. The two brothers died later that evening. Mircea Zoltan remained in the house, where he died in the fire. It appears that the police officers present did nothing to stop these attacks. The applicants alleged that, on the contrary, the police also called for and allowed the destruction of all Roma property in Hădăreni. 19. Later that evening the villagers decided to vent their anger on all the Roma living in the village and proceeded to burn the Roma homes and property in Hădăreni, including stables, cars and goods. The riots continued until the following day. In all, thirteen Roma houses belonging to the applicants were destroyed. The individual applicants made the following allegations: 1. Iulius Moldovan 20. The applicant alleged that it was on his property that the three Roma were killed on 20 September 1993. His home and other property were set on fire and destroyed. 2. Melenuţa Moldovan 21. The applicant alleged that her house and various personal possessions were destroyed by the fire. 3. Maria Moldovan 22. The applicant alleged that, on the evening of 20 September 1993, an angry mob had appeared at her door, entered the house and destroyed all her belongings. The mob had then proceeded to set fire to her home and she had watched as the flames destroyed it. The next day, when she had returned home with her husband and daughter, she had been met by an enraged mob of villagers who had prevented her from entering the house. Police officers Ioan Moga, Alexandru Şuşcă and Florin Nicu Drăghici had taken hold of her, sprayed pepper in her face and then proceeded to beat her badly. Costică Moldovan had witnessed these events. Colonel Drăghici had also fired at Costică Moldovan and his family as they tried to return home to fetch their pigs. The applicant declared that her house had been damaged and that she had lost valuables and other possessions. 4. Otilia Rostaş 23. The applicant alleged that on the evening of 20 September 1993 she had learned from her eleven-year-old daughter what was happening in Hădăreni. Her daughter had told her that a neighbour had said that the non-Roma villagers wanted to kill all the Gypsies in retaliation for the death of Cheţan Crăciun. 24. Fearing for the safety of her children, the applicant had taken them to her mother's house. Later that evening, when she returned, she witnessed several people gathered in front of the courtyard throwing stones and pieces of wood and eventually setting her house on fire. As she ran back to her mother's house, she saw three people armed with clubs, urging the mob to set fire to it. Within minutes, her mother's home was in flames. 25. The following day the applicant had attempted to return to what was left of her home to assess the damage. As she approached her property, she had been threatened verbally and physically by an angry mob of non-Roma villagers and police officers. One villager had threatened her with a shovel and others had violently thrown rocks at her. The villagers, including the police officers present, had prevented her from entering what remained of her home. Fearing for her safety, the applicant and her children had left Hădăreni. 26. Later that day she had once again attempted to return to her home along with other Roma villagers. This time the applicant had found the road to her house entirely blocked by an even larger crowd of villagers, all of whom had been carrying clubs. Police officers had also been among the crowd. Among the enraged mob of villagers, the applicant had recognised Officer Nicu Drăghici, who was holding a truncheon. A police car had even pursued the applicant and other Roma trying to return to their homes, firing shots at them and shouting at them to leave the village. The applicant alleged that her house had been destroyed and that she had lost valuable goods. 5. Petru (Gruia) Lăcătuş 27. Petru (Gruia) Lăcătuş alleged that his house had been destroyed, as had the three cars he had had in the courtyard. 6. Floarea Maria Zoltan 28. The applicant stated that, on the night of 20 September 1993, her husband, Mircea Zoltan, and her two brothers, Rapa Lupian Lăcătuş and Aurel Pardalian Lăcătuş, had been brutally murdered in the Hădăreni pogrom. She alleged that one of the thirteen Roma houses set on fire that evening had belonged to her late mother, Cătălina Lăcătuş. 7. Petru (Dîgăla) Lăcătuş 29. The applicant alleged that his house had been destroyed and that he had lost valuable goods. His wife had been pregnant at the time of the incident and, because she had been beaten and had experienced severe fear, the baby had been born with brain damage. B. The investigation into the incident 30. In the aftermath of the incident the Roma residents of Hădăreni lodged a criminal complaint with the Public Prosecutors' Office. The complainants identified a number of individuals responsible for what had occurred on 20 September 1993. Among those identified were several police officers: Chief of Police Ioan Moga, his assistant Sergeant Alexandru Şuşcă, Colonel Florentin Nicu Draghici, a certain Panzaru from Luduş, and Lieutenant Colonel Constantin Palade, the Mureş County Chief of Police. 31. Thereafter, an investigation was initiated which identified the offenders who had actively participated in the killing of the Lăcătuş brothers and Mircea Zoltan, and the destruction of Roma houses and other property. 32. On 21 July 1994 three civilians – P.B., I.B. and N.G. - were remanded in custody. They were charged with extremely serious murder (under Articles 174 and 176 of the Criminal Code) and arson (under Article 217 § 4 of the Criminal Code). However, a few hours later they were released and all warrants for their arrest were set aside by order of the General Prosecutor. 33. By an order of 31 October 1994, on the basis of ample evidence that suggested police involvement in the incident, the case was sent to the Târgu-Mureş Military Prosecutors' Office, which had jurisdiction to investigate crimes committed by police officers. According to the order of the Public Prosecutors' Office of the Târgu-Mureş Court of Appeal, Lieutenant Colonel Palade had organised a small meeting with non-Roma villagers after the incident, advising them “not to tell anyone what the police had done if they wanted the incident to be forgotten and not have any consequences for themselves.” 34. By a resolution dated 15 November 1994, the Târgu-Mureş Military Prosecutors' Office ordered an extension of the investigation and the initiation of a criminal investigation in respect of Chief of Police Moga and Sergeant Şuşcă. According to the military prosecutor, the evidence produced so far indicated that these persons had incited the villagers to commit acts of violence against the Lăcătuş brothers and had even directly participated in setting fire to certain houses. On the basis of oral evidence, the prosecutor found that officers Moga and Şuşcă had participated in the events and “repeatedly” incited the villagers to take action against the men barricaded in the house, telling them to “set them on fire, because we cannot do anything to them”. Moreover, he found that Lieutenant Colonel Palade had required the inhabitants of Hădăreni “not to tell anyone anything about the actions of the police officers, and everything will be forgotten and you shall bear no consequences.” 35. On 10 January 1995, having regard to the involvement of Colonel Palade, the Târgu-Mureş Military Prosecutor declined jurisdiction to investigate the case and referred it to the Bucharest Territorial Military Prosecutors' Office. 36. On 22 August 1995 Colonel Magistrate M.S., the military prosecutor at the Bucharest Military Court, decided not to open a criminal investigation, stating that the evidence produced in the case had not confirmed the participation of Chief of Police Moga, Lieutenant Colonel Palade or Sergeant Şuşcă in the crimes committed during the riots. As to the statements made by various witnesses confirming the involvement of these police officers, the prosecutor found that one of them had been made by the sister of two of the victims and, given the fact that the officers had punished the victims several times, her evidence was obviously tendentious. The prosecutor found the other oral evidence confused. He concluded that the police officers could not be accused of having committed crimes, “even though one should accept that during the events they had used words such as 'do what you want, I have a family to take care of' or 'they will come out immediately if you set the house on fire'. Moreover, we cannot consider the lack of initiative and the inability of the two policemen to influence the behaviour of the furious villagers as a form of participation – either in the form of instigation or as possible moral complicity.” 37. In September 1995, the Head of the Bucharest Territorial Military Prosecutors' Office upheld the decision, refusing to open an investigation, and all charges against the police officers were dropped. An appeal lodged by the injured parties was dismissed by the Military Prosecutors' Office of the Supreme Court of Justice. 38. On 12 August 1997, the Public Prosecutor of the Târgu-Mureş Court of Appeal issued an indictment charging eleven civilians suspected of having committed crimes on 20 September 1993. 39. Certain testimonies confirmed that the police had promised the villagers involved in the riot that they would help to cover up the entire incident. Several defendants testified that two police cars driving to the scene of the incident that night had ordered, over their loudspeakers, that the house where the three Roma victims were hiding be set on fire. 40. On 11 November 1997 a criminal trial, in conjunction with a civil case for damages, began against the civilian defendants in the Târgu-Mureş County Court. During these proceedings, the applicants learned of the overwhelming extent of the evidence against the police. Various witnesses testified that police officers had not only been present that evening but had actually instigated the incident and then stood idly by as the two Lăcătuş brothers and Mircea Zoltan were killed and Roma houses destroyed. In this connection, witnesses cited the names of Chief of Police Moga, Colonel Drăghici and Sergeant Şuşcă. 41. In the light of numerous testimonies implicating additional individuals – both civilians and police officers – the applicants' lawyer asked the court to extend the indictment of 12 August 1997. As a result, the civilian prosecutor sent the relevant military prosecutor the information on which to base proceedings before a military court against the officers concerned. 42. The applicants Iulius Moldovan and Floarea Zoltan asked the court in writing to extend the criminal charges. According to them, the prosecutor refused to do so. 43. On 23 June 1998 the Târgu-Mureş County Court severed the civil and the criminal case because the criminal investigation had already lasted four years and the determination of the civil aspect would take even longer. C. The judgment of 17 July 1998 and the decisions on appeal 44. On 17 July 1998 the Târgu-Mureş County Court delivered its judgment in the criminal case. It noted the following: “The village of Hădăreni, belonging to the commune of Cheţani, is situated in the south-west Mureş district on the main road between Târgu-Mureş and Cluj and has a population of 882 inhabitants, of which 641 are Romanians, 145 Hungarians and 123 Roma. The Roma community represents 14% of the total population and the marginal lifestyle of some categories of Roma, especially the ones who settled in the village after 1989, has often generated serious conflicts with the majority of the population. Due to their lifestyle and their rejection of the moral values accepted by the rest of the population, the Roma community has marginalised itself, shown aggressive behaviour and deliberately denied and violated the legal norms acknowledged by society. Most of the Roma have no occupation and earn their living by doing odd jobs, stealing and engaging in all kinds of illicit activities. As the old form of common property that gave them equal rights with the other members of the community was terminated, the Roma population were allocated plots of land. However, they did not work the land and continued to steal, to commit acts of violence and to carry out attacks, mainly against private property, which has generated even more rejection than before. Groups of Roma have started arguments with the young people in the village, attacked them or stolen their goods and money. Moreover, they ostentatiously use insults, profanities and vulgar words in public places. ... The records of the criminal-investigation authorities and of the courts of law in Mureş County disclose that seven criminal cases were registered between 1991 and 1993, having as their object acts of violence ranging from simple blows to murder. In fact, the real number of the crimes committed by the Roma was much higher, but many of them were not judged in court because the injured parties did not file complaints, withdrew them or made peace with the perpetrators, for fear of vindictive threats by the Roma. The community feels that most of the disputes were solved in an unfair, unsatisfactory manner in favour of Roma and this has caused an increase in the number of personal or collective vindictive actions.” 45. The court went on to establish that, on the evening of 20 September 1993, the Lăcătuş brothers and Mircea Zoltan had been waiting at the village bus station and had quarrelled with Cheţan Gligor about the attempts made by the three Roma to attract the attention of a girl. Answering the Roma's mockery and insults addressed to him and to his cow, Cheţan Gligor started to threaten the Roma with his whip and even hit Pardalian Lăcătuş. A fight followed, during which Cheţan Crăciun, who had intervened to defend his father, was stabbed in the chest by Rapa Lupian Lăcătuş. The Roma ran away, while Cheţan Crăciun was brought to the hospital, where he died about half an hour later. During that time the Roma took refuge in the house of the applicants Lucreţia and Iulius Moldovan, while villagers gathered around the yard of the house. Two police officers, Chief of Police Moga and Sergeant Şuşcă, arrived at the scene of the incident minutes later, having been called by some villagers. The policemen were allegedly under the influence of alcohol. Before and after the arrival of the police, the villagers threw stones, pieces of wood and clods of earth at the house and shouted things like “Set fire to the house! Let them burn like rats!” A villager started to throw flammable materials at the house and was soon followed by others, including children. When the fire spread, two of the Roma men came out of the house. Rapa Lupian Lăcătuş was immediately immobilised by Mr Moga, while Pardalian Lăcătuş managed to run away. Mircea Zoltan was stopped from coming out of the house by a villager and was hit by another's fist and a shovel, which finally led to his dying in the fire. His carbonized body was found the following day in the burned-down house. The autopsy report established that he had died from respiratory failure, 100% carbonized. 46. To escape the fury of the villagers, Chief of Police Moga took Rapa Lupian Lăcătuş to the cemetery, after trying in vain to enter several courtyards in the village, which were all locked. The court noted that “the policeman [Moga], realising his presence was useless, abandoned his prisoner to the infuriated crowd”. According to the autopsy report, Rapa Lupian Lăcătuş died a violent death from shock and internal bleeding, with multiple traumatic injuries affecting his liver, a hemiperitoneum and peripheral haematoma on 70% of his body. 47. Pardalian Lăcătuş was caught by the crowd near the cultural centre, where he was beaten to death. The autopsy report found that he had died as a result of direct blows from blunt objects causing eighty-nine lesions on his body (multiple fractures of his arms, ribs and thorax, and multiple traumatic injuries and contusions). 48. During the trial, all the civilian defendants stated that, in addition to officers Moga and Şuşcă, two other policemen had arrived from the city of Luduş and encouraged the crowd to set fire to the houses. Two police cars had also arrived at Hădăreni, from which it was announced over loudspeakers that only the detached houses of the Gypsies should be set on fire in order not to cause accidents. At a meeting held the next day in the village square, Lieutenant Colonel Palade stated that the case would be covered up and a scapegoat found. 49. All the accused stated that they had been arrested for the first time in 1994, but only for a few hours or days, after which they had been released in order to allow them to harvest the crops, a reason they found strange, since most of them were not farmers. They also stated that very few questions were put to them and that the prosecutor even tried to put pressure on them. They were not questioned further until 1997, when they were arrested again. 50. The court further established that the villagers had declared that, on the night in question, the village was to be “purged of the Gypsies”, an intention clearly put into action, and found that, “The majority of the population of Hădăreni was directly or indirectly supported by the representatives of the authorities who came to the village and not only did nothing to stop the houses being set on fire, but also surrounded the area with groups of gendarmes.” 51. The court found that the action was not premeditated, but that all those present had acted jointly, in different ways (assault, murder, fire, destruction, etc.), to reach their declared goal of eliminating the Roma community from the village. 52. The court held that the preliminary investigation had been inadequate: “We deem that the inadequate manner in which the acts and ... procedures related to the investigation were performed reflect a negative attitude ... The same can be noted regarding the delayed submission of the autopsy reports on the victims (Cheţan Crăciun, Lăcătuş Rapa Lupian and Zoltan Mircea died on 21 September 1993 and the forensic reports were drafted in November 1993; mention should be made of the fact that none of the four forensic reports gave specific dates, but only an indication of the month when they were drafted) ... [Moreover,] the electoral meeting organised at the village stadium, attended by politicians, representatives of the police and the law, ... asked the population not to tell the truth and to delay the resolution of the case.” 53. The court also noted that the prosecution had not agreed to an extension of the criminal investigation or to the initiation of criminal proceedings against “other persons”. Therefore, the court could only rule in respect of those perpetrators prosecuted in accordance with Article 317 of the Code of Criminal Procedure. 54. The court convicted five civilians of extremely serious murder under Articles 174 and 176 of the Criminal Code and twelve civilians, including the former five, of destroying property, outraging public decency and disturbing public order. Among those convicted of destruction of property and disturbance was V.B., the Deputy Mayor of Hădăreni. The court pronounced prison sentences ranging from one to seven years, and noted that those given terms of less than five years had half the sentence pardoned under Law no. 137/1997. The court justified the sentences as follows: “Taking into consideration the characteristics of this particular case, the punishments applied to the defendants might seem too mild compared to the gravity of the crimes. We consider that, as long as persons who contributed to a greater extent to the criminal actions were not prosecuted and were not even the subject of an investigation, although there was enough evidence to prove their guilt, the defendants who were prosecuted should not be held responsible for all the crimes committed, but only for that part for which they are liable.” 55. On 17 July 1998, the Public Prosecutors' Office appealed against this judgment, asking, inter alia, for heavier sentences. On 15 January 1999, the Târgu-Mureş Court of Appeal convicted a sixth civilian, P.B., of extremely serious murder under Articles 174 and 176 of the Criminal Code, sentencing him to six years' imprisonment. It also increased the sentence under Article 174 in respect of N.G. to six years' imprisonment. However, it reduced the other sentences under Articles 174 and 176: in respect of V.B. and S.I.P. from seven to six years' imprisonment, in respect of V.B.N. and S.F. from five to two years' imprisonment, and in respect of N.B., I.B. and O.V. from three to two years' imprisonment. Finally, it discontinued the criminal proceedings against the Deputy Mayor V.B. 56. The Court of Appeal also reduced the sentences of those convicted of destruction of property under Article 217 of the Criminal Code. 57. On 22 November 1999, the Supreme Court of Justice upheld the lower courts' convictions for destruction, but reduced the charges of extremely serious murder to a lesser charge of serious murder with extenuating circumstances for V.B., P.B. and S.I.P., sentencing them to five years' imprisonment. It acquitted P.B. and N.G. 58. By a decree of 7 June 2000, the President of Romania issued individual pardons to S.I.P. and P.B., convicted of serious murder, whereupon they were released. D. The appeal procedure concerning the refusal to open an investigation against State authorities 59. On 22 August 1999, following new evidence brought to light in the criminal trial, the applicants lodged an appeal with the Military Prosecutors' Office of the Supreme Court of Justice against the decision of 22 August 1995 not to open an investigation against the police officers involved in the incidents of 20 September 1993. 60. On 14 March 2000 the Chief Military Prosecutor of the Supreme Court of Justice upheld the military prosecutor at Bucharest Military Court's decision of 22 August 1995. E. Reconstruction of the houses destroyed during the events and the victims' living conditions 61. By decision no. 636 of 19 November 1993, the Romanian Government allocated 25,000,000 Romanian lei (ROL) [1] for the reconstruction of the eighteen houses destroyed by fire on 20 September 1993. The Government decided, moreover, that this amount could also be used as financial assistance for the families affected in order to help them replace items of strict necessity destroyed during the fire. However, only four houses were rebuilt with this money and none of the families received financial assistance. 62. By a Government decision of 30 November 1993, a commission for the co-ordination of the reconstruction of the houses was created. Members of this commission included the mayor of Cheţani, G.G., and his Deputy, V.B. 63. In a letter of 30 June 1994 addressed to the Government, the Prefect of Mureş indicated that an additional amount of ROL 53,000,000 [2] was needed to rebuild the remaining ten houses. 64. By decision no. 773 of 25 November 1994, the Government granted an additional sum of ROL 32,000,000 [3] in funds, which had been earmarked for natural disasters occurring between March and September 1994. Four other houses were rebuilt. As shown in photographs submitted by the applicants, these constructions were defective, as there appear to be huge gaps between the window frames and the walls, and the roofs only partially cover the houses. 65. In a letter dated 30 November 1994 addressed to the Prefect of Mureş, Petru Rostaş, the father-in-law of the applicant Otilia Rostaş, requested that her house be rebuilt as a priority because, since the events, she had been living with her four children in a hen-house. 66. In a letter dated 8 November 1995, Liga Pro Europa, a human-rights association based in Târgu-Mureş, informed the Prefect that six houses had still not been rebuilt, which meant that six families had to spend another winter without a dwelling. Moreover, according to the association, most of the victims had complained about the bad quality of the rebuilt houses and alleged that the money allocated for this purpose had been improperly used. In a letter addressed to the Prefect in 1995, the mayor of Cheţani (of which Hădăreni is a part), G.G., a member of the reconstruction commission, reported that, of the fourteen houses destroyed by the fire, eight had been rebuilt or almost rebuilt. Concerning the remaining six houses, he reported that three of them posed “special problems” based in part on “the behaviour of the three families”, “the seriousness of the acts committed and the attitude of the population of Hădăreni towards these families”. In particular, one of the houses to be rebuilt was on land near the non-Rom victim's family (Cheţan Crăciun), who refused to have Gypsy families living close by. Another problem mentioned by the mayor was the house of the late mother of two of the Roma “criminals” who had died during the 1993 events. It appeared that, after the events, the Lăcătuş family had started living in the city of Luduş, so the mayor had proposed that a house be built for them at a place of their choice. 67. To date, six houses have not been rebuilt, of which two belonged to the applicants Petru (Dîgăla) Lăcătuş and Maria Floarea Zoltan. According to an expert report submitted by the Government, the damage caused to the houses of Petru (Gruia) Lăcătuş and Moldovan Maria had not been repaired, whereas the houses of Iulius Moldovan and Otilia Rostaş had been rebuilt but required finishing work. 68. On 2 September 1997 the applicant Iulius Moldovan wrote a letter to the President of Romania, informing him that six houses, including his, had still not been rebuilt. He urged the President to grant the necessary funds for the reconstruction of the houses, since he and his family were living in very difficult conditions in the home of the Rostaş family: fifteen people, including nine children, were living in two rooms and sleeping on the floor, which resulted in the children being continually ill. 69. The applicants submitted that, in general, following the events of September 1993, they had been forced to live in hen-houses, pigsties, windowless cellars, or in extremely cold and deplorable conditions: sixteen people in one room with no heating; seven people in one room with a mud floor; families sleeping on mud or concrete floors without adequate clothing, heat or blankets; fifteen people in a summer kitchen with a concrete floor (Melenuţa Moldovan), etc. These conditions had lasted for several years and, in some cases, continued to the present day. 70. As a result, the applicants and their families fell ill. In particular, the applicant Petru (Gruia) Lăcătuş had developed diabetes and begun to lose his eyesight. F. The outcome of the civil case 71. Following the decision of 23 June 1998 to sever the civil and criminal proceedings, on 12 January 2001 the Mureş Regional Court delivered its judgment in the civil case. The court noted that the victims had requested pecuniary damages for the destruction of the houses and their contents (furniture, etc.), as well as non-pecuniary damages. The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed, a criminal court having found twelve villagers guilty of these acts. Basing its decision on an expert report, the court awarded pecuniary damages for those houses which had not been rebuilt in the meantime, and maintenance allowances for the children of the Roma killed during the riots. On the basis of an expert report, the court awarded pecuniary damages in respect of the partial or total destruction of the houses of six Roma, including those of the third and fifth applicants. The court rejected the other applicants' request for pecuniary damages in respect of the rebuilt houses, finding, on the basis of the same expert report, that their value was either the same or even higher than the original buildings. It further refused all applicants damages in respect of belongings and furniture, on the ground that they had not submitted documents to confirm the value of their assets and were not registered as taxpayers capable of acquiring such valuable assets. The court stated, inter alia : “Mr Iulius Moldovan did not submit documents proving with certainty that he had any belongings. He claimed in particular that he was in the sheep business, from which he drew a substantial income, for instance, that he had a ton of wool in the attic of his house. However, from the information obtained by the court from the local tax office in Cheţani, it appears that the civil party was not registered as having any income. ... The damage suffered because of the destruction of the chattels and furniture has not been substantiated. The civil parties consider that their own statements, the lists of the belongings destroyed submitted to the court and the statements of the other witnesses who are also civil parties should be enough to substantiate their claims. Having regard to the context in which the destruction occurred and to the fact that all civil parties suffered losses, the court will dismiss as obviously insincere the statements made by each civil party in relation to the losses suffered by the other civil parties. Last but not least, the type of belongings allegedly destroyed and the quantity of goods allegedly in the possession of each civil party show a much more prosperous situation than that which a family of average income could have. Neither civil party adduced proof of having an income such as to allow them to acquire so many goods. As noted previously, the parties had no income at all. Moreover, the shape of the houses, the materials used for their construction and the number of rooms show an evident lack of financial resources. It should be stressed in this context that only work can be the source of revenue, and not events such as the present one...” 72. The court finally rejected all the applicants' requests for non-pecuniary damages on the ground that they had not substantiated their claim, and that the crimes committed were not of a nature to produce moral damage. 73. The court ordered the villagers convicted in the criminal trial to pay the damages awarded. 74. Having regard to some procedural errors in the Mureş Regional Court's judgment, the applicants lodged an appeal with the Mureş Court of Appeal. 75. On 17 October 2001 the Mureş Court of Appeal found that a number of procedural errors had occurred during the public hearings on the merits before the Mureş Regional Court: the hearings had been held in the absence of the accused and their lawyers; one of the original applicants, Adrian Moldovan, had not been summoned; the public prosecutor had not been given leave to address the court; a number of expert reports ordered by the court had not been completed, and confusion had been created as to the number and names of the victims and their children. The Court of Appeal concluded that these errors rendered the proceedings null and void. It therefore quashed the judgment of 12 January 2001 and ordered a new trial of the case. 76. The Mureş Regional Court delivered its judgment in the civil case on 12 May 2003. The court noted that the victims had requested pecuniary damages for the destruction of houses and their contents (furniture, etc.), as well as non-pecuniary damages. The court further noted that, during the events of 20 September 1993, eighteen houses belonging to the Roma population in Hădăreni had been totally or partially destroyed and three Roma had been killed. As a result of these events, the State had granted some money for the reconstruction of the houses. Basing its decision on an expert report drafted in 1999 and updated in 2003, the court ordered the following damages to be paid by the civilians found guilty by the criminal court: (a) Iulius Moldovan was awarded ROL 130,000,000 [4] in pecuniary damages in respect of the destroyed house, to be revised to take account of any devaluation in the national currency. The court further heard evidence from witnesses confirming that various assets belonging to the applicant, including furniture, belongings and the proceeds from the sale of more than 260 sheep, had been destroyed during the fire. However, the court refused to award damages on the ground that it was impossible to assess the loss. (b) As regards Otilia Rostaş, the court noted that her house did not appear on the list of the houses (totally or partially) destroyed drawn up by Cheţani Town Hall. The court heard testimony confirming the destruction of part of the roof and of the wooden structure of her house, but noted that there was no evidence to evaluate the damage. Therefore, it rejected the request for pecuniary damages. (c) Petru (Gruia) Lăcătuş was awarded ROL 16,000,000 [5] in pecuniary damages in respect of the destroyed house. The court noted the applicant's claim that various assets he had owned had been destroyed during the fire – furniture, three cars, jewellery and money – but rejected it as unsubstantiated. (d) As regards Melenuţa Moldovan, the court awarded ROL 28,000,000 [6] for the destroyed house. The court heard evidence from two witnesses confirming that the applicant had had various belongings which had been destroyed by the fire, but refused to award damages in that respect, as there was no evidence as to their value. (e) Maria Moldovan was awarded ROL 600,000 [7] for the destroyed house. The court rejected her claim in respect of the destroyed belongings as there was no evidence as to their value. (f) Petru (Dîgăla) Lăcătuş was awarded, together with Floarea Maria Zoltan and Monica Simona Lăcătuş, as the brother and sisters of the deceased victims, ROL 60,000,000 [8] for the destroyed house, to be revised to take account of any devaluation in the national currency. The court rejected their claim in respect of their destroyed belongings on the ground that the losses had not been substantiated. It also rejected as unsubstantiated the claim for the reimbursement of the money spent on the burial of the victims. (g) Floarea Maria Zoltan, the widow of one of the victims who had died burned alive during the riots, also requested a maintenance allowance for her minor child. The court noted that although the applicant claimed that her husband used to be a manufacturer of woollen coats, she had not submitted any evidence as to his income, and therefore decided to take the statutory minimum wage as the basis for the calculation of the allowance, namely, ROL 2,500,000 [9]. Moreover, it found that it was impossible to establish how much the applicant's husband used to spend on his child's maintenance, and applied the minimum granted by the Family Code, that is one quarter of the minimum wage, which amounted to ROL 625,000 [10]. Finally, the court took into account that the deceased victims had provoked the crimes committed and decided to halve the above-mentioned amount. It therefore awarded ROL 312,500 [11] per month in maintenance allowance for the applicant's minor child. Finally, the court rejected all the applicants' requests for non-pecuniary damages on the ground that they had not substantiated their claim, and that the crimes committed were not of a nature to produce moral damage. 77. On appeal by the persons convicted and the applicants, the Târgu-Mureş Court of Appeal gave judgment on 24 February 2004. The court recalled that, under the combined provisions of the Civil Code and the Codes of Criminal and Civil Procedure, it was bound by the ruling of the criminal court. Referring to recent publications by Romanian authors in the field of civil law and the Court's case of Akdivar v. Turkey (judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV), the court found that, “By their behaviour, the accused infringed the property rights of the complainants, for which pecuniary damages had already been awarded; however, some of the civil parties should also be awarded damages from a moral point of view. Some of the civil parties were deprived emotionally, as a result of the damage sustained, of the security which they had felt in the destroyed houses, of the comfort they had enjoyed as a result of the facilities of the houses, all these movable and immovable goods being the result of their work, which guaranteed them a normal standard of living, having regard to their personalities ... As shown above, the accused committed the crimes in a state of provocation, which led the court to apply the provisions of Article 73 of the Criminal Code [regarding extenuating circumstances]. For this precise reason, the civil parties enumerated below are entitled to a certain amount of damages, but not the amount requested...” The court awarded the following amounts: ROL 100,000,000 [12] to Floarea Maria Zoltan as it found that she had had to leave the village and wander homeless in the country and abroad; ROL 50,000,000 [13] to Iulius Moldovan as he had been profoundly affected by the events, had lost his fortune and his health had deteriorated substantially; ROL 30,000,000 [14] to Otilia Rostaş as she had suffered psychological and emotional trauma for the same reasons; ROL 20,000,000 [15] to Melenuţa Moldovan for the same reasons as Otilia Rostaş; ROL 15,000,000 [16] to Maria Moldovan for the psychological trauma suffered as a result of the partial destruction of her house; and ROL 70,000,000 [17] to Petru (Dîgăla) Lăcătuş since he had sustained deep emotional damage and felt insecure as a result of the burning of his parents' house. No award was made in respect of Petru (Gruia) Lăcătuş. 78. The civil parties filed an appeal against this judgment, which was rejected by a final decision of the Court of Cassation, on 25 February 2005. | In September 1993 three Roma men were attacked in the village of Hădăreni by a large crowd of non-Roma villagers, including the local police commander and several officers: one burnt to death, the other two were beaten to death by the crowd. The applicants alleged that the police then encouraged the crowd to destroy other Roma properties: in total 13 Roma houses in the village were completely destroyed. Hounded from their village and homes, the applicants were then obliged to live in crowded and unsuitable conditions – cellars, hen-houses, stables. Following criminal complaints brought by the applicants, some were awarded damages ten years later. |
779 | Medical negligence and liability of health professionals | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1996, 1973 and 1961, respectively, and live in Izmir. A. Infection of the first applicant with the HIV virus 6. The first applicant was born prematurely on 6 May 1996 at the Dr Behçet Uz Children's Hospital in Izmir. 7. On 7 May 1996 he was diagnosed with an “inguinal and umbilical hernia” by doctors working in the same hospital. 8. On an unspecified date in May or June 1996, the third applicant, who is the first applicant's father, purchased a unit of red blood cells and a unit of plasma from the Izmir Directorate of the Kızılay (the Turkish Red Cross, hereinafter “ the Kızılay ”). A number of blood and plasma transfusions were carried out on 19 May 1996, 24 May 1996, 26 May 1996, 29 May 1996 and 6 and 7 June 1996. The first applicant was discharged from the hospital on 17 June 1996. 9. Approximately four months after the blood transfusion, the second and third applicants learned that the first applicant had been infected with the HIV virus which could develop into the more severe Acquired Immune Deficiency Syndrome (AIDS). 10. According to the information given by the Government, on 31 October 1996 a donor (no. 1294, code MUALAB-43) donated blood to the Kızılay. Subsequent to screening and tests carried out on the donated blood (serial no. 210619), HIV was found and the blood in question was destroyed. Following two more tests, it became certain that donor no. 1294 had been infected with HIV. The authorities conducted an investigation with a view to determining whether donor no. 1294 had donated blood previously. It appeared that the unit of plasma (serial no. 202367) used for the first applicant's treatment had been given by donor no. 1294. The first applicant was admitted to the Hacettepe University Hospital for treatment. The costs of treatment were paid by the Izmir Social Solidarity and Mutual ‑ Aid Foundation. B. Criminal Proceedings 1. Proceedings against the Kızılay 11. On 7 May 1997 the applicants filed a complaint with the Public Prosecutor's office in Izmir. They claimed that the Kızılay had provided contaminated blood and the Ministry of Health had been negligent in conducting the requisite screening and testing in accordance with the relevant domestic legislation. They requested that criminal proceedings be initiated against the doctors and laboratory personnel involved in the transfusion process, as well as against the Director of the Izmir Health Department ( İzmir İl Sağlık Müdürü ) and the Director of the Kızılay Izmir Branch. 12. On 2 October 1997 the Audit Department of the Ministry of Health prepared a report in which it stated that the unit of plasma used for the first applicant's treatment had been screened and tested for the HIV virus. However at that stage the HIV antibodies had not yet been produced in the unit of plasma donated by donor no. 1294. The report further noted that all around the world the HIV infection had been screened by Anti-HIV (ELISA) tests on the recommendation of the World Health Organisation. Therefore, it had been scientifically impossible to diagnose the HIV contained in the unit of plasma in question by the routine tests. Thus, relying on the statements given by health personnel and expert reports, the report concluded that there was no negligence attributable to the health personnel involved in the incident or to any other authority. 13. Notwithstanding, the Audit Department advised that (1) a circular be issued to relevant departments; (2) the health personnel be reminded to ensure that questionnaires were properly filled in by blood donors; (3) questions be asked about the sexual history of the donors and (4) donations be refused in doubtful cases. The Audit Department added that health personnel's attention should be drawn to the need to wait for a sufficient period of time before delivering blood in case antibodies had not yet been produced. In this connection, on 3 January 1998 circular no. 141 and its attachments were communicated to all blood centres and stations in order to prevent infections resulting from blood transfusions. 14. On 2 July 1998 the Izmir Administrative Council decided that no investigation could be conducted into the doctors who had been involved in the blood transfusion process on the ground that the children's hospital where the transfusions had taken place was not equipped with facilities for the ELISA test. Therefore the doctors had not been at fault in the incident. 2. Proceedings against the Ministry of Health 15. On 7 May 1997 the applicants filed a complaint with the Public Prosecutor's office in Izmir, this time against the Minister of Health and the Director General of the Kızılay. 16. On 23 May 1997 the Public Prosecutor issued a decision of non ‑ prosecution. He reasoned that an investigation into the actions of a minister could only be conducted in accordance with Article 100 of the Turkish Constitution, which requires a motion to be brought in parliament. Therefore the Public Prosecutor concluded that he lacked jurisdiction ratione materiae and ratione personae in this matter. As regards the Director General of the Kızılay, the Public Prosecutor noted that he was in Ankara whereas the incident had taken place in Izmir and that there was no fault directly attributable to him, bearing in mind particularly that he had not been involved in selling the infected blood. 17. On 8 September 1997 the applicants filed an objection with the Kırıkkale Assize Court against the Public Prosecutor's decision. 18. On 14 October 1997 the Kırıkkale Assize Court dismissed the applicants'objection for non-compliance with the fifteen - day statutory time-limit to lodge their objection. C. Civil proceedings 19. On 19 December 1997 the applicants initiated compensation proceedings against the Kızılay and the Ministry of Health. They requested non-pecuniary damage for the infection of the first applicant with HIV as a result of medical negligence on the part of the defendants. 20. On 13 July 1998 the Ankara Civil Court of First Instance issued a decision of non-jurisdiction in respect of the case brought against the Ministry of Health. It stated that these complaints must be brought before the competent administrative tribunal. 21. As regards the case instituted against the Kızılay, the court held that it was strictly liable for the incident as it had been established through a witness statement that the test which gave clear results on the presence of the HIV virus could not be carried out due to its high costs and that the health questionnaire system had not been in full practice at the time of the incident (see paragraph 13 above). It thus awarded the applicants 30,000,000,000 Turkish lira (TRL) plus interest at the statutory rate running from 17 June 1996, the date of the incident. The court held, in particular: “ ... As briefly mentioned above, Yiğit Turhan Oyal suffers from AIDS after receiving HIV virus infected blood supplied by the Izmir the Kızılay District Office. The Kızılay District Office is at fault for the infection of the child. This appeared from the sworn statements given on 8 June 1998 by Prof. Dr. Hakkı Bahar, who works at the Dokuz Eylül University School of Medicine, Department of Biology and Clinical Microbiology. Hakkı Bahar, who is a specialist on this subject, is the only witness of the Red Crescent Directorate General and holds an academic title of “professor”. In his statements, he submitted that AIDS was a disease which could be detected with certainty by a special test but that, because it was very expensive, it was not employed. Bearing in mind that it was possible to detect HIV with sufficient certainty and that the Kızılay did not employ the test in question, because it was costly, then it should be held responsible for the infection of [the child]. The Kızılay has to bear the consequences of this [negligence]. It cannot escape this [responsibility]. Either it has to employ the test which determines with certainty AIDS, or it fails to do the test and assumes responsibility for providing blood which was infected with AIDS. Moreover, the Kızılay is at fault for the following reason: As is clear from the statements of the doctors indicated by the Red Crescent and, following the contamination of the plaintiffs'child, the Ministry of Health issued a circular on 3 January 1997 and required the questioning of donors. It thus follows that this circular had to be issued because no such questioning took place at all previously or was not done properly. Even assuming for a moment that the the Kızılay was not at fault in this incident, it still has strict liability ( kusursuz sorumluluk ). This is the very requirement of justice. Yiğit Turhan Oyal was infected with HIV at a very young age because of the blood given by the the Kızılay. He caught AIDS, which is, together with cancer, one of the most dangerous diseases of our age. It is unnecessary to explain how evil and fatal this disease is. It is highly unlikely that little Yiğit will survive this disease; most probably he will lose his life. Even if he survives, he will live with this disease throughout his lifetime and everybody will avoid him. Strictly speaking, by having been infected with this disease, Yiğit has become a social outcast. He should not have sexual intercourse and should not get married during his lifetime. It is impossible for a living person to endure this. Furthermore, Yiğit should be taken care of very well. It is impossible to put into words how father Nazif Oyal and mother Neşe Oyal suffer from sorrow because of Yiğit's infection with this disease. In view of the foregoing, the court considers that the award of TRL 10,000,000,000 for each plaintiff in respect of non-pecuniary damages appears to be low. In fact, the sorrow and pain suffered by the plaintiffs cannot be compensated even if quadrillions were awarded. As noted above, the amount of compensation awarded is an insignificant one and merely aims at lessening their pain to some extent. Having regard to the fact that today compensation of three to five billion Turkish liras is awarded in a defamation case and that the amount in question would not even suffice to buy a car by the current prices of the day, it is obvious that the increase of awards is inevitable. It is considered that today is the time to increase compensation to a satisfactory level. For this reason, the determination of the amount in this case, albeit insignificant, was in line with this view. Notwithstanding the above, I should like to stress the following: the fact that an aid organisation like the Kızılay ... chose to pursue all avenues with full strength in order to avoid compensating Yiğit, instead of redressing his suffering, is thought provoking ... ” 22. On 9 February 1999 the Court of Cassation upheld the judgment and stated the following: “ ... The case concerns the payment of damages incurred as a result of the tortious act of the defendant. In order to hold the defendant liable for the alleged act, it should be established that the defendant was at fault, that the plaintiff incurred damage as a result of the tortious act and that there was a causal link between the act and the damage suffered. There is no dispute between the parties that the damage in question occurred as a result of the blood used by [Yiğit] and that such an act is unlawful. Again, it is also undisputed that the plaintiffs purchased the blood, which was used for the treatment of Yiğit, from the the Kızılay Izmir District office and that the blood was infected HIV positive. The focal point of the dispute is whether the Kızılay Directorate General is at fault ... It is a known fact that a foundation such as the Kızılay has a noteworthy prominence in meeting the need for blood and is worthy of credence on account of this vocation. In other words, there is an assumption that the blood obtained from the defendant meets expectations. However, it appeared that the blood obtained and used [in the present case] was unclean and so malignant that there was no possibility of purifying it. The fact that the [donor] was the bearer of the known virus cannot absolve the defendant from liability. The defendant should have subjected such an important and vital substance to all necessary tests and screening using the necessary technology in accordance with the purpose of its use and the importance of that substance. Nevertheless it appears that the blood in question was not subjected to the requisite tests available in today's technology. Furthermore, bearing in mind the particular circumstances of the case, witness statements have no bearing on the establishment of the lack of fault on the part of the defendant. In other words, it cannot be concluded by witness statements that the defendant was not at fault. In the instant case, it was not alleged that the defendant acted deliberately. Nor was it implied. The defendant did not wish such an outcome in the present case. However, the defendant did not display due attention and diligence in order to avoid the impugned result. Turning to the defendant's contention that the amount awarded in respect of non ‑ pecuniary damage was excessive, ... [I]t should be noted that the present and future life of the child, his mother and father have become dramatically insufferable. All segments of society will now avoid having any kind of social or physical contact with these people. Thus, it is apparent that the physical, social and personal values of all the plaintiffs, especially those of the child, shall be under attack during their lives. Having regard to the foregoing and particularly to the rule under Article 49 of the Code of Obligations which stipulates'... parties'social and economic conditions should also be taken into account ...', as well as to the current purchase value of money, the court concludes that the amount awarded in respect of non-pecuniary damage was not excessive. In this connection, when determining an amount for non-pecuniary damage, the amount in question should be satisfactory for the suffering party and should have a dissuasive effect for the harming party. Therefore, the defendant's objections on this part of the case must be dismissed ... ” 23. On 24 February 1999 the Kızılay paid a total amount of TRL 54,930,703,000 to the applicants, to cover the non ‑ pecuniary damage awarded by the court and the statutory interest applied to that sum. D. Administrative proceedings 24. On 13 October 1998 the applicants initiated proceedings against the Ministry of Health, requesting non-pecuniary damage. 25. On 20 November 1998 the Izmir Administrative Court rejected the case on the ground that the judgment of the Izmir First Instance Court which had issued a non-jurisdiction decision in respect of the proceedings concerning the Ministry of Health had been pending before the Court of Cassation. On 8 February 1999 the applicants appealed against this decision. 26. On 7 May 2001 the Supreme Administrative Court quashed the decision and remitted the case to the Izmir Administrative Court for examination on the ground that the proceedings concerning the Ministry of Health must have been considered to have become final, given that the Ministry of Health had not appealed against the Izmir First Instance Court's judgment. 27. On 14 July 2003 the Izmir Administrative Court refused the applicants'compensation claims. Referring to the Izmir First Instance Court's judgment, the Izmir Administrative Court reiterated that the Kızılay and the Ministry of Health were both liable for the first applicant's HIV infection. The court added, however, that the purpose of awarding non ‑ pecuniary damage was not to provide full restitution and the award of non-pecuniary damage twice for the same incident would have resulted in unjust enrichment. 28. On 3 October 2003 the applicants appealed. 29. On 31 March 2006 the Supreme Administrative Court quashed the judgment of 14 July 2003, holding that there was no provision in domestic law which could have prevented the administration from being held liable jointly with other real or corporate bodies. 30. On 13 March 2007 the Supreme Administrative Court dismissed the Ministry of Health's rectification request against the above decision. 31. In a judgment dated 7 June 2007, the Izmir Administrative Court held that the Ministry of Health personnel had been negligent in the performance of their duties. The court thus awarded the applicants TRL 30,000 plus interest at the statutory rate running from the date on which the proceedings had been initiated, namely 19 December 1997. Both the applicants and the Ministry of Health appealed against the judgment. The applicants challenged the failure of the court to order the defendant to pay the legal fees, whereas the Ministry of Health challenged the outcome of the case. 32. On 26 December 2007 the Supreme Administrative Court dismissed the Ministry of Interior's appeal but partly quashed the judgment insofar as it concerned the fees. The parties did not inform the Court about the outcome of these proceedings. 33. On 30 April 2008 the Ministry of Health paid 159,369.49 New Turkish Liras to the applicants. E. Award of a scholarship 34. On 16 February 2005 the newly appointed Administrative Board of the Kızılay presented their apologies to the applicants and decided to give a scholarship to the first applicant in order to contribute towards his educational costs. A delegation of board members visited the applicants and told them that the medical expenses of the first applicant would also be paid by the Kızılay. F. Current condition of the first applicant and his family 35. According to the information given by the applicants, the Kızılay rejected the applicants'claim for treatment and medical costs which amounted to TRL 3,000 (approximately EUR 1,340) and EUR 5,469, respectively, per month. The Ministry of Health also rejected their request for payment of these expenses. 36. The green card [1] issued by the Governorship of Izmir was cancelled right after the announcement of the judgments ordering the administration to pay compensation to the applicants. 37. The compensation awarded by the civil and administrative courts covered only one year's medical treatment expenses and did not suffice to pay the costs of medication used by the first applicant. 38. The first applicant was not admitted to any school because of his condition and reactions from families of other pupils. He thus started his education at a hospital. Following public pressure and negotiations with the National Education Directorate, he was ultimately admitted to a public school. Yet he has no close friends and suffers from stammering. Every week he sees a psychologist. Upon the latter's advice, he attends drama and painting courses. 39. The third applicant's (the father) health has been severely affected as a result of reactions from parents of other children and the school administration's refusal to admit his son to school. Currently he is unable to work and provide any income for the family. 40. The family is in serious economic difficulty and is trying to pay the first applicant's medical expenses with the help of family friends. Meanwhile, although some health associations offered help, they wanted to test some medications on the first applicant, which the family refused. III. COUNCIL OF EUROPE 48. Between 1980 and 1988, the Committee of Ministers of the Council of Europe adopted a number of recommendations aimed at ensuring the adoption of common rules in the health field. In the below-mentioned Recommendations, the Committee of Ministers drew Member States'attention to the growing importance of a new and severe health hazard, namely AIDS, which was caused by an infectious agent transmissible by blood and blood products, and invited them to adopt a number of measures to prevent the spread of this infectious disease. These Recommendations were as follows : – Recommendation No. R (80) 5, dated 30 April 1980, on blood products for the treatment of haemophiliacs; – Recommendation No. R (81) 14, dated 11 September 1981, on preventing the transmission of infectious diseases in the international transfer of blood, its components and derivatives; – Recommendation No. R (84) 6 on the prevention of the transmission of malaria by blood transfusion; – Recommendation No. R (83) on preventing the possible transmission of AIDS from affected blood donors to patients receiving blood and blood products; – Recommendation 985 (1984) on the supply and utilisation of human blood and blood products; and – Recommendation No. R (85) 12 on the screening of blood donors for the presence of AIDS Markers. | This case concerned the failure to provide a patient, infected with HIV virus by blood transfusions at birth, with full and free medical cover for life. He and his parents alleged in particular that the national authorities had been responsible for his life-threatening condition as they had failed to sufficiently train, supervise and inspect the work of the medical staff involved in his blood transfusions. |
542 | Violent acts by private individuals | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1963 and lives in Zagreb. 7. On 29 April 1999 between 8 and 8.30 p.m. the applicant, together with several other individuals, was collecting scrap metal in Harambašićeva Street in Zagreb. 8. Suddenly, two unidentified men approached the group and attacked the applicant. They beat him all over his body with wooden planks, shouting racial abuse. Another two unidentified men, apparently members of the same group, stood close by and kept watch. 9. Shortly afterwards, following a report by an unknown person about the ongoing fight, a police patrol was sent to the scene. The police interviewed the persons on the spot and went up and down the nearby streets attempting to find the attackers. 10. An ambulance arrived and took the applicant to a nearby hospital. The doctors concluded that no bones had been broken, provided the applicant with painkillers and sent him home to rest. 11. During the night the applicant experienced severe pain and the next day he went to another hospital where he was examined again. It was found that as a result of the assault he had sustained multiple rib fractures, in particular of the ninth, tenth and eleventh left ribs. He was kept in hospital for further treatment and discharged a week later, on 5 May 1999. 12. According to the applicant, since 1 June 1999 he has been having psychiatric treatment as a result of the incident, he had attended the Zagreb Psychiatric Clinic on at least eighteen occasions, and he had been diagnosed with post-traumatic stress disorder characterised by depression, anxiety, panic attacks, fears for his own safety and that of his family, intermittent insomnia and nightmares and, in general, an emotional breakdown. 13. On 15 July 1999 the applicant's lawyer lodged a criminal complaint with the Zagreb Municipal State Attorney's Office ( Općinsko državno odvjetništvo u Zagrebu “the State Attorney's Office”) against persons unknown. She gave a factual account of the incident and alleged that the applicant had been seriously injured. The applicant offered his own testimony in evidence and proposed that three eyewitnesses be heard. The applicant requested the State Attorney's Office to investigate the incident, identify the perpetrators and institute criminal proceedings against them. 14. On the same day the applicant's lawyer sent a letter to the Zagreb Police Department ( Policijska uprava Zagrebačka “the police”) in which she informed the police of the incident and requested the information necessary for the institution of criminal proceedings. She repeated her request on 30 August 1999. 15. On 31 August 1999 the police informed the applicant's lawyer that the perpetrators had not been identified. 16. On 2 September 1999 the applicant's lawyer wrote to the Minister of the Interior ( ministar unutarnjih poslova ) informing him of the incident and stating that the police had not identified the perpetrators. She requested decisive police action, relying on the relevant domestic and international human rights standards. 17. On 29 September 1999 the police interviewed the applicant about the events of the evening of 29 April 1999. The applicant described the two attackers vaguely, stating that due to his short-sightedness he was not likely to be able to recognise them. 18. On the same date, the police interviewed B. T., who had been with the applicant on the date in question. He also described the attackers, stating that he had not seen their faces clearly because he had been hiding from them during the attack. 19. Five days later, the police interviewed N. C., who lives in the area where the attack had taken place and who had witnessed the incident. He described the attackers, stating that as everything had happened very fast, he had not been able to see them clearly. 20. On 7 October 1999 the police interviewed Z. B., another eyewitness to the incident, who gave a similar statement. 21. In January 2000 the applicant's lawyer asked the State Attorney's Office twice what steps had been taken to identify and prosecute the perpetrators, at the same time complaining that the investigation ws inadequate. 22. On 10 February 2000 the State Attorney's Office informed the applicant's lawyer that they had urged the police to speed up the investigation. 23. On 21 February 2000 the State Attorney's Office informed the applicant's lawyer that the police had carried out an on-the-spot investigation immediately after having been informed of the incident, that they had interviewed the applicant and several other witnesses and had searched the area but had not identified any person fitting the description of the perpetrators. 24. On 16 March 2000 the applicant's lawyer informed the State Attorney's Office that the individuals who had attacked the applicant had apparently been engaged in numerous attacks against Roma persons in Zagreb in the same period. Two of the Roma who had been attacked, I. S. and O. D., had told the applicant's lawyer that they would be able to identify the perpetrators and that O. D. had personally witnessed the attack on the applicant. Furthermore, the police had already identified and apprehended O. D.'s attackers. The lawyer stressed that all the incidents had been racially motivated, because the attackers had combined physical with racist verbal abuse. 25. On 16 June 2000 the State Attorney's Office informed the applicant's lawyer that the police had been unsuccessful in finding O. D. and that they had no record of any assault on him. 26. On 1 August 2000 O.D. was located and interviewed at the Beli Manastir Municipality State Attorney's Office.. He stated that he himself had been attacked by a certain S. sometime in January 2000 and that the same person had been one of the applicant's attackers. He remembered S. because he had a large scar on his face. 27. The police subsequently identified S. as an alcoholic well known to the local authorities for several criminal offences. However, the police eliminated him as a possible suspect because no other witness had identified him despite his very noticeable scar. Also, according to the information available to the authorities, S. did not belong to any skinhead group. Nothing in the police case file indicates that S. was summoned for questioning regarding the incident. 28. Meanwhile, on 24 May 2000 the applicant's lawyer wrote again to the State Attorney's Office stating that Croatian Radio Television (HRT) had broadcast a report on 14 May 2000 in which a young skinhead had been interviewed about his reasons for engaging in attacks on the Roma population in Zagreb. She claimed that the person interviewed had alluded to the incident of 29 April 1999 involving the applicant. 29. The State Attorney's Office requested the editor of HRT to give them the necessary information in order to identify the person interviewed. 30. On 18 April 2001 the police interviewed the journalist who did the interview. The journalist stated that the skinhead he had interviewed had talked generally about his hatred of the Roma population, but that he had not specifically addressed the incident at issue. The interviewee lived in the part of town where the attack took place and had described how annoying he found it when Roma came to his neighbourhood to collect scrap metal. However, the journalist did not wish to disclose the name of the person interviewed, relying on his right to protect the source of his information. 31. Meanwhile, on 14 February 2001 the applicant's lawyer complained again to the State Attorney's Office and to the Minister of the Interior of the poor quality and unacceptable duration of the investigation. She requested an update and complained that there appeared to be no real effort on the part of the relevant authorities to identify and apprehend the perpetrators. She also gave the prosecuting authorities some new information, namely that the persons who had attacked the applicant belonged to a skinhead group whose members were responsible for numerous attacks on the Roma population in Zagreb. She further described several recent attacks on the Roma population by skinheads and listed names and addresses of both victims of and witnesses to such attacks. 32. On 22 May 2001 the Ministry of the Interior informed the applicant's lawyer that the police had taken appropriate action on receipt of all the information provided by her. 33. On 6 April 2002 the applicant lodged a constitutional complaint with the Constitutional Court, requesting it to order the State Attorney's Office to take all necessary action to complete the investigation as soon as possible and within six months at the latest. 34. On 12 November 2002 the Constitutional Court informed the applicant's lawyer that it had no competence to rule on cases involving prosecutorial inaction during the pre-trial stage of proceedings and took no formal decision on the complaint. 35. The proceedings are still pending at the pre-trial stage. | The applicant, of Roma origin, was attacked by two unidentified men when collecting scrap metal in April 1999. They beat him with wooden planks and shouted racial abuse while two other men kept watch. Shortly afterwards the police arrived, interviewed people at the scene and made an unsuccessful search for the attackers. The applicant alleged, in particular, that the domestic authorities failed to undertake a serious and thorough investigation into the racist attack and that he suffered discrimination on the basis of his Roma origin. |
92 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE The applicants, husband and wife, were born in 1963 and 1949 respectively and live in Vesce. They have five children, born in 1985, 1988, 1995, 1997 and 2000. On 25 September 2000, the District Court (Okresní soud), Tábor, in receipt of an application originating from the Department of Social Welfare of the Tábor District Office (hereinafter referred to as “ the competent social authority ”), issued a supervision order for the children of the applicants, for lack of adequate housing. Admitting that the parents were making efforts to resolve this issue, the court noted that a fast solution was compromised by their lack of resources. The purpose of the supervision order was therefore to ensure that the children would quickly benefit from adequate accommodation, failing which, according to the court, another measure of assistance would have to be considered. On 15 November 2000, the competent social authority asked the court to adopt an interim measure ordering the placement of the children in an educational care establishment. It stated in support of this request that since 1997 the family did not benefit from adequate and stable housing, that the parents had not been able to find a solution and that they avoided the checks resulting from the supervision order. On the same day, this request was granted by the court which decided to provisionally place the three eldest children in an establishment at V. and two other children in that of K. Issued under Article 76a of the Code of Civil Procedure, the measure was aimed at ensuring the proper development and health of the children. On 29 December 2000 the regional court ( Krajský soud ) dismissed as belated the applicant ’ s appeal against the provisional measure of 15 November 2000. On 2 February 2001, the district court, on its own motion, initiated proceedings for the custody of the five children. By judgment of 1 March 2001, the court decided to place the children in an educational care establishment, considering that the education provided by the applicants was lacking because they were not able to provide to their children with adequate and suitable housing from a hygiene and health perspective. He informed the interested parties of the possibility of requesting the annulment of this measure as soon as circumstances change. On 26 July 2001, this judgment was voided by the Regional Court, which requested the Court of First Instance to supplement the evidence concerning the need for such an placement. According to the information provided by the Government, the District Court declared the proceedings to have been discontinued on 1 November 2001 on the ground that the applicant had submitted a lease agreement for an appropriate apartment. This decision was annulled by the Regional Court on 30 January 2002; the latter noted that both parents were unemployed and that it was not certain that the said fixed-term lease (until February 2002) would be renewed. On 21 March 2002, the District Court, hearing the request of the competent social authority, decided that the applicants ’ consent was not required for the adoption of their two younger children. It considered that, in accordance with Article 68 § a) of the Family Law, the interested parties had not shown any real interest in their children for at least six months. In particular, they did not send them gifts, did not discharge their maintenance obligations and did not attempt to obtain adequate housing; the applicant ’ s only visit to the K. establishment failed because of a quarantine. On 18 April 2002 the District Court again decided, under Article 46 § 1 of the Family Law, to entrust the care of the five children of the applicants to an educational care establishment. It noted that the lease contract entered into by the applicant (see paragraph 14 above) had not been renewed because the persons concerned had not paid rent and expenses and had only applied once to the municipality of Tábor to provide them with an apartment. Moreover, the first applicant did not have a stable job and the unemployed applicant was only mentioned on the list of persons seeking employment since February 2001 and had not yet made all the necessary steps to obtain social benefits. Since they had not made sufficient efforts to overcome their material difficulties and to find accommodation for the family, the court held that, for subjective reasons, the applicants were not able to assume the education of their minor children. He further noted that the persons concerned did not show an interest in their children, that they had not visited them since April and December 2001 and that there was no written or telephone contact between them. On 26 June 2002, the District Office granted, in respect of the three eldest children, at the request of the applicants to receive them at home during part of the school holidays. Such a visit took place also at Christmas 2002. On 22 August 2002, the Regional Court, hearing the appeal brought by the applicants, upheld the judgment of 18 April 2002. Without claiming that the placement of the children in educational care establishments was the ideal solution and admitting that such a measure constituted a considerable interference with the rights of the parents and the children, the court noted that the material needs of the children were provided for, particularly since the parents remained negligent in performing their parental obligations. The court also noted that in accordance with the principle underlying Article 46 § 2 of the Family Law, placement in a public establishment may only be considered when it was not possible to leave children in a family environment. However, it was established in this case that the children ’ s maternal grandmother was not able to care for them and that he there was no other person willing to provide their education. Lastly, the court stated that if the parents were to make genuine efforts to create appropriate living conditions and a stable family environment, there would be no obstacle to putting an end to the placement of the three older children in the future. On the same day, the Regional Court upheld the judgment of 21 March 2002 on consent to the adoption of the youngest children. On 20 November 2002 the applicants brought a constitutional appeal alleging that the decision to place their children in educational care establishments and the decision relating to consent to adoption did not comply with the law or Article 8 of the Convention or the Convention on the Rights of the Child. According to the applicants, these interferences were not necessary in a democratic society, as they do not satisfy the proportionality test, and the courts did not take due account of the opinion of the minors. The applicants argued that the placement of the children in public establishments was motivated solely by their material difficulties, without the authorities fulfilling their positive obligations, whether in terms of counselling or assistance and allowing them to improve their situation. According to them, it was only if such positive steps failed that the contested interference would satisfy the subsidiarity requirement. Although they admitted their share of responsibility, the applicants alleged that their financial difficulties were caused, inter alia, by the fact that the person who had bought their house stopped paying the agreed instalments and the accumulation of several negative circumstances. They also emphasized the right of children to enjoy the presence of their parents and drew attention to the risk of emotional deprivation. They further alleged that the unsatisfactory social and material situation of the children cannot be mended through the interference of public authorities in their right to respect for family life, which enjoys qualified protection. Lastly, the applicants argued that the conditions for overriding their consent to adoption had not been met in the present case. On 13 November 2003, the Constitutional Court (Ústavní soud) appointed a guardian for the minor children for the purposes of the proceedings before it, and suspended the enforceability of decisions relating to consent to adoption. By judgment of 28 January 2004, the Constitutional Court vacated the Regional Court ’ s judgment with respect to consent to adoption, on the ground that it had violated the rights of the applicants to a fair trial and to the respect of their family life. However, it rejected the challenge in the section relating to the placement of the children in public institutions. Noting that the applicants ’ situation had been carefully examined, the court considered that the contested interference by the State was the only possible solution and that it was in line with the law and with the children ’ s interests. The Court stressed that the responsibility for ensuring adequate life and development conditions for the children are primarily the responsibility of the parents, while the help of public institutions may only intervene when the family was temporarily confronted, through no fault of its own, with a difficult situation. Concerning the interview of the children whose age permitted it, the Court noted that the girl born in 1988 had been heard; the hearing of the applicants ’ son, born in 1985, failed because he had fled the institution at the time. In this decision, the court also found that the main problem underlying the entire proceedings was the lack of adequate housing for such a large family and the applicants ’ inability, particularly as a result of their poverty, to obtain such housing. As further problems appeared thereafter, it was difficult for the Constitutional Court to say whether the applicants were the irresponsible parents or whether they were unlucky and could not succeed, despite their efforts. On 29 March 2004, the M. spouses requested to be able to host, beforehand, the two younger children of the applicants. On April 27, 2004, their application was granted by the municipal office of Tábor. The applicants appealed and the appeal was dismissed on 22 June 2004. On 6 April 2004, the Regional Court, bound by the opinion of the Constitutional Court, rejected the request that the applicants ’ younger children be adopted without the consent of the applicants. In April 2004, the applicants were asked to pay their debts to the V. establishment, where all their children were ten placed (see paragraph 10 above). It seems that this debt was still not settled, which gave rise to criminal proceedings against the applicants. On 13 May 2004, the applicant [the mother] was informed by the competent local authority that her request to rent an apartment (in the context of a call for tenders) was late and could not therefore be taken into account. Upon the applicants ’ request, an investigation was carried out at their home by the assistants of a children ’ s aid association on 20 May 2004. They found that the persons concerned were living in unacceptable conditions and that they were irregularly applying for housing. It was also established that on 13 July 2000, after the birth of her last child, the applicant [the mother] had accepted temporary accommodation (for the month of July 2000) in a specialized structure, but that she did not have the means to pay the price (7,000 CZK [1] ). She was not informed of the possibility for the whole family to live in another, less expensive establishment run by the same association, and no such request had been made by the competent social authority. On 3 June 2004, the M. spouses applied to the District Court to host the two younger children. By decision of 14 June 2004, the two younger children were appointed a guardian. The applicants appealed, objecting to their children being placed in foster care. In January 2005, the applicants inquired about the possibility of hosting their children during the holidays. They were informed by the competent social authority that their visiting rights were not limited, that they had to agree with the M. spouses and cooperate with the competent body with respect to the two younger children, and that they were required to apply to the establishment concerned with respect to the other two children (the third had already reached majority ), in accordance with Article 30 of Law No 359/1999. In March 2005, it informed them that it was necessary to request the visits well in advance so that the competent local authorities could provide their opinion thereon. Subsequently, the competent social authority summoned the applicants to an interview and gave its consent to several stays of the older children (including during the weekends). By judgment of 31 January 2005, the District Court granted the request of the M. spouses dated 3 June 2004 and decided to entrust them with the care of the two younger children. The Court noted that the applicants had not duly concluded a lease contract for the flat they occupied and that their financial situation was still unsatisfactory because they did not have a stable job. The court also observed that the applicants had not visited their children in 2003 and 2004, had not inquired about their condition, and that it was in the interests of minors to grow in a family environment. The applicants appealed, alleging that they had already concluded a lease and that the father had found a job. On 24 March 2005, they asked to be given the younger children. On 6 May 2005, the contested decision was confirmed by the Regional Court. According to the Court, the applicants situation was not stable enough since the [father], who was hired since 10 March 2005, was still within his probationary period, since the lease contract had been concluded for a fixed period (with the possibility of renewal), and the applicant [the mother] was suffering from health problems. The court therefore considered that, despite their efforts, the applicants were not ready to take their children home. On 6 May 2005, the applicants requested the return of the two older children, noting that their week-ends spent together unfolded without any problem. At the same time, the director of the V. establishment informed the competent social authority that the applicant [the father] had acted vulgarly with him; and that therefore, he would no longer allow the older children to live with the family because he was convinced that such behaviour of the applicant had negative repercussions on their education. By judgment of 9 November 2005, the District Court cancelled the placement of the two eldest children (born in 1988 and 1995) in the educational care establishment and entrusted them to the applicants, under educational supervision. The court took into account the fact that the children were already spending every other weekend with their parents, in the absence of neglect or problems, and that they had themselves wished to return there. It was established that the applicants rented a three-room apartment since November 2004 under a six-month renewable lease, that the applicant [the father] had been working since March 2005 and that the applicant [ the mother] benefited from a disability pension. In these circumstances, the court found that the reasons that led to the placement measure were no longer pertinent. The competent social authority appealed against this judgment, noting in particular that the applicants did not have stable accommodation and that they had debts ( among others, to the V. establishment). The interested parties contested this. On 23 February 2006, the Regional Court upheld the contested judgment (while correcting a formal defect in its operative part). According to the court, it was clear from the record that the fundamental problem facing the parents in this case was to provide adequate housing for such a large family. The court noted that, despite their efforts to improve the situation, the applicants did not have, until then, stable housing, which was due to their financial difficulties as well as to a certain laxity. However, it was possible to conclude on the day the decision was rendered, that the applicants had done their utmost and that, having found adequate housing, they had satisfied the main condition of their children ’ s education. Moreover, it had not been established that the lease contract might not be renewed soon or that their debts would prevent the applicants from ensuring the education of their children. The court finally noted that, since the relationship between the employees of the V. establishment and the applicants was far from ideal and the children wanted to return home, the placement ceased to be a solution and became traumatic. This judgment acquired res judicata on 23 March 2006. It appears that the two older children are still in the care of a foster family. III. OTHER SOURCES Committee on the Rights of the Child established by Article 43 § 1 of the Convention on the Rights of the Child Observations on the report submitted by the Czech Republic pursuant to Article 44 of the Convention, dated 17 June 2002 (extract) “Children who require special protection and care, who were temporarily or permanently deprived of their family environment, or whom it was not possible to leave in their current environment in their best interests are recorded and monitored by childcare authorities at the appropriate District Offices and Municipal Offices. If all attempts at family therapy fail (material assistance, financial assistance, counselling), the childcare authority files an application with the court to issue a preliminary injunction or an application to order institutional care. In the experience of the NGOs, however, family therapy is often inadequate owing, on the one hand, to a lack of social workers and, on the other hand, to a lack of financial resources for the necessary material and financial assistance.” Concluding observations on the report submitted by the Czech Republic pursuant to Article 44 of the Convention, dated 18 March 2003 (excerpt from paragraphs 31-44) “While noting that the principle of the “interest and welfare” of the child is contained in the Act on the Family and in the Law on Social and Legal Protection of Children, the Committee is concerned that the principle of primary consideration for the best interests of the child is still not adequately defined and reflected in all legislation, court decisions and policies affecting children. Furthermore, the Committee is concerned that there is insufficient research and training for professionals in this respect. The Committee welcomes the information on the Policy Statement on measures to be taken relating to child and family welfare and on the preparation of a national programme of support to families with children. The Committee is concerned at the insufficient assistance and guidance given to parents in their child-rearing responsibilities for the upbringing and development of the child, resulting in numerous cases of custody procedures or in alternative care in institutions. The Committee is further concerned that preventive efforts and family counselling are inadequate and that placement in an institution may be a solution to social problems and crisis situations in the family. The Committee notes the adoption of the Act of Residential Care in 2002, but is concerned that it has not addressed the full range of rights covered by the Convention. (...) The Committee welcomes the policy of deinstitutionalization, but remains deeply concerned by the increasing number of children placed in institutions by preliminary injunction and at the frequent use of this special measure, which can be revoked only after a lengthy and complex procedure. Furthermore, the Committee is concerned that the general principles of the Convention are not always observed in such situations and that: (a) Institutional responses to providing assistance to children in difficulty are predominantly used and a disproportionately large number of children are placed in a residential institutional care environment; (b) Temporary measures may be extended for lengthy periods and that there are no regulations for review of placement; (c) Children are often placed at significant distances from parents, who, in turn, may not be aware of their visiting rights; punitive measures such as limitation of phone calls or meetings with parents may also be used; (d) Contacts with parents are sometimes made conditional upon the behaviour of children in care; (e) The conditions and treatment of children in some institutions may not be provided in a manner consistent with the evolving capacities of the child and the obligation to ensure his or her survival and development to the maximum extent possible; (f) Institutions are large and an individual approach to each child is lacking, child participation is minimal, and treatment in some institutions (such as diagnostic institutions) may have undesirable effects.” | The applicants complained that they had been separated from their five children, who had been placed in public care, because of the difficulties they had finding suitable accommodation for such a large family. They also complained about the lack of assistance on the part of the Czech authorities. |
773 | Disciplinary proceedings against health professionals | I. Circumstances of the case 7. Dr Marcel Diennet, a general practitioner living in Paris, was the object of proceedings for professional misconduct. 8. On 11 March 1984 the Regional Council of the Ile-de-France ordre des médecins (Medical Association) struck him off the register. Its reasons for doing so included the following: "... The statements made by the doctor against whom proceedings have been brought amply established the 'method of consultation by correspondence' introduced by him. Dr Diennet sent patients whom he could not, or did not wish to, see at his surgery a printed letter containing a proposal for a consultation by means of a detailed questionnaire to enable him to make out for each patient an appropriate prescription for a slimming course. ... By using this method, Dr Diennet never met his patients, did not personally make any examination of them and did not monitor or adjust the treatment prescribed. During his absences from France, which he admits were numerous, the patients were followed up by his secretarial staff, a fact which he does not deny. The conduct of which he stands accused is amply substantiated and seriously contravenes the provisions of Articles 15, 18, 23, 33 and 36 of the Code of Professional Conduct. Such conduct is unacceptable on the part of a doctor and bears no relation to the medical profession. These offences call for severe punishment. ..." 9. The applicant appealed to the disciplinary section of the National Council of the ordre des médecins, which on 30 January 1985 ordered that he should be disqualified from practising medicine for three years instead of being struck off. 10. On an application by Dr Diennet, the Conseil d'Etat quashed that decision on 15 January 1988 on the ground that there had been an irregularity in the proceedings which had led to it, as the disciplinary section of the National Council had ruled that pleadings filed by the doctor after the time-limit but before the hearing were inadmissible. The case was remitted to the disciplinary section. 11. On 26 April 1989, after a hearing in private, the disciplinary section of the National Council again disqualified the applicant from practising medicine for three years. 12. Dr Diennet appealed on points of law to the Conseil d'Etat. He argued, in particular, that the decision concerning him had not been reached in accordance with Article 6 para. 1 (art. 6-1) of the Convention, as three of the seven members of the disciplinary section of the National Council, including the rapporteur, had already heard the case on the occasion of the first decision - a circumstance that did not satisfy the impartiality requirement of Article 6 para. 1 (art. 6-1) - and the hearing on 26 April 1989 had not been held in public. 13. On 29 October 1990 the Conseil d'Etat dismissed the appeal in the following terms: "... As to the lawfulness of the impugned decision Firstly, the provisions of Article 6 para. 1 (art. 6-1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms are not applicable to disciplinary tribunals, which do not hear criminal proceedings and do not determine civil rights and obligations. Mr Diennet accordingly cannot challenge the decision appealed against on the grounds that it contravened the provisions of Article 6 para. 1 (art. 6-1) of the aforementioned Convention relating to the holding of hearings in public and the impartiality of tribunals. Secondly, although section 11 of the Law of 31 December 1987 provides that a tribunal to which a case has been remitted by the Conseil d'Etat must, unless the nature of the tribunal makes it impossible, be differently constituted from the one that gave the original decision, the disciplinary section of the ordre des médecins was, having regard to its nature, entitled, for the purpose of hearing the case remitted to it by the Conseil d'Etat acting in its judicial capacity in a decision of 15 January 1988, to be constituted again as it had been on 30 January 1985, when it had given its first ruling. The grounds of appeal based on an infringement of the principle of the impartiality of tribunals and on the statutory provisions previously cited must therefore fail. ..." II. The disciplinary rules governing the medical profession 14. It is compulsory for all doctors entitled to practise their profession in France to belong to the ordre national des médecins. This body ensures, among other things, that the principles of morality, probity and dedication essential to the practice of medicine are upheld and that all its members fulfil their professional duties and comply with the rules laid down in the Code of Professional Conduct. It discharges this function through département councils, regional councils and the National Council of the ordre (Articles 381 and 382 of the Public Health Code). A. Procedure 1. Before the professional disciplinary bodies (a) The regional councils 15. The regional councils exercise disciplinary jurisdiction at first instance within the ordre des médecins. Cases may be brought before them by the councils of the départements within their territorial jurisdiction and individual registered medical practitioners, among others (Article L. 417 of the Public Health Code). (b) The disciplinary section of the National Council 16. After each election of a proportion of its members (every two years) the National Council of the ordre des médecins elects eight of its thirty-eight members to constitute a disciplinary section - chaired by a senior member of the Conseil d'Etat - with jurisdiction to hear appeals (Articles L. 404 to 408 and L. 411 of the Public Health Code). Substitute members are elected in the same way as full members (Article 21 of Decree no. 48-1671 of 26 October 1948, as amended, concerning, inter alia, the functioning of the disciplinary section). The disciplinary section can only deliberate validly if, in addition to its chairman, at least four of its members are present. Where the number of members present is an even number, the youngest practitioner must withdraw (Article 24, first paragraph, of the Decree of 26 October 1948, as amended). Appeals have a suspensive effect (Article L. 411 of the Public Health Code). 2. In the Conseil d'Etat 17. An appeal on points of law against decisions of the disciplinary section lies to the Conseil d'Etat (Article 22 of the Decree of 26 October 1948, as amended, and Article L. 411 of the Public Health Code) "as provided in ordinary administrative law" (Article L. 411 in fine of the Public Heath Code). Section 11 - which came into force on 1 January 1989 - of Law no. 87-1127 of 31 December 1987 reforming administrative proceedings provides: "... If it quashes a decision by an administrative tribunal of last instance, the Conseil d'Etat may either remit the case to the same tribunal, which shall, unless the nature of the tribunal makes it impossible, be differently constituted, or remit the case to another tribunal of the same type, or determine the merits of the case itself where the interests of sound administration of justice warrant it. Where a second appeal on points of law is brought in a case, the Conseil d'Etat shall give a final ruling on it." B. Penalties 18. The following penalties may be imposed on doctors found guilty of disciplinary offences: a warning; a reprimand; temporary or permanent disqualification from performing some or all of the medical duties carried out for or remunerated by the State, départements, municipalities, public corporations or private corporations promoting the public interest, or the medical duties carried out pursuant to welfare legislation; temporary disqualification from practising medicine (for a maximum of three years); and striking off the register of the ordre. The first two penalties also entail loss of the right to be a member of a département council, a regional council or the National Council of the ordre for three years; the other penalties entail permanent loss of that right. A doctor who has been struck off cannot have his name entered in another register (Article L. 423 of the Public Health Code). C. Right of challenge 19. A doctor against whom proceedings are brought may exercise a right of challenge before a regional council or the National Council, as laid down in Articles 341 to 355 of the New Code of Civil Procedure (Article L. 421 of the Public Health Code). Article 341 of the New Code of Civil Procedure provides that a judge may be challenged: "... 1. if he or his spouse has a personal interest in the dispute; 2. if he or his spouse is a creditor, debtor, heir presumptive or donee of one of the parties; 3. if he or his spouse is a blood relative or a relative by marriage of one of the parties or of the spouse of one of the parties up to the fourth degree inclusive; 4. if there have been or are still legal proceedings pending between him or his spouse and one of the parties or the spouse of one of the parties; 5. if the case has earlier come before him as a judge or arbitrator or if he has advised one of the parties; 6. if the judge or his spouse is responsible for administering the property of one of the parties; 7. if there is a relationship of subordination between the judge or his spouse and one of the parties or the spouse of one of the parties; 8. if it is common knowledge that friendship or enmity subsists between the judge and one of the parties; ..." D. Holding of proceedings in public 1. The rules applicable to the instant case 20. Article 15, second paragraph, and Article 26, seventh paragraph, of Decree no. 48-1671 of 26 October 1948, as amended, provided: "Hearings shall not be held in public and the deliberations shall remain secret." The decisions of the disciplinary bodies of the ordre were recorded in a special register to which third parties did not have access and they were not published. They were notified to certain individuals and institutions only. 2. The present rules 21. Those rules were amended by Decree no. 93-181 of 5 February 1993. Hearings before a body of the ordre sitting to determine disciplinary charges are now held in public. However, the chairman of the body in question may, of his own motion or on an application by one of the parties or by the person whose complaint has led to the case being brought before a regional council, exclude the public from all or part of the hearing in the interests of public order or where respect for private life or medical confidentiality so justifies (Articles 13, 15 and 26 of the Decree of 26 October 1948, as amended by the Decree of 5 February 1993). Decisions are now made public, but the bodies in question may decide not to include in the certified copies any details - such as surnames - which might be incompatible with respect for private life or medical confidentiality (Articles 13 and 28 of the Decree of 26 October 1948, as amended by the Decree of 5 February 1993). | The applicant, a French doctor, was struck off the regional doctors’ register for reasons of professional misconduct after he admitted that he had been advising his patients, who wished to lose weight, from a distance. He never met his patients, did not monitor or adjust the treatment prescribed, and during his frequent absences they were advised by his secretarial staff. He complained that the professional disciplinary bodies deciding on his case had not been impartial and that the hearings before them had not been held in public. |
219 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1992 and lives in Novosibirsk. A. The applicant’s background and medical condition 10. At some point before September 2004, the applicant’s parents were deprived of their parental responsibility; the applicant was placed in a local orphanage until his grandfather was assigned as his guardian in October 2004 and the applicant was placed with him. On 28 February 2005 the grandfather’s guardianship was revoked, but he was reinstated as guardian at the beginning of 2006. 11. From 2002 to 2005, the applicant allegedly committed offences prohibited by the Criminal Code of the Russian Federation, including disorderly acts, aggravated robbery and extortion, alone or in a group of minors. Since he was under the age of criminal responsibility, no criminal proceedings were instituted against him but he was the subject of five pre-investigation inquiries and placed under the supervision of the Juveniles Inspectorate within the Department of the Interior of the Sovetskiy district of Novosibirsk (“the Juveniles Inspectorate”). Moreover, following the fourth inquiry, he was placed in a temporary detention centre for juvenile offenders on 21 September 2004 for thirty days. 12. According to the applicant’s medical records, he suffered from an attention deficit hyperactivity disorder ( a mental and neurobehavioural disorder characterised by either substantial attention difficulties or hyperactivity and impulsiveness, or a combination of the two – ADHD) and a neurogenic bladder causing enuresis ( a disorder involving urinary incontinence). 13. On 27 December 2004 and 19 January 2005 he was examined by a neurologist and a psychiatrist. He was prescribed medication, regular supervision by a neurologist and a psychiatrist and regular psychological counselling. B. The pre-investigation inquiry regarding the applicant 14. On 3 January 2005 the applicant, who at that time was 12 years old, was at the home of his nine-year old neighbour S. when the latter’s mother, Ms S., called the police, who came and took the applicant to the police station of the Sovetskiy district of Novosibirsk. He was not informed of the reasons for his arrest. 15. According to the applicant, he was put in a cell that had no windows and the lights in the cell were turned off. After he had spent around an hour in the dark, he was questioned by a police officer. The police officer told him that S. had accused him of extortion. He urged the applicant to confess, saying that, if he did so, he would be released immediately, whereas if he refused, he would be placed in custody. The applicant signed a confession statement. The police officer then immediately telephoned the applicant’s grandfather to tell him that the applicant was at the police station and could be taken home. When his grandfather arrived at the police station, the applicant retracted his confession and protested his innocence. 16. The Government disputed the applicant’s account of the events at the police station. They submitted that the applicant had been asked to give an “explanation” rather than being formally questioned, that he had been interviewed by a police officer who had pedagogical training, and that he had been apprised of his right to remain silent. He had not been subjected to any pressure or intimidation. His grandfather had been present during the interview. 17. On the same day, the applicant’s grandfather signed a written statement describing the applicant’s character and way of life. He stated that, two days earlier, he had seen the applicant in possession of some money. When asked where the money had come from, the applicant had said that his father had given it to him. 18. S. and his mother were also heard by the police regarding the incident; they claimed that on two occasions, on 27 December 2004 and 3 January 2005, the applicant had extorted 1,000 roubles (RUB) from S., threatening him with violence if he did not hand over the money. 19. On 12 January 2005 the Juveniles Inspectorate refused to institute criminal proceedings against the applicant. Relying on the applicant’s confession and the statements of S. and S.’s mother, it found it to be established that on 27 December 2004 and 3 January 2005 the applicant had extorted money from S. His actions therefore contained elements of the criminal offence of extortion, punishable under Article 163 of the Criminal Code. However, given that the applicant was below the statutory age of criminal responsibility, he could not be prosecuted for his actions. 20. On 3 February 2005 the applicant’s grandfather complained to the prosecutor’s office of the Sovetskiy district of Novosibirsk that the applicant, a minor suffering from a psychological disorder, had been intimidated and then questioned in the absence of his guardian and that his confession had been obtained under duress. The grandfather requested that the confession statement be declared inadmissible as evidence, and that the pre-investigation inquiry be closed on account of lack of evidence of an offence, rather than the applicant’s age. 21. On 8 June 2005 the prosecutor’s office of the Sovetskiy district of Novosibirsk quashed the decision of 12 January 2005, finding that the pre ‑ investigation inquiry had been incomplete. It ordered a further pre-investigation inquiry. 22. On 6 July 2005 the Juveniles Inspectorate again refused to institute criminal proceedings against the applicant, for the same reasons as before. 23. During the following months, the applicant’s grandfather lodged several complaints with prosecutors’ offices of various levels, asking for a fresh examination of the case against the applicant. He complained that the applicant’s confession had been obtained as a result of intimidation by the police; in particular, he had been placed in a dark cell for an hour and he had then been questioned by a police officer in the absence of a guardian, psychologist or teacher. The police officer had coerced the applicant into signing the confession statement without the benefit of legal advice. He had then issued a decision refusing to institute criminal proceedings on the ground that the applicant had not reached the statutory age of criminal responsibility, while stating at the same time that the applicant’s involvement in extortion had been established. 24. By letters of 4 August, 9 November and 16 December 2005, the prosecutor’s office of the Sovetskiy district of Novosibirsk and the prosecutor’s office of the Novosibirsk region replied that no criminal proceedings had been instituted against the applicant on the ground of his age. He therefore did not have the status of a suspect or a defendant. On 3 January 2005 he had been asked to give an “explanation” rather than been questioned by the police. In those circumstances the participation of a lawyer, psychologist or teacher had not been mandatory. There was no evidence that the applicant had been held in a dark cell before the interview, and he had had to wait no more than ten minutes for an officer from the Juveniles Inspectorate to arrive and interview him. That the applicant had committed extortion had been established on the basis of the statements of S. and S.’s mother and the applicant’s admission of guilt during the interview of 3 January 2005. C. The detention order 25. On 10 February 2005 the head of the Sovetskiy district Police Department of Novosibirsk asked the Sovetskiy District Court of Novosibirsk to order the applicant’s placement in a temporary detention centre for juvenile offenders. 26. On 21 February 2005 the Sovetskiy District Court held a hearing which the applicant and his grandfather attended and at which they submitted medical certificates confirming that the applicant suffered from a psychological disorder and enuresis. 27. On the same day, the court delivered its judgment in which it ordered the applicant’s placement in the temporary detention centre for juvenile offenders for thirty days. It held as follows. “The head of the Sovetskiy district Police Department of Novosibirsk has applied to the court with a request to place [the applicant], who has been registered with the [Juveniles] Inspectorate as a delinquent minor since 4 January 2002, in the temporary detention centre for juvenile offenders for thirty days. On 14 May 2003 [the applicant] committed an offence proscribed by Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. On 24 July 2003 [the applicant] again committed an offence proscribed by Article 213 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. On 27 August 2004 [the applicant] again committed a criminal offence under Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. [The applicant] was placed in the temporary detention centre for juvenile offenders for thirty days. The minor lives in unfavourable family conditions in which his grandfather is responsible for his upbringing in so far as possible; [the applicant’s] parents are alcoholics and have a negative influence on their son. Before [the grandfather] was given guardianship status, [the applicant] had lived in an orphanage and studied in school no. 61. At the material time he studied in school no. 163, often played truant from school, and stopped attending school entirely from December onwards. Given that the requisite control over him is absent, the minor spends the major part of his day on the streets, committing socially dangerous offences. On 27 December 2004 [the applicant] committed another offence proscribed by Article 163 of the Criminal Code of the Russian Federation; a criminal case was not opened because he had not reached the age of criminal responsibility. Taking the above-mentioned circumstances into account, [the head of the Police Department] considers it necessary to place [the applicant] in the temporary detention centre for juvenile offenders for a period of thirty days to prevent his further unlawful actions. The representative of the Juveniles Inspectorate supported the request made by the head of the Police Department and explained that [the applicant’s] guardian had requested in writing that his guardianship rights be lifted and the [Inspectorate] had accepted that request. [The applicant] refused to provide any explanations. The [applicant’s] representative [the grandfather] objected to [the applicant’s] placement in the temporary detention centre, having noted that [the applicant] had not committed a criminal offence on 27 December 2004 as he had been with [the grandfather] at a doctor’s surgery for an examination at that time. The lawyer, Ms [R.], asked the court to dismiss the request of the head of the Police Department. The prosecutor asked the court to accept the request and to place [the applicant] in the temporary detention centre for juvenile offenders, taking into account that the documents presented by [the applicant’s] guardian did not confirm that [the applicant] had been at a doctor’s surgery on 27 December 2004 at 1 p.m. or that he had been unable to commit the criminal offence, particularly taking into account the [applicant’s] personality and the fact that he had already committed a number of offences. Having heard the parties to the proceedings and examined the materials submitted by them, the court considers that the request must be allowed for the following reasons: [the applicant] is registered in the database of [the Juvenile Department of the police]; he was previously placed in the [temporary detention centre for juvenile offenders] for behaviour correction but did not draw the proper conclusions and committed further delinquent acts; the preventive measures put in place by the [Juveniles] Inspectorate and by the guardian have not produced results, which shows that [the applicant] has not learnt his lesson. [The applicant] must be placed in the [temporary detention centre for juvenile offenders] for thirty days for behaviour correction. The case-file materials examined by the court confirm that [the applicant] committed a socially dangerous offence: a complaint by Ms [S.] shows that on 27 December 2004, at approximately 1 p.m., [the applicant] extorted 1,000 roubles from her son [S.] in a yard; he accompanied those actions with threats of violence. On 3 January 2005 [the applicant] again came to their house and again extorted 1,000 roubles from her son, having again threatened the son with violence. Explanations by [S.] indicate that on 27 December 2004, at approximately 1 p.m., [the applicant] told [S.] to give him 1,000 roubles in a yard; he accompanied those actions with threats of violence and [S.] gave him the money. On 3 January 2005 [the applicant] again came to their house and requested 1,000 roubles from [S.], having again threatened him with violence. [S.] complained to his mother, who called the police. The court takes into account that those circumstances are corroborated by the statement made by [the applicant], who did not deny that he had received money from [S.] on 27 December 2004, as the latter had been afraid of the applicant. [The applicant] also did not deny that he had come to [S.’s] house on 3 January 2005. A criminal case in respect of the events on 27 December 2004 and 3 January 2005 was not opened as the applicant had not reached the age of criminal responsibility. Having taken these circumstances into account, the court finds unsubstantiated and far-fetched the explanations by the applicant’s guardian that [the applicant] did not commit the offences on 27 December 2004 and 3 January 2005. Having regard to the above-mentioned facts and ruling under section 22(2)(4) of the Minors Act, the court grants the request of the head of the Police Department and decides to place the applicant in the temporary detention centre for juvenile offenders for thirty days. ” D. Detention in the temporary detention centre for juvenile offenders 28. On 21 February 2005 the applicant was placed in the Novosibirsk temporary detention centre for juvenile offenders, where he remained until 23 March 2005. 1. The applicant’s description of the conditions of detention in the centre 29. According to the applicant, he had shared his bedroom in the centre with seven other inmates. The lights were kept on all night. 30. During the day inmates were forbidden to lie on their beds or to enter the bedroom. They had to spend the whole day in a large empty room which contained no furniture or sports equipment. On a few occasions they were given a chess set and other board games. They were allowed to go out into the yard only twice during the applicant’s thirty-day stay in the centre. 31. Inmates had classes twice a week for around three hours. They had mathematics and Russian grammar classes only. They were not taught any other courses from the officially-approved secondary-school curriculum. Around twenty children of different ages and school levels were taught together in one class. 32. The supervisors applied collective punishment to the inmates. If one of them committed a breach of the centre’s strict regime, all inmates were forced to stand in a line against the wall without moving, talking or being allowed to sit down. Given that many inmates were psychologically unstable and unruly, because of their socially disadvantaged background, such punishment was applied every day and often lasted for hours. 33. Inmates were not allowed to leave the room where they were assembled. They had to ask for the supervisor’s permission to go to the toilet, and were accompanied there in groups of three. They therefore had to wait until such a group was formed before being able to go to the toilet. Given that the applicant suffered from enuresis, the fact that he could not go to the toilet as often as he needed caused him bladder pain and psychological suffering. If his requests for permission to go to the toilet became too frequent, the supervisors punished him by making him do particularly arduous cleaning work. 34. Although the applicant’s grandfather had informed the staff of the centre of the applicant’s enuresis and his ADHD, the applicant did not receive any treatment. 2. The Government’s description of the conditions of detention 35. According to the Government, each bedroom in the temporary detention centre for juvenile offenders measured seventeen square metres and was equipped with four beds. Access to the bathrooms and toilets situated on each floor was not limited. 36. The centre had a dining room where meals were served five times a day. There was also a games room and a sports room. Audio and video equipment, educational games and works of fiction were available. 37. The supervisors carried out “preventive work” with each inmate of the centre and could apply incentive measures or punitive measures in the form of oral reprimands. Corporal punishment was not used; nor were juvenile inmates ever required to do hard or dirty work. 38. The centre’s medical unit had all the necessary equipment and medicine. It could be seen from the staff list of the centre submitted by the Government that the medical unit was staffed by a paediatrician, two nurses and a psychologist. According to the Government, each child was examined by the paediatrician on his admission and every day thereafter. Treatment was prescribed when necessary. It could be seen from the temporary detention centre’s “accounting and statistical record” concerning the applicant that he had not informed the doctor of his enuresis. 39. The applicant’s personal file, containing, in particular, the information on his medical condition on admission, the preventive work carried out and the punishments applied to him, had been destroyed on 17 January 2008 after the expiry of the statutory time-limit on storage, in accordance with Order no. 215 of the Ministry of the Interior of 2 April 2004 (see paragraph 73 below). However, the Government stated that the applicant’s “accounting and statistical record”, referred to above, had been retained since its storage period was unlimited in accordance with Order no. 215 (see paragraph 74 below). 40. According to the Government, the applicant’s other medical records and logbooks at the temporary detention centre had been destroyed as soon as they were no longer needed, without any records being compiled in this respect. This had been possible because there had been no regulations on storing such documents until Order no. 340 of the Ministry of the Interior had come into force on 12 May 2006 (which provided that medical records were to be stored for three years). 41. However, the Government submitted a written statement by a supervisor at the detention centre dated 23 December 2010. She confirmed the Government’s description of the conditions of detention in the centre. She also stated that one of the supervisors was always present in the room with the inmates, which ensured continuity of the educational process. Teachers from the neighbouring school regularly came to the centre so that the inmates could follow the secondary-school curriculum. After their release from the centre, they received an education progress record. She stated that she did not remember the applicant but asserted that she had not received any requests or complaints from him or from any other inmate. 42. The Government also submitted a copy of an agreement of 1 September 2004 between the detention centre and secondary school no. 15 whereby the school undertook to organise secondary-school courses in the centre in accordance with a curriculum developed by the centre. A copy of an undated two-week curriculum was produced by the Government. It included four classes per day on Tuesdays, Thursdays and Fridays. E. The applicant’s medical condition after release from the temporary detention centre for juvenile offenders 43. On 23 March 2005 the applicant was released from the detention centre. On the following day he was taken to hospital, where he received treatment for neurosis and ADHD. He remained at the hospital until at least 21 April 2005. 44. On 31 August 2005 the applicant was placed in an orphanage and, according to an extract from the applicant’s medical record drawn up at the orphanage, he was on the run between 14 September and 11 October 2005 and again between 13 and 23 October 2005. 45. On 1 November 2005 he was transferred to a children’s psychiatric hospital, where he remained until 27 December 2005. At some point after that, he was returned to his grandfather who had been reinstated as his guardian. 46. On 4 October 2005 the applicant’s grandfather complained to the Prosecutor General’s Office that the applicant, who suffered from a mental disorder, had not received any medical treatment in the temporary detention centre for juvenile offenders, which had caused a deterioration in his condition; nor had he been provided with any educational courses. He reiterated his complaints to the prosecution authorities in a letter dated 30 November 2005. The prosecutor’s office of the Sovetskiy district of Novosibirsk sent a reply to the applicant’s grandfather on 9 November 2005 and the prosecutor’s office of the Novosibirsk region sent a reply on 16 December 2005, however, both of these dealt exclusively with the procedural issues related to the applicant’s case (see paragraph 24 above) and did not contain any answer to the grandfather’s complaints in so far as they related to the applicant’s health and the conditions of detention. F. The applicant’s appeals against the detention order 47. Meanwhile, on 2 March 2005, the applicant’s grandfather appealed against the detention order of 21 February 2005. He submitted, firstly, that the detention was unlawful because the Minors Act did not permit detention for “behaviour correction”. Secondly, he complained that he had not been informed of the decision of 12 January 2005 refusing to institute criminal proceedings against the applicant and had therefore been deprived of an opportunity to appeal against it. He further submitted that the court’s finding that the applicant had committed an offence had been based on the statements of S. and his mother and the applicant’s confession statement. However, the applicant had made his confession statement in the absence of his guardian. Nor had a teacher been present. No teacher had been present during the questioning of S. either. Their statements were therefore inadmissible as evidence. Moreover, S. and his mother had not attended the court hearing and had not been heard by the court. Nor had the court verified the applicant’s alibi. Lastly, the applicant’s grandfather complained that the court had not taken into account the applicant’s frail health and had not verified whether his medical condition was compatible with detention. 48. On 21 March 2005 the Novosibirsk Regional Court quashed the detention order of 21 February 2005 on appeal. It found that behaviour correction was not among the grounds listed in section 22(2)(4) of the Minors Act for placing a minor in a temporary detention centre for juvenile offenders. Detention for behaviour correction therefore had no basis in domestic law. Moreover, the District Court had not stated reasons why it considered it necessary to detain the applicant. The mere fact that the applicant had committed an offence for which he was not liable to prosecution because of his age could not justify his detention. Such detention would be permissible only if one of the additional conditions listed in section 22(2)(4) of the Minors Act (see paragraph 66 below) was met. The Regional Court remitted the case to the District Court for fresh examination. 49. On 11 April 2005 the Sovetskiy District Court discontinued the proceedings because the head of the Sovetskiy district Police Department of Novosibirsk had withdrawn his request for the placement of the applicant in the temporary detention centre for juvenile offenders. The applicant and his grandfather were not informed of the date of the hearing. 50. On 22 March 2006 the applicant’s grandfather lodged an application for supervisory review of the decision of 11 April 2005. He complained that, as a result of the discontinuation of the proceedings, the applicant had been deprived of an opportunity to prove his innocence in respect of the offence for which he had already unlawfully served a term of detention in the temporary detention centre for juvenile offenders. 51. On 3 April 2006 the President of the Novosibirsk Regional Court quashed the decision of 11 April 2005. He found, firstly, that, in accordance with section 31.2(3) of the Minors Act, a judge examining a request for the placement of a minor in a temporary detention centre for juvenile offenders had the power either to grant or to reject the request. He had no power to discontinue the proceedings. Secondly, the applicant and his guardian had not been informed of the date of the hearing and had therefore been deprived of an opportunity to make submissions on the issue of the discontinuation of the proceedings. 52. On 17 April 2006 the Prosecutor of the Novosibirsk region lodged an application for supervisory review of the Regional Court’s decision of 21 March 2005. 53. On 12 May 2006 the Presidium of the Novosibirsk Regional Court quashed the decision of 21 March 2005, finding that it had been adopted by an unlawful composition of judges. It remitted the case for a fresh examination on appeal. 54. On 29 May 2006 the President of the Novosibirsk Regional Court held a fresh appeal hearing and upheld the decision of 21 February 2005 ordering the applicant’s placement in the temporary detention centre for juvenile offenders. He found that the applicant had committed a delinquent act punishable under Article 163 of the Criminal Code but that no criminal proceedings had been instituted against him because he had not reached the statutory age of criminal responsibility. He belonged to a “problem family”; his parents had been deprived of parental responsibility and he was cared for by his grandfather. He played truant from school and spent most of the time on the streets or in a computer club. In those circumstances, it had been necessary, in accordance with section 22(2)(4) of the Minors Act, to place him in the temporary detention centre for juvenile offenders for thirty days to prevent him from committing further delinquent acts. The fact that the District Court had referred to “behaviour correction” as a ground for detention had not made the detention order of 21 February 2005 unlawful. The applicant’s detention had been justified by other grounds. Nor could the detention order of 21 February 2005 be quashed on account of the applicant’s frail health, given that it had already been enforced in March 2005. III. Proceedings against minors 4. to ensuring that minors are tried more rapidly, avoiding undue delay, so as to ensure effective educational action; ... 8. to reinforcing the legal position of minors throughout the proceedings, including the police investigation, by recognising, inter alia : – the presumption of innocence; – the right to the assistance of a counsel who may, if necessary, be officially appointed and paid by the state; – the right to the presence of parents or of another legal representative who should be informed from the beginning of the proceedings; – the right of minors to call, interrogate and confront witnesses; ... – the right to appeal; – the right to apply for a review of the measures ordered; ...” 78. Recommendation Rec(2003)20 of the Committee of Ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, adopted on 24 September 2003, in so far as relevant, reads as follows. “15. Where juveniles are detained in police custody, account should be taken of their status as a minor, their age and their vulnerability and level of maturity. They should be promptly informed of their rights and safeguards in a manner that ensures their full understanding. While being questioned by the police they should, in principle, be accompanied by their parent/legal guardian or other appropriate adult. They should also have the right of access to a lawyer and a doctor. ...” 79. Recommendation CM/Rec(2008)11 on the European Rules for juvenile offenders subject to sanctions or measures, adopted by the Committee of Ministers on 5 November 2008, provides, inter alia, as follows. “ Part I – Basic principles, scope and definitions ... 2. The sanctions or measures that may be imposed on juveniles, as well as the manner of their implementation, shall be specified by law and based on the principles of social integration and education and of the prevention of re-offending. ... 5. The imposition and implementation of sanctions or measures shall be based on the best interests of the juvenile offenders, limited by the gravity of the offences committed (principle of proportionality) and take account of their age, physical and mental well-being, development, capacities and personal circumstances (principle of individualisation) as ascertained when necessary by psychological, psychiatric or social inquiry reports. ... 7. Sanctions or measures shall not humiliate or degrade the juveniles subject to them. 8. Sanctions or measures shall not be implemented in a manner that aggravates their afflictive character or poses an undue risk of physical or mental harm. ... 10. Deprivation of liberty of a juvenile shall be a measure of last resort and imposed and implemented for the shortest period possible. Special efforts must be undertaken to avoid pre-trial detention. ... 13. Any justice system dealing with juveniles shall ensure their effective participation in the proceedings concerning the imposition as well as the implementation of sanctions or measures. Juveniles shall not have fewer legal rights and safeguards than those provided to adult offenders by the general rules of criminal procedure. 14. Any justice system dealing with juveniles shall take due account of the rights and responsibilities of the parents and legal guardians and shall as far as possible involve them in the proceedings and the execution of sanctions or measures, except if this is not in the best interests of the juvenile. ... ... 21. For the purpose of these rules: ... 21.5. ’deprivation of liberty’ means any form of placement in an institution by decision of a judicial or administrative authority, from which the juvenile is not permitted to leave at will; ... Part III – Deprivation of liberty ... 49.1. Deprivation of liberty shall be implemented only for the purpose for which it is imposed and in a manner that does not aggravate the suffering inherent to it. ... 50.1. Juveniles deprived of their liberty shall be guaranteed a variety of meaningful activities and interventions according to an individual overall plan that aims at progression through less restrictive regimes and preparation for release and reintegration into society. These activities and interventions shall foster their physical and mental health, self-respect and sense of responsibility and develop attitudes and skills that will prevent them from re-offending. ... 56. Juveniles deprived of liberty shall be sent to institutions with the least restrictive level of security to hold them safely. 57. Juveniles who are suffering from mental illness and who are to be deprived of their liberty shall be held in mental health institutions. ... 62.2. At admission, the following details shall be recorded immediately concerning each juvenile: ... g. subject to the requirements of medical confidentiality, any information about the juvenile’s risk of self-harm or a health condition that is relevant to the physical and mental well-being of the juvenile or to that of others. ... 62.5. As soon as possible after admission, the juvenile shall be medically examined, a medical record shall be opened and treatment of any illness or injury shall be initiated. ... 65.2. Juveniles shall have ready access to sanitary facilities that are hygienic and respect privacy. ... 69.2. The health of juveniles deprived of their liberty shall be safeguarded according to recognised medical standards applicable to juveniles in the wider community. ... 73. Particular attention shall be paid to the needs of: ... d. juveniles with physical and mental health problems; ... 77. Regime activities shall aim at education, personal and social development, vocational training, rehabilitation and preparation for release ... ... 78.3. Where it is not possible for juveniles to attend local schools or training centres outside the institution, education and training shall take place within the institution, but under the auspices of external educational and vocational training agencies. ... 78.5. Juveniles in detention shall be integrated into the educational and vocational training system of the country so that after their release they may continue their education and vocational training without difficulty. ... 81. All juveniles deprived of their liberty shall be allowed to exercise regularly for at least two hours every day, of which at least one hour shall be in the open air, if the weather permits. ... 94.1. Disciplinary procedures shall be mechanisms of last resort. Restorative conflict resolution and educational interaction with the aim of norm validation shall be given priority over formal disciplinary hearings and punishments. ... 95.1. Disciplinary punishments shall be selected, as far as possible, for their educational impact. They shall not be heavier than justified by the seriousness of the offence. 95.2. Collective punishment, corporal punishment, punishment by placing in a dark cell, and all other forms of inhuman and degrading punishment shall be prohibited. ... Part IV – Legal advice and assistance 120.1. Juveniles and their parents or legal guardians are entitled to legal advice and assistance in all matters related to the imposition and implementation of sanctions or measures. 120.2. The competent authorities shall provide juveniles with reasonable facilities for gaining effective and confidential access to such advice and assistance, including unrestricted and unsupervised visits by legal advisors. 120.3. The state shall provide free legal aid to juveniles, their parents or legal guardians when the interests of justice so require. ...” 80. The Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, adopted by the Committee of Ministers on 17 November 2010, state, in so far as relevant, the following. “ II. Definitions For the purposes of these guidelines on child friendly justice (hereafter “the guidelines”): ... c. ’child-friendly justice’ refers to justice systems which guarantee the respect and the effective implementation of all children’s rights at the highest attainable level, bearing in mind the principles listed below and giving due consideration to the child’s level of maturity and understanding and the circumstances of the case. It is, in particular, justice that is accessible, age appropriate, speedy, diligent, adapted to and focused on the needs and rights of the child, respecting the rights of the child including the rights to due process, to participate in and to understand the proceedings, to respect for private and family life and to integrity and dignity. III. Fundamental principles ... E. Rule of law 1. The rule of law principle should apply fully to children as it does to adults. 2. Elements of due process such as the principles of legality and proportionality, the presumption of innocence, the right to a fair trial, the right to legal advice, the right to access to courts and the right to appeal, should be guaranteed for children as they are for adults and should not be minimised or denied under the pretext of the child’s best interests. This applies to all judicial and non-judicial and administrative proceedings. ... IV. Child-friendly justice before, during and after judicial proceedings ... 19. Any form of deprivation of liberty of children should be a measure of last resort and be for the shortest appropriate period of time. ... 21. Given the vulnerability of children deprived of liberty, the importance of family ties and promoting the reintegration into society, competent authorities should ensure respect and actively support the fulfilment of the rights of the child as set out in universal and European instruments. In addition to other rights, children in particular should have the right to: ... b. receive appropriate education, vocational guidance and training, medical care, and enjoy freedom of thought, conscience and religion and access to leisure, including physical education and sport; ... B. Child-friendly justice before judicial proceedings ... 26. Alternatives to court proceedings should guarantee an equivalent level of legal safeguards. Respect for children’s rights as described in these guidelines and in all relevant legal instruments on the rights of the child should be guaranteed to the same extent in both in-court and out-of-court proceedings. C. Children and the police 27. Police should respect the personal rights and dignity of all children and have regard to their vulnerability, i.e. take account of their age and maturity and any special needs of those who may be under a physical or mental disability or have communication difficulties. 28. Whenever a child is apprehended by the police, the child should be informed in a manner and in language that is appropriate to his or her age and level of understanding of the reason for which he or she has been taken into custody. Children should be provided with access to a lawyer and be given the opportunity to contact their parents or a person whom they trust. 29. Save in exceptional circumstances, the parent(s) should be informed of the child’s presence in the police station, given details of the reason why the child has been taken into custody and be asked to come to the station. 30. A child who has been taken into custody should not be questioned in respect of criminal behaviour, or asked to make or sign a statement concerning such involvement, except in the presence of a lawyer or one of the child’s parents or, if no parent is available, another person whom the child trusts. ...” B. United Nations 81. The United Nations Convention on the Rights of the Child ( adopted on 20 November 1989, 1577 UNTS 3 – “the CRC”) sets out the fundamental principle of the best interests of the child in Article 3, which reads as follows. “1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.” 82. In so far as relevant to the present case, the CRC further states as follows. Article 23 “1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child’s active participation in the community. 2. States Parties recognize the right of the disabled child to special care ... ...” Article 37 “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. ... (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action .” Article 40 “1. States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. 2. To this end, and having regard to the relevant provisions of international instruments, States Parties shall, in particular, ensure that: ... (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: (i) To be presumed innocent until proven guilty according to law; (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence; (iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; (iv) Not to be compelled to give testimony or to confess guilt; to examine or have examined adverse witnesses and to obtain the participation and examination of witnesses on his or her behalf under conditions of equality; (v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law; ...” 83. General Comment No. 9 (2006) of the Committee on the Rights of the Child (27 February 2007, UN Doc. CRC/C/GC/9), contains, inter alia, the following recommendations. “ 73. In the light of article 2 States parties have the obligation to ensure that children with disabilities who are in conflict with the law (as described in article 40, paragraph 1) will be protected not only by the provisions of the Convention which specifically relate to juvenile justice (arts. 40, 37 and 39) but by all other relevant provisions and guarantees contained in the Convention, for example in the area of health care and education. In addition, States parties should take where necessary specific measures to ensure that children with disabilities de facto are protected by and do benefit from the rights mentioned above. 74. With reference to the rights enshrined in article 23 and given the high level of vulnerability of children with disabilities, the Committee recommends – in addition to the general recommendation made in paragraph 73 above – that the following elements of the treatment of children with disabilities (allegedly) in conflict with the law be taken into account: a) A child with disability who comes in conflict with the law should be interviewed using appropriate languages and otherwise dealt with by professionals such as police officers, attorneys/advocates/social workers, prosecutors and/or judges, who have received proper training in this regard; b) Governments should develop and implement alternative measures with a variety and a flexibility that allow for an adjustment of the measure to the individual capacities and abilities of the child in order to avoid the use of judicial proceedings. Children with disabilities in conflict with the law should be dealt with as much as possible without resorting to formal/legal procedures. Such procedures should only be considered when necessary in the interest of public order. In those cases special efforts have to be made to inform the child about the juvenile justice procedure and his or her rights therein; c) Children with disabilities in conflict with the law should not be placed in a regular juvenile detention centre by way of pre-trial detention nor by way of a punishment. Deprivation of liberty should only be applied if necessary with a view to providing the child with adequate treatment for addressing his or her problems which have resulted in the commission of a crime and the child should be placed in an institution that has the specially trained staff and other facilities to provide this specific treatment. In making such decisions the competent authority should make sure that the human rights and legal safeguards are fully respected. ” 84. General Comment No. 10 (2007) of the Committee on the Rights of the Child (25 April 2007, UN Doc. CRC/C/GC/10), includes the following recommendations. “33. ... In this regard, State parties should inform the Committee in their reports in specific detail how children below the [minimum age of criminal responsibility] set in their laws are treated when they are recognized as having infringed the penal law, or are alleged as or accused of having done so, and what kinds of legal safeguards are in place to ensure that their treatment is as fair and just as that of children at or above [the minimum age of criminal responsibility]. ... 49. The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence. CRC does require that the child be provided with assistance, which is not necessarily under all circumstances legal but it must be appropriate. It is left to the discretion of the States parties to determine how this assistance is provided but it should be free of charge. ... ... 52. ... decisions without delay should be the result of a process in which the human rights of the child and legal safeguards are fully respected. In this decision-making process without delay, the legal or other appropriate assistance must be present. This presence should not be limited to the trial before the court or other judicial body, but also applies to all other stages of the process, beginning with the interviewing (interrogation) of the child by the police. ... 56. In line with article 14 (3) (g) of ICCPR, CRC requires that a child be not compelled to give testimony or to confess or acknowledge guilt ... 57. ... The term ‘compelled’ should be interpreted in a broad manner and not be limited to physical force or other clear violations of human rights. The age of the child, the child’s development, the length of the interrogation, the child’s lack of understanding, the fear of unknown consequences or of a suggested possibility of imprisonment may lead him/her to a confession that is not true. That may become even more likely if rewards are promised such as: ‘You can go home as soon as you have given us the true story’, or lighter sanctions or release are promised. 58. The child being questioned must have access to a legal or other appropriate representative, and must be able to request the presence of his/her parent(s) during questioning. There must be independent scrutiny of the methods of interrogation to ensure that the evidence is voluntary and not coerced, given the totality of the circumstances, and is reliable. The court or other judicial body, when considering the voluntary nature and reliability of an admission or confession by a child, must take into account the age of the child, the length of custody and interrogation, and the presence of legal or other counsel, parent(s), or independent representatives of the child. ...” 85. General Comment No. 35 of the Human Rights Committee (16 December 2014, UN Doc. CCPR/C/GC/35), comprises the following remarks concerning Article 9 (Liberty and security of person) of the International Covenant on Civil and Political Rights. “28. For some categories of vulnerable persons, directly informing the person arrested is required but not sufficient. When children are arrested, notice of the arrest and the reasons for it should also be provided directly to their parents, guardians, or legal representatives. ... ... 62. Article 24, paragraph 1, of the Covenant entitles every child ‘to such measures of protection as are required by his status as a minor, on the part of his family, society and the State’. That article entails the adoption of special measures to protect the personal liberty and security of every child, in addition to the measures generally required by article 9 for everyone. A child may be deprived of liberty only as a last resort and for the shortest appropriate period of time. In addition to the other requirements applicable to each category of deprivation of liberty, the best interests of the child must be a primary consideration in every decision to initiate or continue the deprivation. ... The child has a right to be heard, directly or through legal or other appropriate assistance, in relation to any decision regarding a deprivation of liberty, and the procedures employed should be child-appropriate. ...” 86. The relevant parts of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”), adopted by the General Assembly on 29 November 1985 (UN Doc. A/RES/40/33), state the following. “5. Aims of juvenile justice 5.1 The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence. ... 7. Rights of juveniles 7.1 Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to counsel, the right to the presence of a parent or guardian, the right to confront and cross-examine witnesses and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings. ... 10. Initial contact 10.1 Upon the apprehension of a juvenile, her or his parents or guardian shall be immediately notified of such apprehension, and, where such immediate notification is not possible, the parents or guardian shall be notified within the shortest possible time thereafter. ... 10.3 Contacts between the law enforcement agencies and a juvenile offender shall be managed in such a way as to respect the legal status of the juvenile, promote the well-being of the juvenile and avoid harm to her or him, with due regard to the circumstances of the case. ... 17. Guiding principles in adjudication and disposition 17.1 The disposition of the competent authority shall be guided by the following principles: ... (b) Restrictions on the personal liberty of the juvenile shall be imposed only after careful consideration and shall be limited to the possible minimum; (c) Deprivation of personal liberty shall not be imposed unless the juvenile is adjudicated of a serious act involving violence against another person or of persistence in committing other serious offences and unless there is no other appropriate response; ... Commentary ... Rule 17.1 (b) implies that strictly punitive approaches are not appropriate. Whereas in adult cases, and possibly also in cases of severe offences by juveniles, just desert and retributive sanctions might be considered to have some merit, in juvenile cases such considerations should always be outweighed by the interest of safeguarding the well-being and the future of the young person. ... 19. Least possible use of institutionalization 19.1 The placement of a juvenile in an institution shall always be a disposition of last resort and for the minimum necessary period. Commentary ... Rule 19 aims at restricting institutionalization in two regards: in quantity (‘last resort’) and in time (‘minimum necessary period’). Rule 19 reflects one of the basic guiding principles of resolution 4 of the Sixth United Nations Congress: a juvenile offender should not be incarcerated unless there is no other appropriate response. ... In fact, priority should be given to ‘open’ over ‘closed’ institutions. Furthermore, any facility should be of a correctional or educational rather than of a prison type. ... 26. Objectives of institutional treatment ... 26.2 Juveniles in institutions shall receive care, protection and all necessary assistance – social, educational, vocational, psychological, medical and physical – that they may require because of their age, sex and personality and in the interest of their wholesome development. ...” 87. The United Nations Rules for the Protection of Juveniles Deprived of their Liberty (“the Havana Rules”), adopted by General Assembly Resolution 45/113 of 14 December 1990, include the following provisions. “ I. Fundamental perspectives ... 2. Juveniles should only be deprived of their liberty in accordance with the principles and procedures set forth in these Rules and in the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules). Deprivation of the liberty of a juvenile should be a disposition of last resort and for the minimum necessary period and should be limited to exceptional cases. The length of the sanction should be determined by the judicial authority, without precluding the possibility of his or her early release. ... II. Scope and application of the rules 11. For the purposes of the Rules, the following definitions should apply: ... (b) The deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting, from which this person is not permitted to leave at will, by order of any judicial, administrative or other public authority. ... IV. The management of juvenile facilities ... B. Admission, registration, movement and transfer 21. In every place where juveniles are detained, a complete and secure record of the following information should be kept concerning each juvenile received: ... (e) Details of known physical and mental health problems, including drug and alcohol abuse. ... C. Classification and placement 27. As soon as possible after the moment of admission, each juvenile should be interviewed, and a psychological and social report identifying any factors relevant to the specific type and level of care and programme required by the juvenile should be prepared. This report, together with the report prepared by a medical officer who has examined the juvenile upon admission, should be forwarded to the director for purposes of determining the most appropriate placement for the juvenile within the facility and the specific type and level of care and programme required and to be pursued. ... 28. The detention of juveniles should only take place under conditions that take full account of their particular needs, status and special requirements according to their age, personality, sex and type of offence, as well as mental and physical health, and which ensure their protection from harmful influences and risk situations. The principal criterion for the separation of different categories of juveniles deprived of their liberty should be the provision of the type of care best suited to the particular needs of the individuals concerned and the protection of their physical, mental and moral integrity and well-being. ... D. Physical environment and accommodation 31. Juveniles deprived of their liberty have the right to facilities and services that meet all the requirements of health and human dignity. 32. The design of detention facilities for juveniles and the physical environment should be in keeping with the rehabilitative aim of residential treatment, with due regard to the need of the juvenile for privacy, sensory stimuli, opportunities for association with peers and participation in sports, physical exercise and leisure-time activities. ... ... 34. Sanitary installations should be so located and of a sufficient standard to enable every juvenile to comply, as required, with their physical needs in privacy and in a clean and decent manner. ... E. Education, vocational training and work 38. Every juvenile of compulsory school age has the right to education suited to his or her needs and abilities and designed to prepare him or her for return to society. Such education should be provided outside the detention facility in community schools wherever possible and, in any case, by qualified teachers through programmes integrated with the education system of the country so that, after release, juveniles may continue their education without difficulty. ... ... H. Medical care 49. Every juvenile shall receive adequate medical care, both preventive and remedial, including dental, ophthalmological and mental health care, as well as pharmaceutical products and special diets as medically indicated. ... 50. Every juvenile has a right to be examined by a physician immediately upon admission to a detention facility, for the purpose of recording any evidence of prior ill-treatment and identifying any physical or mental condition requiring medical attention. 51. The medical services provided to juveniles should seek to detect and should treat any physical or mental illness, substance abuse or other condition that may hinder the integration of the juvenile into society. Every detention facility for juveniles should have immediate access to adequate medical facilities and equipment appropriate to the number and requirements of its residents and staff trained in preventive health care and the handling of medical emergencies. Every juvenile who is ill, who complains of illness or who demonstrates symptoms of physical or mental difficulties, should be examined promptly by a medical officer. 52. Any medical officer who has reason to believe that the physical or mental health of a juvenile has been or will be injuriously affected by continued detention, a hunger strike or any condition of detention should report this fact immediately to the director of the detention facility in question and to the independent authority responsible for safeguarding the well-being of the juvenile. 53. A juvenile who is suffering from mental illness should be treated in a specialized institution under independent medical management. Steps should be taken, by arrangement with appropriate agencies, to ensure any necessary continuation of mental health care after release. ... L. Disciplinary procedures 66. Any disciplinary measures and procedures should maintain the interest of safety and an ordered community life and should be consistent with the upholding of the inherent dignity of the juvenile and the fundamental objective of institutional care, namely, instilling a sense of justice, self-respect and respect for the basic rights of every person. 67. All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned. The reduction of diet and the restriction or denial of contact with family members should be prohibited for any purpose. Labour should always be viewed as an educational tool and a means of promoting the self-respect of the juvenile in preparing him or her for return to the community and should not be imposed as a disciplinary sanction. No juvenile should be sanctioned more than once for the same disciplinary infraction. Collective sanctions should be prohibited. ...” 88. The United Nations Guidelines for the Prevention of Juvenile Delinquency (“the Riyadh Guidelines”), adopted by General Assembly Resolution 45/112 of 14 December 1990, include the following provision. “46. The institutionalization of young persons should be a measure of last resort and for the minimum necessary period, and the best interests of the young person should be of paramount importance. Criteria authorizing formal intervention of this type should be strictly defined and limited to the following situations: (a) where the child or young person has suffered harm that has been inflicted by the parents or guardians; (b) where the child or young person has been sexually, physically or emotionally abused by the parents or guardians; (c) where the child or young person has been neglected, abandoned or exploited by the parents or guardians; (d) where the child or young person is threatened by physical or moral danger due to the behaviour of the parents or guardians; and (e) where a serious physical or psychological danger to the child or young person has manifested itself in his or her own behaviour and neither the parents, the guardians, the juvenile himself or herself nor non-residential community services can meet the danger by means other than institutionalization.” 89. In its Concluding Observations on the combined fourth and fifth periodic reports of the Russian Federation of 25 February 2014 (UN Doc. CRC/C/RUS/CO/4-5), the Committee on the Rights of the Child “urged the State party to establish a juvenile justice system in full compliance with the Convention, in particular Articles 37, 39 and 40, and with other relevant standards”. It further recommended that the Russian Federation “prevent the unlawful detention of children and ensure that legal safeguards are guaranteed for children detained”. Articles 37 and 40 of the CRC relates to children in conflict with the law (see paragraph 82 above) while Article 39 concerns the rights of children who are victims of crimes. | This case concerned the detention for 30 days of a mentally disturbed 12-year old boy in a juvenile temporary detention centre. The applicant maintained notably that the proceedings against him had been unfair because he had allegedly been questioned by the police in the absence of his guardian, counsel or a teacher. |
282 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 6. At the time of the facts set out below the applicants resided in the United Kingdom on student visas. Their details are set out in the appendix. A. The applicants’ arrests and initial detention 7. On 8 April 2009 the applicants were arrested, along with nine others, under the Terrorism Act 2000, as amended (“the 2000 Act”), in various locations in the North West of England. The arrests occurred in the context of Operation Pathway. 1. Mr Sher 8. Mr Sher was arrested at 6.35 p.m. on 8 April under section 41 of the 2000 Act (see paragraph 91 below) on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions. 9. At around 10 p.m. a review of Mr Sher’s detention was carried out by a senior police officer. Mr Sher made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning. 10. At 7.40 a.m. on 9 April a notice (“TACT 5 form”) was served on the applicant’s solicitor, Mr Yousaf. The notice set out, inter alia, the following: “You are hereby informed that ... SULTAN SHER has been arrested under the provisions of Section 41 of the Terrorism Act 2000 as it is reasonably suspected that he is or has been involved in the commission, preparation or instigation of acts of terrorism.” 11. Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence and that he had no representations to make at that time. 12. At 9.35 a.m. a further review of Mr Sher’s detention took place. Mr Sher was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination or analysis of anything with a view to obtaining evidence. 13. At around 4 p.m. Mr Yousaf was provided with a copy of a pre-interview briefing document (“brief”). The third paragraph of the brief stated: “Your client has been arrested on suspicion of being concerned in the commission, preparation or instigation of an act of terrorism contrary to section 41 of the Terrorism Act 2000. Your client was informed that the arrest was necessary to allow the prompt and effective investigation of the offence. After caution your client made no reply. The arrest followed an Intelligence Operation conducted by the North West Counter Terrorism Unit.” 14. It went on to list the names of twelve people under arrest at different locations and said that their homes and associated premises were the subject of search, recovery and forensic scrutiny. Ten properties were the subject of such searches, although it was said that this was likely to increase “as further intelligence associating individuals to various premises come to the attention of the investigative team”. It added: “Your client should be made aware that such examinations of scenes will include searches for bomb-making equipment, devices, explosives, composite material, recipes, documentary evidence, computers and IT storage devices and mobile telephones ...” 15. It concluded: “Your client will be asked questions relating to his access and association to various properties and individuals subject of this investigation. Your client will be asked about computer usage and methods of communication but most significantly, he will be asked questions relating to his knowledge or any information he might have in relation to the commission, preparation or instigation of acts of terrorism ...” 16. At around 5 p.m. a further review of Mr Sher’s detention took place. His continued detention was deemed necessary for the reasons previously set out. 17. Shortly after 6 p.m. a first police interview began. Mr Sher was asked detailed questions about the other people who had been arrested, the various premises being searched and his knowledge of bomb-making equipment. He made no comment in response to these questions. The interview lasted for around one and a half hours in total. 18. Shortly before midnight, a further review of Mr Sher’s detention took place. His continued detention was deemed necessary for the reasons previously set out. 2. Mr Sharif 19. Mr Sharif was arrested at 5.37 p.m. on 8 April under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions and the applicant was informed of this. 20. At 11 p.m. a review of Mr Sharif’s detention was carried out by a senior police officer. Mr Sharif made no representations. His continued detention was authorised as necessary to secure and preserve evidence and to obtain evidence by questioning. 21. At 7.40 a.m. on 9 April, a TACT 5 form was served on Mr Yousaf in respect of Mr Sharif in the same terms as the form served as regards Mr Sher (see paragraph 10 above). Again Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence. 22. At 9.50 a.m. a further review of Mr Sharif’s detention took place. Mr Sharif was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination or analysis of anything with a view to obtaining evidence. 23. At 4.50 p.m. a further review of Mr Sharif’s detention took place. His continued detention was deemed necessary for the reasons previously set out. 24. At some point in the afternoon, Mr Sharif received a brief in almost the same terms as that received by Mr Sher (see paragraphs 13 - 15 above). He was subsequently interviewed for around half an hour and was asked in particular about the other people who had been arrested. He made no comment. 25. At 11.45 p.m. a further review of Mr Sharif’s detention took place. His continued detention was deemed necessary for the reasons previously set out. 3. Mr Farooq 26. Mr Farooq was arrested at 5.35 p.m. on 8 April under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, the reasons for his detention were explained to him. 27. At around 9.45 p.m. a review of Mr Farooq’s detention was carried out by a senior police officer. Mr Farooq made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning. 28. On 9 April, a TACT 5 form was served on Mr Yousaf in respect of Mr Farooq in the same terms as the form served as regards Mr Sher (see paragraph 10 above). Again Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence. 29. At 9.15 a.m. a further review of Mr Farooq’s detention took place. Mr Farooq was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination or analysis of anything with a view to obtaining evidence. 30. At 5.40 p.m. a further review of Mr Farooq’s detention took place. His continued detention was deemed necessary for the reasons previously set out. 31. At some point in the afternoon, Mr Farooq received a brief in almost the same terms as that received by Mr Sher (see paragraphs 13 - 15 above). A subsequent police interview lasted for around half an hour and Mr Farooq was asked in particular about the other people who had been arrested. He made no comment. 32. Shortly before midnight, a further review of Mr Farooq’s detention took place. His continued detention was deemed necessary for the reasons previously set out. B. The search warrants 33. Meanwhile, on 8 April 2009, the police applied for and were granted search warrants by the Manchester Magistrates’ Court in respect of a number of addresses connected with the applicants. The police officer making the application indicated that he had reasonable grounds for believing that the material was likely to be of substantial value to a terrorist investigation and that it had to be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed. 34. The relevant material was defined as: “Correspondence, leaflets, posters, magazines, subscription forms, identification documents, travel documents, passports, maps, sketches, plans, telephone records, accommodation details, literature/books, vehicle documents in relation to use/control, correspondence in relation to other properties/lock ups/garages and their keys, receipts for purchased goods, records of religious/political beliefs, handwritten notes, receipts, invoices, order forms, delivery notes, adverts, travel information land sea and air. Computers, computer equipment, PDA’s software, hardware, digital storage, faxes, printers, scanners, copiers, printer paper, DVDs, CDs, CD Roms, video/audio cassettes, memory sticks, mobile phones, sim cards, evidence of purchase of mobile phones and registration and billing, credit cards, top-up cards, cash, cheque books, money transfer documents, financial documents, cameras/video equipments, photographs/negatives, communication devices, chemical or pre cursor materials, memorabilia/ornaments/flags, items to conceal or transport items, any item believed to be connected to terrorism ...” 35. Search warrants were granted in those terms. The warrants included these words: “Authority is hereby given for any constable, accompanied by such person or persons as are necessary for the purposes of the search, to enter the said premises on one occasion only within one month from the date of issue of this warrant and to search the premises ...” 36. The search of Mr Sher’s home address was conducted over a ten-day period between 8 April and 18 April. The search at his place of work was conducted between 11 and 14 April. 37. Mr Sharif and Mr Farooq shared an address. Their residence was the subject of a search between 8 April and 19 April. 38. In relation to all of the properties that were searched, the police went to the property first thing in the morning and worked in shifts until about 7 p.m. They then closed up the property and it was cordoned off. They resumed their work at the property again the next morning, and worked in this way until the search was concluded. C. The applicants’ further detention 1. The first application for further detention 39. On 9 April 2009 the applicants were informed that an application would be made at the City of Westminster Magistrates’ Court for a warrant of further detention for the period of seven days beginning with the day of their arrest; and that a hearing would take place on 10 April. The notice of the application and the hearing went on to explain the following. “Both yourself and your legal representative may make written or oral representations and attend a hearing, subject to the provision of Schedule 8 para 33(3) of the Terrorism Act 2000, which provides that the judicial authority may exclude you or your legal representative from any part of the hearing. Your legal representative has been informed by written notice of his, and your, right to attend the hearing, subject to the provision mentioned above. Police are seeking a Warrant of Further Detention for the period of seven days beginning with the time of your arrest because it is necessary in order to obtain or preserve relevant evidence or pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence relating to the commission of an offence or offences under the provisions of Section 40(1)(a) or which indicates you are a person who falls within the provisions of Section 40(1)(b) of the Terrorism Act 2000.” 40. The application to the City of Westminster Magistrates’ Court contained, at section 9 under a heading “Further Enquiries to be made”, a lengthy description of the police operation and the current state of play in the ongoing investigation. The section 9 material was not provided to the applicants or Mr Yousaf. 41. The hearing was fixed for 9.30 a.m. on 10 April 2009. Part of the hearing was closed to allow the District Judge to scrutinise and ask questions about the material in section 9. The applicants and Mr Yousaf were therefore excluded from this part of the hearing. They made no complaint about the procedure at that time. 42. During the open part of the hearing, a senior police officer made an oral application for further detention which was reduced to writing and a copy of the note was provided to the applicants and to Mr Yousaf. The written note explained why the section 9 material was being withheld and provided some details of the police operation. It also gave details of all the property seized so far and explained that the investigation contained “intelligence and evidence that support[ed] the premise that [the applicants] through significant association with other detained persons [were] conspiring to plan a terrorist attack within the UK”. 43. Mr Yousaf cross-examined the police officer during the hearing and did not complain of the applicants’ detention or suggest that they should not be further detained. 44. At 1.20 p.m. the District Judge granted the warrants for further detention until 15 April. The formal notification of the decision stated as follows. “On application by a police officer of at least the rank of Superintendent, and having taken account of representations made by or on behalf of the person named above concerning the grounds upon which further detention is sought, I am satisfied that in accordance with paragraphs 30 and 32 of Schedule 8 to the Terrorism Act 2000, that: ... (ii) the investigation in connection with which the person is detained is being conducted diligently and expeditiously; (iii) there are reasonable grounds for believing that the further detention of the person named above is necessary to obtain relevant evidence whether by questioning him or otherwise or to preserve relevant evidence, or pending a result of an investigation or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence ...” 2. The detention from 10 April to 15 April (a) Mr Sher 45. On 10 April 2009 Mr Sher was provided with a second brief. It indicated that one of the other arrested suspects had said that he had lived with Mr Sher at two addresses and that he had knowledge of another arrested suspect. This document formed the basis of an interview with Mr Sher which began shortly after 6 p.m. and concluded one and a half hours later. During the interview, Mr Sher was asked about his acquaintance with some of the other arrested suspects and his familiarity with some of the searched premises. He made no reply to the questions put. 46. No interviews were carried out over 11 and 12 April, which was the Easter weekend. 47. On 13 April Mr Sher received a third brief which contained details of material found at various searched properties which could allegedly be linked to him. The brief was used as the basis of a further series of interviews which began at around 1 p.m. and lasted for about four hours in total. Again Mr Sher answered no comment to the points put to him. 48. On 14 April Mr Sher and his solicitor were provided with a fourth brief. It identified a number of items which were said to be “areas of interest” to the investigation, including: text messages between detainees; maps outlining designated areas of interest which significant numbers of the public would be expected to frequent; a detailed handwritten document depicting a militaristic zone abroad; access to and movements around the security industry including access to airports; mobile telephone use; international travel, including visits to Pakistan, and the purpose of travel; suspected reconnaissance at public locations; meetings of significance; and money transfers abroad. The document went on to state as follows. “Evidence exists linking your client to persons currently in custody. Direct evidence exists of the detainees meeting on a number of occasions both in Liverpool and Manchester. Mobile telephone pictures exist illustrating further associations between those persons arrested on this operation. The purpose of this briefing is to broadly outline the police investigation and its strong belief that preparatory acts for an attack plan were in place. A significant amount of exhibits are still currently being assessed and may form part of further pre-interview briefing.” 49. Again, the document provided the basis of an interview with Mr Sher which began shortly before 1 p.m. and lasted for about an hour and twenty minutes. Mr Sher declined to comment. (b) Mr Sharif 50. On 10 April 2009 Mr Sharif was provided with a second brief. It was based on information provided by some of the other detainees and concerned his acquaintance with them. It formed the basis of an interview with Mr Sharif which began at around 4 p.m. and concluded one and a half hours later. During the interview, Mr Sharif was asked about his acquaintance with some of the other arrested suspects and made no reply to the questions put. 51. Again, no interviews were carried out over the Easter weekend of 11 and 12 April. 52. On 13 April Mr Sharif received a third brief. It provided details of material found at his place of residence. The document was used as the basis of a further series of interviews which began at around 1.30 p.m. and lasted for about three hours in total. Mr Sharif answered no comment to the points put to him. 53. On 14 April Mr Sharif was provided with a fourth brief. It contained details of information provided by other detainees and otherwise reproduced the content of Mr Sher’s fourth brief (see paragraph 48 above). It provided the basis of an interview with Mr Sharif which lasted for about three hours. Mr Sharif declined to comment. (c) Mr Farooq 54. On 10 April 2009 Mr Farooq was provided with a second brief. It was based on information provided by some of the other detainees and concerned his acquaintance with them. It formed the basis of an interview with Mr Farooq which began at around 4 p.m. and concluded just over an hour later. During the interview, Mr Farooq was asked about his acquaintance with some of the other arrested suspects and made no reply to the questions put. 55. Again, no interviews were carried out over the Easter weekend of 11 and 12 April. 56. On 13 April Mr Farooq received a third brief which set out details of exhibits recovered from properties linked to him. The briefing document was used as the basis of a further series of interviews which lasted for just over two hours. Again Mr Farooq answered no comment to the points put to him. 57. On 14 April Mr Farooq was provided with a fourth brief in terms almost identical to that provided to Mr Sharif (see paragraph 53 above). It provided the basis of an interview with Mr Farooq which lasted for just over an hour. Mr Farooq declined to comment. 3. The second application for further detention 58. On 14 April 2009 the applicants and Mr Yousaf were informed that an application had been made to the City of Westminster Magistrates’ Court to extend the warrants of further detention for a further seven days. Notification of this application was in similar terms to the earlier notice. Section 9 of the application, which was withheld from the applicants, contained detailed information on the background to the investigation, the associations of the applicants, the scenes that had been searched, the forensic analysis, and the phones, computers, DVDs and documents that had been recovered. Under section 10, there was a list of bullet points under the heading “Reason Detention is Necessary Whilst Enquiries Made”, which included the need to await the conclusion of forensic searches and examination and the outcome of analyses instructed and the need to question the applicants concerning items found in their possession or at premises linked with them. 59. The application was heard on 15 April at around 9.30 a.m. and the applicants attended by video link. The hearing was entirely open. A senior police officer made the oral application, which had again been reduced to writing and provided to the applicants and Mr Yousaf. He said that the police operation in question was the most significant counterterrorism investigation since a plot in 2006 to cause explosions on aeroplanes through the use of liquid bombs, and that the North West Counter Terrorism Unit had never before undertaken an investigation of this size. He explained that searches had taken place at various properties and that only one scene had been completed and released. Three were awaiting results of forensic tests and seven scenes were still being searched. A total of 3,887 exhibits had been recovered to date. Priority was being given to exhibits such as documents, computers, mobile phones, sim cards and data storage devices; a large number of computers were being searched as well as DVDs and CDs; 127 phone or sim cards had been recovered and were being forensically examined, some with large memories. The application concluded by seeking the extension to the warrant on the grounds that it was necessary to obtain relevant evidence by questioning, to preserve relevant evidence, and pending the result or analysis of any further evidence. 60. At around 10.15 a.m. the Senior District Judge granted the extensions sought. The formal notification in relation to each applicant confirmed in writing that the judge was satisfied that the investigation was being conducted diligently and expeditiously and that there were reasonable grounds for believing that the further detention of the applicants was necessary to obtain relevant evidence. The warrants were extended by seven days, until 22 April 2009. 4. The detention from 15 April to 21 April (a) Mr Sher 61. Mr Sher was not interviewed on 15, 16, 17 or 18 April 2009. However, on 18 April, further briefs were provided. The documents referred to his arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued: “... It has been made apparent throughout the interview process, including safety interview conducted ... and in warrant applications, that we strongly believe that your client was involved in an attack plan.” 62. The document referred specifically to a wordpad document recovered from a pen drive (“the Buddy email”), which appeared to be a personal email discussing the weather and plans for an Islamic wedding “after 15th and before 20th of this month”. The police believed this to be code and considered that it suggested an imminent attack. The document continued: “Specifically we believe that your client has been part of a conspiracy with others currently in custody to murder with explosives. He is also suspected of possessing articles considered to be of use in terrorist activity.” 63. It identified various maps found with locations highlighted and photographs of public places in the North West of England. There was also a reference to a mobile phone belonging to another of the suspects which was found to contain Mr Sher’s telephone number. 64. The briefing formed the basis of a series of interviews on 19 April in which specific questions were put as to Mr Sher’s knowledge of these documents and the other materials. No answers were forthcoming. The total duration of the interviews was about four and a half hours. 65. On 20 April there was a final round of briefing documents, again referring to emails and computer communications, in particular via a specific and identified user name belonging to Mr Sher. In a subsequent interview lasting around one and a quarter hours, Mr Sher made no comment. (b) Mr Sharif and Mr Farooq 66. Neither Mr Sharif nor Mr Farooq was interviewed on 15, 16 or 17 April 2009. A further brief was provided on 18 April to each of them. The document summarised information provided by some of the other detainees; set out details of significant text messages received and sent from mobile telephones which were either in the applicants’ possession at the time of their arrest or discovered during the search of their residences; and gave details of other documents found during the searches, including maps of Manchester with locations highlighted. The briefing formed the basis of interviews with Mr Sharif and Mr Farooq on 18 April lasting for a total of almost three hours and one and a half hours respectively. At the beginning of the interviews, Mr Sharif and Mr Farooq were told that the police believed that they had been conspiring with others to cause explosions. No responses were forthcoming during the interviews. 67. On 19 April the applicants and their solicitor received a final briefing document in similar terms in each case. The document referred to their arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued: “... It has been made apparent throughout the interview process, including safety interview conducted ... and in warrant applications, that we strongly believe that your client was involved in an attack plan.” 68. The document referred to the Buddy email (see paragraph 62 above) and continued: “Specifically we believe that your client has been part of a conspiracy with others currently in custody to murder with explosives. He is also suspected of possessing articles considered to be of use in terrorist activity.” 69. In subsequent interviews with each applicant lasting around one and a quarter hours, neither made any comment. 70. No interviews took place on 20 April. D. The applicants’ release 71. On 21 April 2009 the applicants were released without charge and were served with deportation orders. They were then detained under immigration legislation and on 22 April were transferred into immigration service custody pending deportation. E. The judicial review proceedings 72. On 26 June 2009 the applicants commenced two sets of judicial review proceedings. In the first, they sought to challenge the deportation orders. That action does not form the basis of their application to this Court. The other (“the second action”) was lodged against five defendants: (1) Greater Manchester Police (“GMP”); (2) West Yorkshire Police (“WYP”); (3) the City of Westminster Magistrates’ Court; (4) Manchester Magistrates’ Court; and (5) the Home Secretary. In their claim form, the applicants sought to challenge the legality of their treatment between 8 and 21 April. They contended in particular that their rights under Article 5 §§ 2 and 4 and Article 6 § 1 of the Convention had been breached because they had not been provided with sufficient information at the time of arrest or detention as to the nature of the allegations against them, and because of the closed procedure permitted when hearing applications for warrants of further detention. They further argued that the searches of their homes were unlawful because the search warrants had been granted in terms that were too wide, because the terms of the warrants had been breached in that, although the police had permission to undertake a search on one occasion, they had actually occupied the premises for many days, and because of the seizures themselves. 73. On 21 July 2009 permission to apply for judicial review in the second action was refused by the Divisional Court. The judge summarised the remedies sought as follows. “3. The remedies sought by the claimants are extensive. They are set out in section 6 of the Claim Form in these terms: ‘(1) A declaration that the arrest of all three claimants by the first defendant was unlawful. (2) A declaration that the detention of all three claimants authorised by the second defendant was unlawful. (3) A declaration that the detention of all three claimants authorised by the warrants of further detention, and the extension of those warrants, issued by the third defendant was unlawful. (4) A declaration that the procedure under Schedule 8 of the Terrorism Act 2000 for the hearing of applications for warrants of further detention is incompatible with Article 5(4) of the European Convention on Human Rights. (5) An order quashing the search warrants at the home addresses of the claimants. (6) A declaration that ... the issuing of ... [search warrants for the home addresses of the applicants] by the fourth defendant was ... unlawful. (7) A declaration that the entry search and seizures at home addresses of the claimants was unlawful. (8) A mandatory order requiring the return of all items seized in execution of the search warrants forthwith together with any copies howsoever made or held by the defendants and their agents, and that no use be made of any knowledge obtained as a result of any examination or material unlawfully seized. (9) Any other relief the court considers appropriate. (10) Damages. (11) Costs.’” 1. The complaints concerning the provision of information 74. As regards the applicants’ complaints concerning the provision of information from the police about the reasons for their arrest and detention, the police argued that a private-law remedy for wrongful arrest and wrongful imprisonment was open to the applicants and should have been pursued. The applicants insisted that judicial review was an appropriate remedy in respect of their complaints. 75. The judge held that judicial review was not the appropriate forum. The issues which arose were questions of fact which were not appropriate for judicial review proceedings. He explained the following. “79. First, there is a pre-existing private law remedy available to these claimants against GMP and WYP. This is not a case where, if the claimants were not entitled to pursue judicial review proceedings, they would be left without a remedy. There can be no question of injustice if these proceedings were transferred to the QB [Queen’s Bench Division]: indeed, it is only if such a transfer occurred that the defendants could exercise their right to trial by jury. 80. Secondly, these claims involve potentially complex disputes of fact ... [S]uch fact-sensitive issues are wholly inappropriate for judicial review proceedings. 81. Thirdly, the claims being made by the claimants are historic ... There is therefore no reason for these proceedings to take up the judicial resources of the Administrative Court, which are required for the numerous urgent and prospective judicial review proceedings issued in the High Court every week. And although it is said that these issues are of public importance, that is not, without more, a reason to keep a fact-sensitive dispute, where there are obvious alternative remedies, in the Administrative Court. 82. I do not consider that the claimants’ complaint that there would be difficulties of public funding if the matter was transferred to the Queen’s Bench Division, or that the claimants may then be the subject of an application for security for costs, can have any relevance to the question of the proper forum for these claims. Judicial review proceedings do not exist in order for claimants to circumvent the usual rules relating to civil litigation and the funding and costs thereof. It would be wholly inappropriate to allow judicial review proceedings to become some sort of ‘costs-free’ civil jurisdiction, which gets a claimant to the same result as his private law remedies (regardless of the nature of the underlying dispute), but without the usual costs risks. I note too that the claimants say that public funding has not been readily available for these proceedings either, so that does not appear to be a material consideration in any event. The claimants would not have to return to the UK to give evidence in their private law action, which could instead be provided by way of video-link ...” 76. He concluded that the matters raised ought to be addressed in an ordinary private law action in which the potentially complex factual arguments could be properly determined. However, he added the following caveat: “84. I make plain that this conclusion is subject to one point. If the claimants were able to demonstrate that there were other parts of these claims which were arguable, and in respect of which judicial review proceedings offered them their only remedy, then in circumstances where the underlying issue was the same – namely, whether or not the claimants were given sufficient information – it may be a pragmatic and flexible solution for all such matters to be dealt with together in one set of judicial review proceedings. Accordingly, it is important in the subsequent sections of this Judgment to identify whether or not there are any such arguable judicial review claims.” 77. He turned to consider the arguability of the judicial review claims against the police, in the event that he was wrong as to the appropriate forum. In that case, he said, the issue was whether, on the material before the court, permission to seek judicial review should be granted on the basis that no one properly directing himself as to the relevant law could reasonably have reached the decision to arrest and detain the applicants (what he called a typical Wednesbury argument). 78. The judge referred, inter alia, to this Court’s judgment in Fox, Campbell and Hartley v. the United Kingdom (30 August 1990, Series A no. 182). He examined the lawfulness of the decision to arrest and commented as follows. “91. Each claimant was told that he was being arrested under section 41 of the Terrorism Act 2000 because the officer arresting him reasonably suspected that he was a terrorist. In my judgment, nothing more was required at that moment. As the decision in Fox and Others makes plain, a general statement of that sort will not usually amount to a breach of Article 5.2, provided of course that, thereafter, further information as to how and why such suspicions are held is promptly given to the suspect. For the reasons given in the next section of this Judgment, I am in no doubt that, on the material available to the court, such further information was given promptly to the claimants.” 79. In the judge’s view, the applicants could only challenge the lawfulness of their actual arrest by way of judicial review proceedings if their case was that the arresting officers did not honestly suspect them of being terrorists or that such belief was unreasonable. Since the applicants did not allege the absence of reasonable suspicion, the lawfulness of the arrests could not be impugned and the application to seek judicial review of the decision to arrest them was “hopeless”. 80. Concerning the lawfulness of the decisions to detain the applicants for the first forty-eight hours, the judge stated as follows. “94. The custody logs demonstrate that, during the first 38 hours of the claimants’ detention, the reviews were carried out at 12 hourly intervals and that all the appropriate and relevant information was taken into account. The records also reveal that neither the claimants nor their solicitor took any point as to their continuing detention during this period of 38 hours or so. On the face of the documents, therefore, I consider that it is impossible to say that any sustainable Wednesbury case as to absence of information emerges at all. 95. That view is confirmed by a consideration of the documents provided to the claimants during this early period ... [O]n 9th April 2009 the claimants were given [the first brief] and, having had a chance to consider the material there contained, they were interviewed at length about it. From this information, the claimants would have been in no doubt that they were being detained under suspicion of being involved, with other named conspirators, in a plan to plant a terrorist bomb. In all the circumstances, it seems to me that this was sufficient information to satisfy Article 5.2 and Article 5.4, at least at that early stage.” 81. In response to the applicants’ allegation that their detention after 10 April had been unlawful because it was on the basis of information solely derived from closed hearings, the judge emphasised that only part of the hearing on 10 April had been closed and that the hearing on 15 April had been entirely open. He considered that the applicants were being provided with sufficient information during this period to justify their continuing detention. He therefore viewed this part of the claim for judicial review as “fundamentally flawed”. He noted that counsel for the applicants repeatedly asserted that the basis for the applicants’ detention had never been explained to them, without ever attempting to engage with or address the contents of the various documents which had been provided to them. The judge continued as follows. “98. [I]t is plain from all that material that the allegations being made, and the questions being asked, were becoming more and more specific as the days passed, and that by the end of the 13 day period of detention, the claimants were each aware that they were being detained on suspicion of being involved, with other named co ‑ conspirators, to cause imminent bomb explosions at certain specified public locations in the North West of England. 99. [Counsel for the applicants] submitted that the claimants should have been given detailed information at the outset of their detention, with a level of specificity that was akin to the information in an indictment ... I consider that that submission is wrong in principle. The whole purpose of those parts of the ... [2000 Act] is to allow suspects to be detained after arrest without being charged because, at the time of their arrest, and perhaps for many days thereafter, it may not be possible to formulate charges against them as specifically as would appear on an indictment. That is precisely why Parliament has said that suspects can be detained without charge for up to 28 days, in order to allow further information as to the proposed charges to be obtained. Provided that sufficient information is provided to allow those detained under the [2000 Act] to challenge the lawfulness of that detention, if that is what they wish to do, then that is sufficient to satisfy both Article 5.2 and Article 5.4. 100. Of course ... the time will always come when more specific details of the suspected offences must be provided to the detainees. In this case, for the reasons that I have given, I consider that sufficient information was provided to the claimants to allow them to know why they were being detained and to challenge the lawfulness of the decision to detain them. They knew who the other conspirators were alleged to be, what the suspected crime was (intending explosions in particular public places in the North West), and what at least some of the evidence was ... that directly linked them to these allegations.” 82. The judge concluded in respect of the provision of information that if, contrary to his view, judicial review proceedings against the police were appropriate, he would refuse permission as the claim was not arguable on the material provided. He accepted that the question whether the decisions of the City of Westminster Magistrates’ Court to issue warrants of further detention were unlawful because inadequate information had been provided to the applicants concerning the reasons for their continued detention was potentially a matter of public law. However, he was satisfied that the claim was “fanciful” and unarguable since sufficient information was provided in the documents and the open hearings for the applicants to know why they were being detained. 2. The complaints concerning the searches (a) The manner of execution of the searches 83. In respect of allegations that the police had gone outside the terms of the search warrant by executing it over a number of days and of complaints about the seizures themselves, the police again argued that judicial review proceedings were not appropriate and that private-law proceedings should have been pursued by the applicants. The judge found this submission to be unarguably correct. 84. In any event, the judge held that even if these were matters for judicial review, there was no basis for concluding that the claim was arguable. He considered that the words “on one occasion” in the warrant authorised the police go to the property in question, undertake the search, and, when they had concluded that search, restore the property to the control of its occupiers. That was precisely what had happened here. The fact that the “occasion” lasted for more than one calendar day was irrelevant since there was nothing temporal about the word “occasion”. Further, the complaint that certain seized items had not been returned could and would have been resolved had the applicants followed the judicial review pre ‑ action protocol. Again, the judge concluded that if, contrary to his view, judicial review proceedings were appropriate, he would refuse permission as the claim was “hopeless”. (b) The scope of the search warrants 85. As to the complaint that the warrants were too wide, a complaint which the judge found was amenable to judicial review, he observed that the criticism appeared to be that because the warrants contained a lengthy list of references to common household items, such a list must, of itself, be too extensive or onerous. He rejected that submission for three reasons. Firstly, he considered the assertion to be too general, since a list that was too onerous in one case might be entirely appropriate in another. He continued as follows. “109. Secondly, in a situation like this, the police will be unlikely to know precisely what they are looking for. So they will identify those sorts of items which, in the past, have been relevant to searches such as this. Thus there are specific references to travel documents, computers, books, DVDs and the like. But it would be unrealistic for this court now to say, over a year later, that one or two of these items might, with hindsight, have been irrationally included in a list produced at the outset of a major terrorism investigation. 110. Thirdly, the court must recognise, in undertaking these urgent investigations, the police are not hamstrung by an artificially restricted list of items that they can investigate and/or seize. It would be contrary to the public interest if, on a search of premises in the context of an ongoing and urgent terrorism investigation, the police were inhibited because item A was on the list but item B was not. There is a clear public interest in ensuring that, within properly defined limits, the list is not restricted.” 86. He concluded that it was “inevitable” that in cases like this the warrants would be in relatively wide terms, explaining that the need to ensure public safety under the Terrorism Act 2000 required nothing less. He accordingly rejected the submission that the warrants were in terms that were too wide or that there was an arguable case that the decision to issue the warrants in those terms was unlawful or irrational. 3. The complaints concerning the procedure for issuing a warrant for further detention 87. Finally, the judge addressed the claim that the procedure for hearing applications for warrants of further detention in the 2000 Act was incompatible with Article 5 § 4 of the Convention because, although it allowed for a closed procedure, there was no system of special advocates in place. He found this to be a matter which, if it was appropriate to grant permission, would justify judicial review proceedings. 88. However, he considered the claim to be unarguable. He referred to the judgment of the House of Lords in Ward (see paragraphs 104 - 105 below) which, he said, made clear that the closed-hearing procedure was compatible with the Convention. He therefore rejected the submission that the provision of a special advocate was essential to ensure the fairness of the proceedings. He further noted that the applicants had not explained why the absence of express provision in the 2000 Act for a special advocate led inevitably to the conclusion that the scheme was incompatible with Article 5 § 4, since the District Judge could provide the necessary critical scrutiny in the interests of the person who was the subject of the proceedings. In any event, he held that such an advocate could have been appointed by the District Judge had such a course been considered necessary in the interests of justice. He noted that the applicants had not requested the appointment of a special advocate at either hearing. Finally, the judge considered the applicants’ case to be wrong on the facts since the warrants of further detention were not made entirely on the basis of closed information: only part of the 10 April hearing had been closed and the 15 April hearing had been entirely open. The claim for permission therefore failed both in principle and on the facts. F. The applicants’ return to Pakistan 89. In September 2009, all three applicants voluntarily returned to Pakistan. | This case concerned the arrest and detention of the applicants, three Pakistani nationals, in the context of a counterterrorism operation. The applicants were detained for 13 days, before ultimately being released without charge. During that period they were brought twice before a court with warrants for their further detention being granted. They were then taken into immigration detention and have since voluntarily returned to Pakistan. They complained in particular about the hearings on requests for prolongation of their detention because certain evidence in favour of their continued detention had been withheld from them and that one such hearing had been held for a short period in closed session. |
355 | Violence by private individuals | 2. The applicant was born in 1982 and lives in Zagreb. She was represented by Ms A. Bandalo and Ms N. Labavić, lawyers practising in Zagreb. 3. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The physical attack against the applicant 5. On 13 January 2010 the applicant was physically attacked in a nightclub in Zagreb where she was with several of her friends. The attack ceased only after one of the applicant’s friends, I.K., used her gas pistol to frighten off the attacker. 6. At about 6.00 a.m. a local police station of the Zagreb Police Department ( Policijska uprava zagrebačka, hereinafter: the “police”) was informed of the incident and two police officers immediately responded at the scene. 7. The relevant part of the police report on the findings at the scene of the incident reads: “When we came at the scene ... we found Pavla Sabalić ..., I.K. ..., I.D. ..., K.F. ..., E.N. ... and A.B. ... [personal details omitted]. By interviewing them and observing the scene of the incident we established that the above-mentioned persons had come to [the nightclub] at around 4.00 a.m., where they stayed for about one and a half hours. While they were in the nightclub [the applicant] was approached by an unidentified man who started flirting with her but she was constantly refusing him. After the nightclub closed they were all standing in front of it and the man continued pressing [the applicant] to be with him. When she said that she was a ‘lesbian’ he grabbed her with both of his arms and pushed her against a wall. He then started hitting her all over her body and when she fell to the ground he continued kicking her. ...” 8. The police soon identified the man as M.M. through the licence plates of a car he had used for fleeing from the scene. He was immediately apprehended and interviewed. 9. According to a police report of 13 January 2010, M.M. confirmed having met the applicant but then he had learned that she was in the nightclub with her girlfriend. When the nightclub closed he had seen several girls having some dispute with his friend and as he tried to calm them all down he pushed them with his hands. M.M. did not provide any further details, alleging that he could not remember them as he had been drunk at the time of the incident. The police also established that at the time of the incident M.M. had been in the nightclub with his friends, J.V. and A.K. 10. On the same day, at around 7.00 a.m., the applicant was examined in the accident and emergency department. The examination indicated a contusion on the head, a haematoma on the forehead, abrasions of the face, forehead and area around the lips, neck strain, contusion on the chest and abrasions of both palms and knees. The injuries were qualified as minor bodily injuries. Minor offences proceedings against M.M. 11. Following the incident the police interviewed the applicant and M.M. and the other participants in the event in connection with M.M.’s physical attack. 12. On 14 January 2010 the police instituted minor offences proceedings in the Minor Offences Court ( Prekršajni sud u Zagrebu ) against M.M. for breach of public peace and order. The relevant part of the indictment reads: “On 13 January 2010, at around 5.45 a.m., in Zagreb ..., on the street in front of [the nightclub], according to the statements of the victim Pavla Sabalić ... and the witnesses I.K. ..., E.N. ..., K.F. ..., A.B. ... and I.D. [personal details omitted], the accused physically attacked Pavla Sabalić by grabbing her with his both arms and throwing her against a wall. The accused then started hitting Pavla Sabalić with his fists all over her body and afterwards he knocked her to the ground and continued to kick her. His further actions were constrained by I.K. and then he left the scene by using the car ... The victim Pavla Sabalić sustained visible injuries on her head, which were qualified by a doctor [in the emergency] as minor bodily injuries. Thereby, a minor offence under section 13 §§ 1 and 2 of the Minor Offences against Public Order and Peace Act was committed.” 13. At a hearing on 20 April 2010 before the Minor Offences Court, M.M. confessed to the charges against him. No further evidence was taken and the applicant was not informed of the proceedings. 14. On the same day the Minor Offences Court found M.M. guilty as charged of breach of public peace and order and fined him 300 Croatian kunas (approximately 40 Euros (EUR)). 15. No appeal was lodged against the judgment and it became final on 15 May 2010. Criminal investigation into the applicant’s ill-treatment 16. After having realised that the police had failed to institute a criminal investigation, on 29 December 2010 the applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office ( Općinsko državno odvjetništvo u Zagrebu; hereinafter “the State Attorney’s Office”) against M.M. for the offences of attempted grave bodily injury (Article 99 §§ 1 and 4 of the Criminal Code) and violent behaviour (Article 331 § 2 of the Criminal Code), motivated by the hate crime element (Article 89(36) of the Criminal Code), and the criminal offence of discrimination (Article 174 § 1 of the Criminal Code). The relevant part of the applicant’s criminal complaint reads: “On 13 January 2010, after he was flirting with Pavla Sabalić and after she had refused him saying that she had a girlfriend, around 5.45 a.m., in Zagreb [in front of the nightclub] [M.M.] physically attacked Pavla Sabalić by grabbing her with both his hands and throwing her against a wall ... and then hit her with his fists all over her body and afterwards he knocked her to the ground and kicked her. At the same time he was shouting: ‘You lesbian!’, ‘All of you should be killed!’, ‘I will f... you lesbian!’ and so on. E.N. attempted to restrain his attack by saying: ‘How can you beat a girl’, after which M.M. attacked E.N. by head-butting her, and then I.K. shot him with her gas pistol which made him cease the attack ...” 17. On the basis of the applicant’s criminal complaint, the State Attorney’s Office ordered the police to investigate the applicant’s allegations. 18. An unauthorised note of the applicant’s police interview, dated 14 January 2011, indicates that the applicant confirmed her allegations as to the course of the events leading up to her attack, and stressed that she could no longer remember all the details but that she believed that the attack was motivated by her sexual orientation. 19. In the further course of the police inquiry, the police interviewed the applicant’s friends I.K., I.D. and K.F., who confirmed the applicant’s version of the events. The police also interviewed A.K. and V.J., friends of M.M., who only confirmed that there was some commotion but they did not know any particular details. 20. On 28 April 2011 the State Attorney’s Office asked an investigating judge of the Zagreb County Court ( Županijski sud u Zagrebu; hereinafter “the County Court”) to conduct a further investigation into the applicant’s complaints in connection with a reasonable suspicion that M.M. had committed the offences of attempted grave bodily injury and violent behaviour, motivated by the hate crime element, and the criminal offence of discrimination against the applicant. 21. During the investigation, the investigating judge commissioned a medical expert report and the report qualified the applicant’s injuries in the forensic sense as minor bodily injuries. The investigating judge further questioned the applicant, who reiterated her version of the events. 22. The investigating judge also questioned M.M., who denied any deliberate attack on the applicant although he no longer remembered all the details of his discussion with her. During the questioning, M.M.’s defence lawyer informed the investigating judge that M.M. had been convicted by the Minor Offences Court on 20 April 2010 (see paragraphs 14-15 above). 23. On the basis of the findings of the investigating judge, on 19 July 2011 the State Attorney’s Office rejected the applicant’s criminal complaint on the ground that M.M. had already been prosecuted in the minor offences proceedings and that his criminal prosecution would contravene the ne bis in idem principle. The relevant part of the decision reads: “During the investigation the victim Pavla Sabalić was questioned as a witness and she provided a detailed and comprehensive account of the events as described in her criminal complaint against M.M. ... The description of the offences in the criminal complaint against M.M. lodged by the victim Pavla Sabalić ... shows that these offences have been consumed by the judgment of the Zagreb Minor Offences Court ... of 20 April 2010. By that judgment M.M. was found guilty of the minor offence under section 13 of the Minor Offences against Public Order and Peace Act and the judgment became final. It follows that M.M. has already been found guilty for the event, which has been, as such, adjudicated by the judgment of the Zagreb Minor Offences Court and therefore there is a negative procedural condition, that is to say a procedural impediment, to further criminal proceedings, since the matter is so-called ‘res judicata’. Comparing the description of the event, and in view of the incriminations contained in the victim’s criminal complaint, with the judgment of the Zagreb Minor Offences Court, by which the defendant has been found guilty in the minor offences proceedings, it is obvious that it concerns the same event and the same acts of M.M. It follows that the facts constituting the minor offence for which the defendant has been found guilty are essentially the same as those which form the incrimination in the victim’s criminal complaint. In these circumstances, the criminal proceedings would be conducted for the same offence, that is to say the same event, for which the defendant has already been finally convicted. In the concrete case the matter has been finally adjudicated, which follows from the interpretation of Article 31 § 2 of the Constitution, providing that ‘nobody can be tried or convicted twice in criminal proceedings for the same criminal offence for which he or she has been finally acquitted or convicted in accordance with the law’, as well as from the provisions of Article 4 of Protocol No. 7 [to the Convention] and Article 11 of the Code of Criminal Procedure which proclaim the ne bis in idem principle. It therefore follows that the matter has been finally adjudicated, which is a negative procedural condition, that is to say a procedural impediment, for further criminal proceedings and as such excludes further criminal prosecution.” 24. The State Attorney’s Office informed the applicant that she could take over the criminal prosecution as a subsidiary prosecutor by lodging an indictment in the Zagreb Municipal Criminal Court ( Općinski kazneni sud u Zagrebu; hereinafter “the Criminal Court”). 25. On 26 October 2011 the applicant took over the prosecution as a subsidiary prosecutor in the Criminal Court against M.M. on charges of attempted grave bodily injury (Article 99 §§ 1 and 4 of the Criminal Code) and violent behaviour (Article 331 § 2 of the Criminal Code), motivated by the hate crime element (Article 89(36) of the Criminal Code), and the criminal offence of discrimination (Article 174 § 1 of the Criminal Code). She contended that the State Attorney’s Office had misinterpreted the law on the ne bis in idem principle and that, in the concrete case, the matter had not been finally adjudicated. She also relied on the Court’s case-law concerning the authorities’ duty to investigate and effectively prosecute hate crime, arguing that the minor offences proceedings had fallen short of those requirements. 26. The Criminal Court rejected the applicant’s indictment on 19 July 2012, endorsing the arguments of the State Attorney’s Office. 27. The decision of the Criminal Court was upheld on appeal by the County Court on 9 October 2012. 28. On 5 December 2012 the applicant lodged a constitutional complaint with the Constitutional Court ( Ustavni sud Republike Hrvatske ), referring to the Court’s case-law concerning the State’s procedural obligation to investigate acts of violence and hate crime, and complaining of the ineffectiveness of the domestic authorities in addressing her complaints effectively. She also contended that the lower authorities had misinterpreted the relevant law on the application of the ne bis in idem principle and thus erred in their assessment that the matter has been res judicata. 29. On 31 January 2013 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the ground that in the impugned decisions the lower courts had not addressed any of the applicant’s rights or obligations. 30. The decision of the Constitutional Court was served on the applicant’s representative on 22 February 2013. | The applicant, who had been attacked in a bar by a man to whom she had disclosed her homosexual orientation, complained in particular of the lack of an appropriate procedural response of the domestic authorities to an act of violence by a private party motivated by her sexual orientation. |
593 | Access to work | I. the circumstances of the case A. The applicant's conviction for insubordination 7. On 9 December 1983 the Athens Permanent Army Tribunal ( Diarkes Stratodikio ), composed of one career military judge and four other officers, convicted the applicant, a Jehovah's Witness, of insubordination for having refused to wear the military uniform at a time of general mobilisation. However, the tribunal considered under Article 70 (b) of the Military Criminal Code and under Article 84 § 2 (a) of the Criminal Code that there were extenuating circumstances and sentenced the applicant to four years' imprisonment. The applicant was released on parole after two years and one day. B. The refusal to appoint the applicant to a chartered accountant's post 8. In June 1988 the applicant sat a public examination for the appointment of twelve chartered accountants, a liberal profession in Greece. He came second among sixty candidates. However, on 8 February 1989 the Executive Board of the Greek Institute of Chartered Accountants (hereinafter “the Board”) refused to appoint him on the ground that he had been convicted of a serious crime ( kakuryima ). C. The proceedings before the Supreme Administrative Court 9. On 8 May 1989 the applicant seised the Supreme Administrative Court ( Simvulio Epikratias ) invoking, inter alia, his right to freedom of religion and equality before the law, as guaranteed by the Constitution and the Convention. The applicant also claimed that he had not been convicted of a crime but of a less serious offence. 10. On 18 April 1991 the Third Chamber of the Supreme Administrative Court held a hearing. On 25 May 1991 it decided to refer the case to the plenary court because of the important issues it raised. The Chamber's own view was that Article 10 of Legislative Decree no. 3329/1955 provided that a person who would not qualify for appointment to the civil service could not be appointed a chartered accountant. Moreover, according to Article 22 § 1 of the Civil Servants' Code, no person convicted of a serious crime could be appointed to the civil service. However, this provision referred to convictions by courts established in accordance with Article 87 § 1 of the Constitution. This was not the case with the permanent military courts, because the majority of their members were not career judges enjoying the same guarantees of independence as their civilian colleagues, as envisaged by Article 96 § 5 of the Constitution. As a result, the applicant's conviction by the Athens Permanent Army Tribunal could not be taken into consideration and the Board's decision not to appoint the applicant a chartered accountant had to be quashed. 11. On 21 January 1994 a hearing was held before the Supreme Administrative Court, sitting in plenary. On 11 November 1994 the court decided that the Board had acted in accordance with the law when, for the purposes of applying Article 22 § 1 of the Civil Servants' Code, it had taken into consideration the applicant's conviction for serious crime by the Athens Permanent Army Tribunal. Article 96 § 5 of the Constitution provided that the military courts would continue functioning as they had before until the enactment of a new law which would change their composition. Such a law had not yet been enacted. The Supreme Administrative Court further decided to refer the case back to the Third Chamber and ordered it to examine the remaining issues. 12. The decision of 11 November 1994 was taken by a majority. The minority considered that, since nine years had passed since the Constitution had entered into force without the law envisaged in Article 96 § 5 thereof having been enacted, the guarantees of independence required from civilian judges had to be afforded by the existing military courts. Since that was not the case with the Athens Permanent Army Tribunal, Mr Thlimmenos's application for judicial review had to be allowed. 13. On 26 October 1995 the Third Chamber held a further hearing. On 28 June 1996 it rejected Mr Thlimmenos's application for judicial review, considering, inter alia, that the Board's failure to appoint him was not related to his religious beliefs but to the fact that he had committed a criminal offence. | The executive board of the Greek chartered accountants body refused to appoint the applicant as a chartered accountant – even though he had passed the relevant qualifying exam – on the ground that he had been convicted of insubordination for having refused to wear the military uniform at a time of general mobilization (he was a Jehovah's Witness). |
587 | Expulsion or extradition cases | I. THE CIRCUMSTANCES OF THE CASE A. Introduction 7. The applicant was born in 1960 near Bethlehem, then administered as part of the Kingdom of Jordan. He arrived in the United Kingdom in September 1993, having previously fled Jordan and gone to Pakistan. He made a successful application for asylum, the basis of which was first, that he had been detained and tortured in March 1988 and 1990-1991 by the Jordanian authorities and second, that he had been detained and later placed under house arrest on two further occasions. The applicant was recognised as a refugee on 30 June 1994 and granted leave to remain until 30 June 1998. As is the normal practice, the Secretary of State did not give reasons for his decision for recognising the applicant as a refugee. 8. On 8 May 1998 the applicant applied for indefinite leave to remain in the United Kingdom. This application had not been determined before the applicant’s arrest on 23 October 2002. On that date he was taken into detention under the Anti-terrorism, Crime and Security Act 2001 (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 90, 19 February 2009). When that Act was repealed in March 2005, the applicant was released on bail and then made subject to a control order under the Prevention of Terrorism Act 2005 (ibid., §§ 83 and 84). On 11 August 2005, while his appeal against that control order was still pending, the Secretary of State served the applicant with a notice of intention to deport (see section 3, paragraph 25 below). B. Previous criminal proceedings in Jordan 1. The Reform and Challenge Trial 9. In April 1999, the applicant was convicted in absentia in Jordan of conspiracy to cause explosions, in a trial known as the “reform and challenge” case. He was the twelfth of thirteen defendants. 10. The case involved an allegation of a conspiracy to carry out bombings in Jordan, which resulted in successful attacks on the American School and the Jerusalem Hotel in Amman in 1998. There were further convictions for offences of membership of a terrorist group, but these matters were the subject of a general amnesty. The applicant was sentenced to life imprisonment with hard labour at the conclusion of the trial. 11. During the trial, one witness, Mohamed Al-Jeramaine, confessed that he and not the defendants had been involved in the bombings. The State Security Court hearing the case took the view that his confession was false, and demonstrably so, because of discrepancies between what he said about the nature of the explosives, for example, and other technical evidence. Mr Al-Jeramaine was later executed for homicides for which he had been convicted in another trial. 12. The applicant maintains that the evidence against him was predominantly based upon an incriminating statement from a co-defendant, Abdul Nasser Al-Hamasher (also known as Al-Khamayseh). In his confession to the Public (or State) Prosecutor, Mr Al-Hamasher alleged that the applicant had provided prior encouragement for the attacks. He was also said to have congratulated the group after the attacks. 13. Mr Al Hamasher, along with several other defendants, had complained during the proceedings before the State Security Court that they had been tortured by the Jordanian General Intelligence Directorate (“the GID”), which shares responsibility for maintaining internal security and monitoring security threats in Jordan with the Public Security Directorate and the military. At the end of the period of interrogation during which they claimed to have been tortured, the Public Prosecutor took a statement from each defendant. 14. At the trial there was evidence from lawyers and medical examiners and relatives of the defendants that there were visible signs of torture on the defendants. However, the State Security Court concluded that the defendants could not prove torture. 15. There were a number of appeals to the Court of Cassation and remittals back to the State Security Court, although, as the applicant had been convicted in absentia, no appeals were taken on his behalf. In the course of those appeals, the convictions were upheld on the basis that the relevant statements had been made to the Public Prosecutor. The confessions in those statements thus constituted sufficient evidence for conviction if the court accepted them and if the Public Prosecutor was satisfied with the confessions. The Court of Cassation rejected the claim that the Public Prosecutor had to prove that the defendants had confessed to him of their own accord: the Public Prosecutor’s obligation to prove that a confession was obtained willingly only arose where the confession had not been obtained by him. The confessions in question were authentic and there was no evidence that they had been made under financial or moral coercion. 16. The Court of Cassation then considered the impact of the allegations that the confessions to the State Prosecutor had resulted from coercion of the defendants and their families while they were in GID detention. Such conduct during an investigation was against Jordanian law and rendered the perpetrators liable to punishment. However, even assuming that the defendants’ allegations were true, that would not nullify the confessions made to the Public Prosecutor unless it were proved that those confessions were the consequence of illegal coercion to force the defendants to confess to things which they had not done. The defendants had not shown that was the case. 17. As a result of the applicant’s conviction in this trial, the Jordanian authorities requested the applicant’s extradition from the United Kingdom. In early 2000, the request was withdrawn by Jordan. 2. The millennium conspiracy trial 18. In the autumn of 2000 the applicant was again tried in absentia in Jordan, this time in a case known as the “millennium conspiracy”, which concerned a conspiracy to cause explosions at western and Israeli targets in Jordan to coincide with the millennium celebrations. The conspiracy was uncovered before the attacks could be carried out. The applicant was alleged to have provided money for a computer and encouragement through his writings, which had been found at the house of a co-defendant, Mr Abu Hawsher. The applicant maintains that the main evidence against him was the testimony of Abu Hawsher. 19. Most of the defendants were convicted on most charges; some were fully or partly acquitted. The applicant was convicted and sentenced to 15 years’ imprisonment with hard labour. Other defendants, including Abu Hawsher, were sentenced to death. On appeal certain of the defendants, including, it appears, Abu Hawsher, claimed to have been tortured during 50 days of interrogation when they were denied access to lawyers. The Court of Cassation rejected this ground of appeal, holding that the minutes of interrogation showed that each defendant had been told of his right to remain silent about the charges unless their lawyer was present. The applicant also states that the Court of Cassation found that the alleged ill-treatment in GID custody was irrelevant because the State Security Court did not rely on the defendants’ confessions to the GID but their confessions to the Public Prosecutor. Abu Hawsher remains under sentence of death. 20. The findings of the United Kingdom Special Immigration Appeals Commission (SIAC) in respect of the evidence presented at each trial are set out at paragraph 45 below. The further evidence which has become available since SIAC’s findings, and which has been submitted to this Court, is summarised as paragraphs 94–105 below. C. The agreement of a memorandum of understanding (MOU) between the United Kingdom and Jordan 21. In October 2001, the Foreign and Commonwealth Office advised the United Kingdom Government that Article 3 of the Convention precluded the deportation of terrorist suspects to Jordan. In March 2003, after a Government review of the possibility of removing such barriers to removal, the Foreign and Commonwealth Office confirmed that its advice of October 2001 remained extant but that it was considering whether key countries would be willing and able to provide the appropriate assurances to guarantee that potential deportees would be treated in a manner consistent with the United Kingdom’s obligations. In May 2003, the Foreign Secretary agreed that seeking specific and credible assurances from foreign governments, in the form of memoranda of understanding, might be a way of enabling deportation from the United Kingdom. 22. In November 2003, the British Embassy in Amman was instructed to raise the idea of a framework memorandum of understanding (MOU) with the Jordanian Government. In February 2005, after meetings between the Prime Minister of the United Kingdom and the King of Jordan, and between the Secretary of State for the Home Department and the Jordanian Foreign Minister, agreement was reached on the principle of an MOU. 23. Further negotiations took place in June 2005 and an MOU was signed on 10 August 2005. That MOU set out a series of assurances of compliance with international human rights standards, which would be adhered to when someone was returned to one State from the other (see paragraph 76 below). The same day, a side letter from the United Kingdom Chargé d’Affaires, Amman, to the Jordanian Ministry of the Interior was signed, which recorded the Jordanian Government’s ability to give assurances in individual cases that the death penalty would not be imposed. In respect of the applicant, further questions as to the conduct of any retrial he would face after deportation were also put to the Jordanian Government and answered in May 2006 by the Legal Adviser at the Jordanian Ministry of Foreign Affairs. 24. The MOU also made provision for any person returned under it to contact and have prompt and regular visits from a representative of an independent body nominated jointly by the United Kingdom and Jordanian Governments. On 24 October 2005, the Adaleh Centre for Human Rights Studies (“the Adaleh Centre”) signed a monitoring agreement with the United Kingdom Government. On 13 February 2006, the terms of reference for the Adaleh Centre were agreed (see paragraph 80 below). D. The applicant’s appeal against deportation 25. On 11 August 2005, that is, the day after the MOU was signed, the Secretary of State served the applicant with the notice of intention to deport. The Secretary of State certified that the decision to deport the applicant was taken in the interests of national security. The applicant appealed to SIAC against that decision arguing, inter alia, that it was incompatible with Articles 2, 3, 5 and 6 of the Convention. Relying on his previous asylum claim, he argued that his high profile would mean he would be of real interest to the Jordanian authorities. If returned, he would also face retrial for the offences for which he had been convicted in absentia. He would thus face lengthy pre-trial detention (in breach of Article 5) and, if convicted, would face a long term of imprisonment. All these factors meant he was at real risk of torture, either pre-trial or after conviction, to obtain a confession from him or to obtain information for other reasons. He was also at risk of the death penalty or rendition to other countries, such as the United States of America. Relying on Article 6, he alleged that his retrial would be flagrantly unfair: the State Security Court, a military court, lacked independence from the executive and there was a real risk that evidence obtained by torture – either of him, his co-defendants or other prisoners – would be admitted against him. 1. Proceedings before SIAC (a) The conduct of proceedings before SIAC and its national security findings 26. The applicant’s appeal was dismissed by SIAC on 26 February 2007. The appeal had been heard by SIAC in two parts: an “open session”, where the Secretary of State’s case and evidence was presented in the presence of the applicant and his representatives, and a “closed session” where parts of the Secretary of State’s case which could not be disclosed for security reasons were presented (see paragraph 69 below). SIAC heard evidence in closed session relating to the process by which the MOU had been agreed, the extent to which it would mitigate the risk of torture and also evidence as to the national security threat the applicant was alleged to have posed to the United Kingdom (“closed material”). In the closed sessions, the applicant and his representatives were excluded but his interests were represented by special advocates. SIAC then delivered an “open judgment”, which is publicly available, and a “closed judgment”, which was given only to the Secretary of State and the special advocates. 27. In reaching its decision as to whether the applicant’s deportation was necessary in the interests of national security, SIAC considered the Secretary of State’s case to be “well proved” since the applicant was regarded by many terrorists as a spiritual adviser whose views legitimised acts of violence. However, SIAC did not take into account either of the applicant’s Jordanian convictions in absentia, which were originally advanced as part of the Government’s case. The reason for this was that the Government had adopted what was described as a “pragmatic approach” in withdrawing reliance upon any evidence which it was alleged might have been obtained by torture on the grounds that it would require an investigation as to whether it was obtained by torture. This was done in accordance the House of Lords’ ruling in A. and others (no. 2) to that effect (see paragraphs 136 and 137 below). 28. SIAC then reviewed the evidence it had heard from various sources including a senior United Kingdom diplomat, Mr Mark Oakden, who gave evidence on the negotiation of the MOU, the monitoring agreement with the Adaleh Centre and on the risk faced by the applicant in Jordan. On behalf of the applicant, it heard evidence on the Jordanian regime from three academics. It also received evidence from an Arabic speaking barrister, Ms Rana Refahi, who had travelled to Jordan to conduct research on the previous two trials including interviews with the defendants and their lawyers. Additionally, it considered evidence of the United States Government’s interest in the applicant and allegations that a Jordanian national had been the subject of extraordinary rendition from Jordan to the United States. (b) SIAC’s findings on the MOU 29. SIAC found that this Court’s judgments in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996 ‑ V and Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, ECHR 2005 ‑ I, showed that reliance could lawfully be placed on assurances; but the weight to be given depended on the circumstances of each case. There was a difference between relying on an assurance which required a State to act in a way which would not accord with its normal law and an assurance which required a State to adhere to what its law required but which might not be fully or regularly observed in practice. Referring to a decision of the United Nations Committee Against Torture, Agiza v. Sweden (see paragraph 147 below), where the Swedish authorities had expelled an Egyptian national after receiving assurances from Egypt, SIAC continued: “The case of Agiza stands as a clear warning of the dangers of simple reliance on a form of words and diplomatic monitoring. There were already warning signs which ought to have alerted the Swedish authorities to the risks, including the role they had permitted to a foreign intelligence organisation. But we note what to us are the crucial differences: the strength, duration and depth of the bilateral relationship between the two countries by comparison with any that has been pointed to between Sweden and Egypt; the way in which the negotiations over the MOU have proceeded and the diplomatic assessment of their significance; the particular circumstances of [the present applicant] and Jordan; the degree of risk at the various stages, in the absence of the MOU, particularly at the early stages of detention which is when the risk from torture by the GID would normally be at its greatest and when the confirmed torture of Agiza in Egypt appears to have occurred; and the speed with which the monitors would be seeking and we believe obtaining access to the Appellant in those early days. The Swedes felt that to seek to see Agiza would betray a want of confidence in the Egyptians, whereas there is no such feeling in either the UK, the [Adaleh] Centre or the Jordanian Government. Quite the reverse applies. One aspect of that case which also troubled the [Committee Against Torture] was that Agiza had been removed without final judicial determination of his case. That would not be the position here.” 30. In the present case, the political situation in Jordan and the freedom, albeit limited, of non-governmental organisations, the press and Parliament to express concerns would reduce the risks the applicant faced. In addition, the level of scrutiny Jordan had accepted under the MOU could not but show that it was willing to abide by its terms and spirit. Each country had a real interest in preventing breaches of the MOU: the diplomatic relationship between the United Kingdom and Jordan was friendly and long-standing and of real value to Jordan and it would have a real incentive to avoid being seen as having broken its word. Both countries had an interest in maintaining co-operation on counter-terrorism matters. The United Kingdom had a very real concern that it should be able to remove foreign nationals without breaching their rights under Article 3, so failure in such a highly publicised case would be a major setback for that process. That concern would thus act as a further incentive to investigate any breaches of the MOU. While the MOU did not specify what steps would be taken in such an investigation, SIAC accepted evidence from the Mr Oakden that any failure of the Jordanian Government to respond to diplomatic queries would lead to “rapidly escalating diplomatic and Ministerial contacts and reactions”. 31. SIAC accepted that there were some weaknesses in the MOU and monitoring provisions. Some protections, such as prompt access to a lawyer, recorded interviews, independent medical examinations and prohibition on undisclosed places of detention, were not explicitly present but, in reality, most of these aspects were covered. There was no guarantee that access to the applicant, as required by the Adaleh Centre’s terms of reference, would always be granted but any refusal would be brought to light quite quickly; in the early period of detention, the Centre was expected to visit the applicant three times a week. SIAC also expected the GID and the Jordanian Government to react swiftly to any approach by the United Kingdom were a visit to be refused. It was “disturbing” that the United Nations Special Rapporteur on Torture had been refused access to a GID facility in June 2006, despite a prior arrangement that he would be permitted free access. However, on the evidence it had heard, SIAC found that there was no real risk of ill-treatment of the applicant by the GID. There was a weakness in the Adaleh Centre’s “relative inexperience and scale”; it would be undertaking a task which would be new to it; and it did not have the expertise among its staff, as it had recognised. It was a fairly new body with limited resources and staff, although this could be overcome and the United Kingdom Government would bear the cost. It was the very fact of monitoring visits which was important and the absence of specialist expertise was not fatal to their value. (c) SIAC’s findings on Article 3 32. The United Kingdom Government did not contest the general thrust of the available material in relation to Jordan’s human rights record and, in SIAC’s view, details of human rights violations in Jordan remained relevant to the assessment of the risk faced by the applicant. The Government also took the position that it could not return the applicant to Jordan, in conformity with its international obligations, in the absence of the particular measures contained in the MOU. Nevertheless, SIAC found it important to consider the risks faced by the applicant by reference to the likely sequence of events if he were to be returned. It found that the MOU might not be necessary for each risk but rather reinforce the protection available. 33. SIAC accepted that, on return, the applicant would be taken into the custody of the GID and retried on the two charges for which he had been convicted in absentia. He would be accompanied by a representative of the Adaleh Centre to his place of detention and be medically examined. SIAC also accepted that the GID would interrogate the applicant with a view to obtaining a confession for use at trial and for more general intelligence purposes, though SIAC found it to be speculative that GID would interrogate the applicant about other offences in order to bring further charges against him; there was no evidence of any other charges outstanding. SIAC also accepted that the United States would seek to question the applicant and that this would take place soon after his arrival in Jordan. However, there was no real risk that Article 3 would be breached before the conclusion of the retrial. 34. There was a real risk of torture or ill-treatment of an “ordinary Islamist extremist” in GID detention before charge since such ill-treatment was widespread and longstanding and there was a climate of impunity and evasion of international monitoring in the GID. However, the applicant would be protected by his high profile, by the MOU and the monitoring agreement, especially since the Adaleh Centre would be “keen to prove its mettle” and would itself be subject to the vigilance of other non ‑ governmental organisations. This would also prevent any real risk of the use by the GID of tactics such as last-minute refusals of access, claims that the applicant did not wish to see the monitors or moving him elsewhere without notification. Access by the Adaleh Centre would also prevent the applicant’s incommunicado detention. 35. The MOU would also counteract the climate of impunity prevailing in the GID and toleration of torture by its senior members. The MOU and the monitoring arrangements were supported at the highest levels in Jordan – the King of Jordan’s political power and prestige were behind the MOU – so it was reasonable to assume that instructions on how to treat the applicant had been given to the GID and it would be aware that any breaches would not go unpunished. Moreover, senior members of the GID had participated in the MOU negotiations and therefore would know the consequences of any failure to comply. Even if abuses were normally the work of rogue officers, the specific and unusual position of the applicant and the effect of the MOU would lead to senior officers preventing ill-treatment in his case, even if they did so only out of self-interest. 36. Questioning by the United States was not forbidden by the MOU and, to SIAC, it was probable that the United States Central Intelligence Agency would be allowed to question the applicant directly with the GID present. However, the United Kingdom would have made clear to the United States its interests in ensuring that the MOU was not breached. The Jordanian authorities and United States would be careful to ensure that the United States did not “overstep the mark”. Assuming that the applicant remained in GID custody and was not surrendered to the United States, there would be no real risk of ill-treatment at the pre-trial stage. It was also highly unlikely that the applicant would be placed in any secret GID or CIA detention facility in Jordan. 37. The same factors applied to any questioning which might take place soon after the conviction or acquittal of the applicant. The MOU would continue to apply and it would be in the interests of both the Jordanians and the Americans to conduct any interrogation at the earliest opportunity rather than wait until after trial. The applicant’s high profile was also found to be “unlikely to diminish much for some years”. 38. There was little likelihood of the Jordanian authorities bringing any subsequent charges which carried the death penalty or seeking the death penalty in respect of the charges for which the applicant was to be retried. Instead, if he were convicted, the applicant would face a lengthy period of imprisonment. There was a real risk of a life sentence in respect of the Reform and Challenge conspiracy, although there was a greater prospect that it would be considerably less because of the way in which sentences on the other defendants appeared to have been reduced on appeal, to 4 or 5 years. There was no real risk of a life sentence in the millennium conspiracy retrial. There was no rule that would prevent a higher sentence being imposed than the 15 year sentence that had been imposed in absentia. However, the clear practice was against imposing higher sentences in retrials following initial convictions in absentia and there was no reason why a more unfavourable view would be taken of the applicant when he was present than when he was absent. The applicant would serve any sentence in an ordinary prison and not a GID detention facility; the sentence of hard labour did not connote any additional punishment. General conditions would not breach Article 3 and, although beatings sometimes occurred, there was no evidence that the applicant would be targeted as a political Islamist prisoner. His status would again act to protect him. 39. In respect of rendition, there were “powerful incentives” for the Jordanian and United States Governments not to allow this to happen, not least the real domestic political difficulties this would create for the Jordanian Government and the unwillingness of the United States to destabilise the Jordanian regime. Any instances of alleged rendition from Jordan had involved people of other nationalities or, in one case, of a dual US/Jordanian national. It was also very unlikely that the applicant would be removed to a secret CIA facility in Jordan since this would require the connivance of the Jordanian authorities contrary to the MOU. It was also unlikely that the United States Government would seek the extradition of the applicant from Jordan when it had not sought his extradition from the United Kingdom and there would be political difficulties for Jordan to accede to such a request. (d) SIAC’s findings on Article 5 40. In relation to the applicant’s detention following his removal to Jordan, SIAC found that the time limits for notifying the legal authorities of an arrest (48 hours) and for bringing formal charges (15 days) were regularly and lawfully extended by the courts at the request of the prosecutor, in stages of up to 15 days to a maximum of 50 days. It would therefore be compatible with Jordanian law for the applicant to be held in detention for 50 days without being physically brought before a court before being charged. Such extensions were approved by a judicial authority, although not necessarily in the physical presence of the suspect. 41. SIAC noted that the MOU did not explicitly require that there be no extensions of time beyond the initial 15 day detention but required that a returned person be brought promptly before a judge or other person authorised by law to determine the lawfulness of his detention. Though “promptly” was not defined in the MOU, SIAC found that this part of the MOU would be carried out, particularly since this was one of the earliest points at which the MOU would be engaged, and that the applicant’s first appearance before a judicial authority would be within 48 hours. It would not breach the MOU if the applicant were to be detained for a maximum of 50 days, by means of judicially approved 15 day extensions, or if he were absent when those later decisions were taken. However, in reality the total period of 50 days was unlikely to be sought, even without the MOU, because the applicant faced a retrial and the case dossiers had already been through the trial and appeal process a number of times. (e) SIAC’s findings on Article 6 42. It was common ground before SIAC that the applicant’s previous convictions would be set aside and he would face retrial before the State Security Court on the same charges. 43. In addition to his two challenges to the retrial process (the impartiality of the State Security Court and the use of evidence obtained by torture) the applicant also argued that he would be questioned in detention without the presence of a lawyer by the GID, United States officials or the Public Prosecutor. The latter had the power under Article 64(3) of the Jordanian Criminal Trial Procedures Code to conduct an investigation in the absence of a lawyer “whenever he [deemed] it necessary in order to reveal the truth”. This decision was not subject to review, though SIAC also noted that a confession before the Public Prosecutor was not admissible unless the individual had been warned that he need not answer questions without his lawyer present. SIAC thought it unlikely that the applicant would have a lawyer present during questioning by the GID or United States officials but very likely he would have access to a lawyer for any appearance before a judge or the Public Prosecutor. In terms of pre-trial preparation by the defence, the period and facilities available would be less extensive than in the United Kingdom but nonetheless better than would normally be the case in Jordan. 44. With regard to the lack of independence and impartiality of the State Security Court, SIAC found that the court would consist of three judges, at least two of whom would be legally qualified military officers with no security of tenure. The Public Prosecutor would also be a military officer. Appeal would lie to the Court of Cassation, a civilian court, though that court could not hear argument on any unfairness of the trial arising from the military composition of the State Security Court. 45. As to the potential use of evidence obtained by torture in the applicant’s retrial, SIAC found as follows: “418. The Jordanian legal system, by its terms, does not therefore permit the use of involuntary confession or incriminatory statements. There is a judicial examination of allegations of that nature before the evidence is admitted. Those allegations can themselves be tested by evidence. How far those allegations can be practicably tested is affected by certain features of the system. The burden of proof for excluding confessions made to the Prosecutor lies on the defendant. There is obvious difficulty in proving prior acts or threats by the GID in the absence of systems for recording questioning, for ensuring the presence of lawyers during questioning, and independent prompt medical examinations. There is likely to be considerable reluctance on the part of the Court to accept that confessions to the Prosecutor, a common source of evidence, are tainted by ill-treatment. The Court or Prosecutor does not appear prepared to compel the appearance of GID officials to testify about these allegations. There may be a sense that these allegations are made routinely, as a matter of defence strategy. 419. There may well be a greater willingness to test the nature of confessions made only in the course of GID questioning. There is some evidence that at least at Court of Cassation level, confessions alleged to have been obtained by torture have been excluded, (though it is not clear whether those were made to the GID or to the Prosecutor). 420. However, the general background evidence and that specific to the two trials in question shows that there is at least a very real risk that the incriminating statements against the [applicant] were obtained as a result of treatment by the GID which breached Article 3 ECHR; it may or may not have amounted to torture. It is very improbable that those statements would be excluded on the retrial, because the SSCt is unlikely to be persuaded that they were so obtained, particularly having already rejected that assertion at the first trials, although the makers could give evidence that they were so obtained and were in fact untrue.” There was, therefore, a high probability that the past statements made to the Public Prosecutor which incriminated the applicant would be admitted. SIAC further found that those statements would be of considerable, perhaps decisive, importance against him. On this aspect of the retrial, SIAC held: “439. To us, the question comes back to whether or not it is unfair for the burden of proof in Jordan to lie where it does on this issue; we do not think that to be unfair in itself. However, this burden of proof appears to be unaccompanied by some of the basic protections against prior ill-treatment or means of assisting its proof eg video or other recording of questioning by the GID, limited periods of detention for questioning, invariable presence of lawyers, routine medical examination, assistance from the Court in calling relevant officials or doctors. The decisions are also made by a court which lacks independence and does not appear to examine closely or vigorously allegations of this nature. It is taking these points in combination which leads us to conclude that the trial would be likely to be unfair within Article 6 because of the way the allegations about involuntary statements would be considered.” 46. SIAC concluded that, despite its findings in respect of the independence and impartiality of the State Security Court and the real risk of the admission of evidence obtained contrary to Article 3, there would be no flagrant denial of justice under Article 6 of the Convention if the applicant were retried in Jordan. SIAC stated that the retrial would take place “within a legally constructed framework covering the court system, the procedural rules and the offences”, the applicant would be present and it would be in public. The dossier from the original trial would be before the retrial court but the applicant could effectively challenge its contents. The execution of Al-Jeramaine and the difficulty faced by other witnesses, notably Abu Hawsher, would not make the retrial unfair. SIAC concluded: “446. We accept the lack of institutional independence in the SSCt. The lack of independence for SSCt Judges is in the structure and system. There is no evidence as to why particular judges might be chosen for particular cases, or that they are ‘leaned on’. But the SSCt is not a mere tool of the executive: there is sound evidence that it appraises the evidence and tests it against the law, and acquits a number of defendants. It has reduced sentences over time. 447. Its judges have legal training and are career military lawyers. There is a very limited basis beyond that for saying that they would be partial, and that has not been the gravamen of the complaint. Their background may well make them sceptical about allegations of abuse by the GID affecting statements made to the Prosecutor. They may instinctively share the view that allegations of ill-treatment are a routine part of a defence case to excuse the incrimination of others. The legal framework is poorly geared to detecting and acting upon allegations of abuse. The way in which it approaches the admission of evidence, on the material we have, shows no careful scrutiny of potentially tainted evidence. There would be considerable publicity given to the retrial and public trials can encourage greater care and impartiality in the examination of the evidence. This would not be a mere show trial, nor were the first trials; nor would the result be a foregone conclusion, regardless of the evidence. 448. Reasons are given for the decisions, and an appeal to the Court of Cassation is available. The fact that such an appeal cannot cure the want of structural independence in the SSCt is not a reason for discounting its existence in the overall assessment of whether there would be a complete denial of Article 6 rights. This Court is a civilian court and the evidence of undue executive influence through appointment or removal is quite sparse. There is no evidence again as to how its panels are chosen, nor that they are “leaned on” by the executive. It plainly operates as a corrective to the rulings of the SSCt on law and procedure, and is of some relevance to factual matters, even though it does not hear the evidence all over again or have a full factual jurisdiction except on Prosecutors’ appeals. The probable sentences are not wholly disproportionate to the offences. 449. We have discussed at length the approach of the SSCt to the admission of statements to a prosecutor allegedly given as a result of prior ill-treatment. Although we take the view that a contribution of factors would probably make the retrial unfair in that respect, they do not constitute a complete denial of a fair trial. The existence of a legal prohibition on the admissibility of such evidence cannot be ignored, nor the fact that the SSCt would hear evidence relating to the allegations. The role of the Court of Cassation in reviewing and at times overturning the conclusions of the SSCt on this issue is material. The want of evidential or procedural safeguards to balance the burden of proof, and the probable cast of mind towards statements made to a prosecutor/judge in a civil law system, all within a security court dominated by military lawyers, does not suffice for a complete denial of justice. 450. There is a danger, given the inevitable focus on what is said to be potentially unfair about the retrial, in focussing exclusively on deficiencies when deciding whether there would be a total denial of the right to a fair trial, rather than looking at the picture of the trial as a whole. That is what has to be done however and it is that picture as a whole which has led us to our conclusion on this issue. 451. The various factors which would be likely to cause the retrial to breach Article 6 are to a considerable degree interlinked. Taking them in the round does not persuade us that there is a real risk of a total denial of the right to a fair trial.” 47. Finally, while there was the real prospect of a long term of imprisonment, this did not alter SIAC’s conclusion that the overall nature of the retrial would not be a total denial of the applicant’s rights. 2. Proceedings before the Court of Appeal 48. The applicant appealed to the Court of Appeal, which gave judgment on 9 April 2008, unanimously allowing the appeal in respect of Article 6 and the risk of the use of evidence obtained contrary to Article 3 and dismissing it on all other grounds ([2008] EWCA Civ 290). 49. For the applicant’s complaints under Article 3 as to the use of closed evidence by SIAC and the reliance on the assurances in the MOU, the Court of Appeal considered it was bound by its previous ruling on these questions in MT (Algeria), RB (Algeria), U (Algeria) v. the Secretary of State for the Home Department [2007] EWCA Civ 808, which had found that: (i) SIAC could consider closed evidence on safety on return; and (ii) the relevance of assurances to safety on return was a matter of fact not law and thus it had no jurisdiction to entertain an appeal on that ground. The Court of Appeal also rejected the applicant’s appeals based on Article 5, finding that SIAC was entitled to find as it did. 50. For Article 6, the Court of Appeal rejected the applicant’s argument that there was a real risk of a “flagrant denial of justice” in his retrial in Jordan by reason of a lack of independence and or impartiality of the State Security Court: SIAC had been entitled to find as it did on this point and this conclusion was not altered by the later decision of this Court in Al ‑ Moayad v. Germany (dec.), no. 35865/03, 20 February 2007. 51. However, the Court of Appeal accepted the applicant’s argument that there was a real risk that he would suffer a “flagrant denial of justice” by reason of the risk that statements obtained through treatment contrary to Article 3 would be admitted as evidence against him in his retrial. The Court of Appeal observed: “45. SIAC understated or misunderstood the fundamental nature in Convention law of the prohibition against the use of evidence obtained by torture. Counsel for the Secretary of State said that it was no part of his submission to say that if it is clear that a trial will take place on the basis of evidence obtained under torture, whether of the individual themselves, or third parties, that that would not involve flagrant denial of justice. Accordingly, once SIAC had found as a fact that there was a high probability that evidence that may very well have been obtained by torture (SIAC, § 436); or in respect of which there was a very real risk that it had been obtained by torture or other conduct breaching article 3 (SIAC, § 437); would be admitted at the trial of Mr Othman; then SIAC had to be satisfied that such evidence would be excluded or not acted on. The grounds relied on by SIAC for not finding a threatened breach of article 6 in that respect were insufficient. 46. We emphasise that that is not or not primarily a criticism of SIAC’s reasoning in terms of rationality, though we do consider additionally that SIAC’s conclusions did not follow rationally from its findings of fact. Rather, our principal finding is that SIAC erred by applying an insufficiently demanding test to determine the issue of whether article 6 rights would be breached. ... 48. The use of evidence obtained by torture is prohibited in Convention law not just because that will make the trial unfair, but also and more particularly because of the connexion of the issue with article 3, a fundamental, unconditional and non-derogable prohibition that stands at the centre of the Convention protections. As the ECtHR put it in §105 of its judgment in Jalloh v Germany 44 EHRR 32: ‘incriminating evidence-whether in the form of a confession or real evidence-obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture-should never be relied on as proof of the victim’s guilt, irrespective of its probative value. Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Art.3 of the Convention sought to proscribe or, as it was so well put in the US Supreme Court’s judgment in the Rochin case 342 US 165, “to afford brutality the cloak of law”.’ That view, that the use of evidence obtained by torture or ill-treatment is prohibited not just, or indeed primarily, because of its likely unreliability, but rather because the state must stand firm against the conduct that has produced the evidence, is universally recognised both within and outside Convention law. What is, with respect, a particularly strong statement to that effect, citing a multitude of equally strongly worded authorities, is to be found in §17 of the speech of Lord Bingham in A v Home Secretary (No2) [2006] 2 AC 221. 49. SIAC was wrong not to recognise this crucial difference between breaches of article 6 based on this ground and breaches of article 6 based simply on defects in the trial process or in the composition of the court. Rather, in its conclusions in §§ 442 ‑ 452 of its determination... it treated the possible use of evidence obtained by torture pari passu with complaints about the independence of the court: see in particular SIAC at §§ 449-450. That caused it not to recognise the high degree of assurance that is required in relation to proceedings in a foreign state before a person may lawfully be deported to face a trial that may involve evidence obtained by torture.” 52. The Court of Appeal noted that SIAC had reached its conclusion that there would not be a complete denial of justice in relation to the use of evidence obtained by torture by relying on the process, admittedly not wholly satisfactory, before the State Security Court and the Court of Cassation. For the Court of Appeal that conclusion sat very ill with SIAC’s own findings about the State Security Court process, in particular SIAC’s own concern as to the difficulties in proving that evidence had been obtained by torture. In the opinion of the Court of Appeal, SIAC’s concern was “amply justified by the litany of lack of the basic protections against prior ill-treatment” in Jordan. It also criticised SIAC’s “disturbing failure” to give proper weight to the findings as to the defects in the State Security Court. The Court of Appeal concluded: “It was not open to SIAC to conclude on that evidence that the risk of the total denial of justice that is represented by the use of evidence obtained by torture had been adequately excluded. SIAC could not have so concluded if it had properly understood the status in Convention law of this aspect of article 6.” 3. Proceedings before the House of Lords 53. The Secretary of State appealed to the House of Lords in relation to the Court of Appeal’s conclusion on Article 6. The applicant cross-appealed in relation to his other Convention complaints. The appeal was heard with the appeals of two of the appellants in MT (Algeria), RB and U (see paragraph 48 above). In the conjoined appeals the House of Lords was therefore able to consider the use of closed material before SIAC, the reliance on the assurances contained in the MOU and the applicant’s Articles 5 and 6 complaints. The House of Lords gave judgment on 18 February 2009 unanimously allowing the Government’s appeal and dismissing the applicant’s cross-appeal ([2009] UKHL 10). (a) Article 3: the “closed” proceedings before SIAC 54. Lord Phillips held that SIAC was lawfully entitled to consider closed material in evaluating safety on return and there were cogent considerations of policy for doing so. A distinction had to be drawn between closed material on safety on return and the use of closed material in other proceedings, for example to establish the national security threat posed by an individual. For the former, the individual would normally be aware of the nature of any risk on return and, in any event, it was for the individual himself, and not the State, to make out his case on whether he would be at risk on return. It was not likely to be critically important for a special advocate to be able to obtain input from the person to be deported in relation to closed evidence. As regards the impracticality of obtaining an appropriate expert witness with security clearance to see the material, Lord Phillips did not regard the problem as unfair. SIAC’s rules of procedure enabled the special advocate to ask SIAC to call for more evidence and SIAC, as an expert tribunal, could be relied upon “to make a realistic appraisal of the closed material in the light of the special advocate’s submission”. In respect of the assurances, Lord Phillips endorsed the view that the assurances contained in the MOU had to be disclosed but details of the negotiations leading to the MOU could be closed material. 55. Lord Hoffmann rejected the applicant’s argument on the more fundamental basis that he viewed this Court’s case-law as making it clear that the determination whether a deportation order might infringe Article 3 did not require “the full judicial panoply of article 6 or even 5(4)”. Citing Chahal, cited above, he emphasised that all that was required was “independent scrutiny of the claim”, which had occurred in the applicant’s case. 56. Lord Hope agreed, albeit accepting that this Court had not yet had the opportunity to analyse whether the SIAC system met the requirements of the Convention. In his view, it did so. Lord Brown also agreed, emphasising that with regard to safety on return, no case was being made against the applicant; rather it was he who was making a case against the returning State. (b) Article 3: assurances and the MOU 57. Lord Phillips (with whom the other Law Lords agreed) construed the this Court’s case-law from Mamatkulov and Askarov, cited above, onwards as treating assurances “as part of the matrix that had to be considered” when deciding whether there were substantial grounds for believing that the applicant would face treatment contrary to Article 3. He referred to the “abundance” of international law material, which supported the proposition that assurances should be treated with scepticism if they are given by a country where inhuman treatment by State agents was endemic. However, for Lord Phillips this came “close to a ‘Catch 22’ proposition that if you need to ask for assurances you cannot rely on them”. In rejecting that proposition, he held that the only basis to interfere with the view of SIAC was if its conclusions that the assurances could be relied upon were irrational and SIAC’s conclusions in the present case were not. (c) Article 5 58. The House of Lords unanimously refused to interfere with the finding of fact by SIAC that the applicant’s exposure under Jordanian law to 50 days’ detention without access to a court or a lawyer, would not arise. Lord Phillips found that, even if it would arise, 50 days’ detention would not constitute a flagrant breach of Article 5. A flagrant breach was a breach whose consequences were so severe that they overrode the right of a State to expel an alien from its territory. That might be satisfied by arbitrary detention which lasted many years but not 50 days’ detention. (d) Article 6 59. On Article 6, taking the test to be whether there would be a “complete denial or nullification” of the right to a fair trial, Lord Phillips observed: “136. This is neither an easy nor an adequate test of whether article 6 should bar the deportation of an alien. In the first place it is not easy to postulate what amounts to ‘a complete denial or nullification of the right to a fair trial’. That phrase cannot require that every aspect of the trial process should be unfair. ... What is required is that the deficiency or deficiencies in the trial process should be such as fundamentally to destroy the fairness of the prospective trial. 137. In the second place, the fact that the deportee may find himself subject in the receiving country to a legal process that is blatantly unfair cannot, of itself, justify placing an embargo on his deportation. The focus must be not simply on the unfairness of the trial process but on its potential consequences. An unfair trial is likely to lead to the violation of substantive human rights and the extent of that prospective violation must plainly be an important factor in deciding whether deportation is precluded.” 60. Having reviewed, the relevant case-law of this Court, including Bader and Kanbor v. Sweden, no. 13284/04, § 42, ECHR 2005 ‑ XI, which he took to exemplify the need to consider the risk of a violation of Article 6 in combination with other Articles such as Articles 2 and 3, Lord Phillips found: “[T]he Strasbourg jurisprudence, tentative though it is, has led me to these conclusions. Before the deportation of an alien will be capable of violating article 6 there must be substantial grounds for believing that there is a real risk (i) that there will be a fundamental breach of the principles of a fair trial guaranteed by article 6 and (ii) that this failure will lead to a miscarriage of justice that itself constitutes a flagrant violation of the victim’s fundamental rights.” 61. In the present case, the second limb was met by the potential sentences of imprisonment the applicant faced. For the first limb, Lord Phillips concluded that, although the military constitution of the Jordanian State Security Court would render the trial contrary to Article 6 if it were held in a Convention State, he agreed with SIAC and the Court of Appeal, that it could not amount to a “flagrant denial of justice” sufficient to prevent deportation in a removal case. 62. In respect of the applicant’s complaint that there was a real risk that the evidence against him had been obtained by torture, Lord Phillips held that the Court of Appeal erred. It had required too high a degree of assurance that evidence that might have been obtained by torture would not be used in a foreign trial. He stated: “[T]he prohibition on receiving evidence obtained by torture is not primarily because such evidence is unreliable or because the reception of the evidence will make the trial unfair. Rather it is because ‘the state must stand firm against the conduct that produced the evidence’. That principle applies to the state in which an attempt is made to adduce such evidence. It does not require this state, the United Kingdom, to retain in this country to the detriment of national security a terrorist suspect unless it has a high degree of assurance that evidence obtained by torture will not be adduced against him in Jordan... The issue before SIAC was whether there were reasonable grounds for believing that if Mr Othman were deported to Jordan the criminal trial that he would there face would have defects of such significance as fundamentally to destroy the fairness of his trial or, as SIAC put it, to amount to a total denial of the right to a fair trial. SIAC concluded that the deficiencies that SIAC had identified did not meet that exacting test. I do not find that in reaching this conclusion SIAC erred in law.” 63. Lord Hoffmann found that there was no Convention authority for the rule that, in the context of the application of Article 6 to a removal case, the risk of the use of evidence obtained by torture necessarily amounted to a flagrant denial of justice. 64. Lord Hope agreed. He accepted that this Court had adopted an “uncompromising approach” to the use at trial of evidence obtained by torture but the evidence before SIAC did not come up to that standard. There were allegations but no proof. The assertion that there was a real risk that the evidence was obtained by torture was not enough to prohibit removal. He recalled SIAC’s findings that the retrial would probably not comply with Article 6 if Jordan were a party to the Convention but would take place within a legally constructed framework. There was sound evidence that the State Security Court, which was not a mere tool of the executive, appraised the evidence and tested it against the law. SIAC had therefore been entitled to find as it did on the evidence. 65. Lord Brown agreed with Lord Phillips and, referring to the majority of the Grand Chamber in Mamatkulov and Askarov, cited above, stated: “if extradition was not unlawful even in the circumstances arising there, in my judgment expulsion most certainly is not unlawful here.” 66. Lord Mance, who agreed with the other Law Lords on Article 6 and all other points of appeal, noted a considerable resemblance between the concept of “flagrant unfairness” in this Court’s case-law and the concept of denial of justice in public international law generally. For the latter, the modern consensus was that the factual circumstances had to be egregious for State responsibility to arise in international law. III. THE ARRANGEMENTS BETWEEN THE UNITED KINGDOM AND JORDAN A. The MOU 76. The title of the MOU agreed between the United Kingdom Government and the Jordanian Government refers to the regulation of the “provision of undertakings in respect of specified persons prior to deportation”. 77. The MOU states that it is understood that the authorities of each State will comply with their human rights obligations under international law regarding a person returned under the MOU. When someone has been accepted under the terms of the MOU, the conditions set out in paragraphs 1-8 of the MOU will apply, together with any further specific assurances provided by the receiving state. Paragraphs 1 to 5 provide as follows: “1. If arrested, detained or imprisoned following his return, a returned person will be afforded adequate accommodation, nourishment, and medical treatment and will be treated in a humane and proper manner, in accordance with internationally accepted standards. 2. A returned person who is arrested or detained will be brought promptly before a judge or other officer authorised by law to exercise judicial power in order that the lawfulness of his detention may be decided. 3. A returned person who is arrested or detained will be informed promptly by the authorities of the receiving state of the reasons for his arrest or detention, and of any charge against him. 4. If the returned person is arrested, detained or imprisoned within 3 years of the date of his return, he will be entitled to contact, and then have prompt and regular visits from the representative of an independent body nominated jointly by the UK and Jordanian authorities. Such visits will be permitted at least once a fortnight, and whether or not the returned person has been convicted, and will include the opportunity for private interviews with the returned person. The nominated body will give a report of its visits to the authorities of the sending state. 5. Except where the returned person is arrested, detained or imprisoned, the receiving state will not impede, limit, restrict or otherwise prevent access by a returned person to the consular posts of the sending state during normal working hours. However, the receiving state is not obliged to facilitate such access by providing transport free of charge or at discounted rates.” 78. Paragraph 6 guarantees the right to religious observance in detention and paragraph 7 provides for the right to a fair trial for a returned person in terms similar to Article 6 § 1 of the Convention. Paragraph 8 replicates Article 6 § 3, omitting references to paragraphs (a) and (e) of that Article. 79. The MOU states that either Government may withdraw from the MOU by giving 6 months notice but it will continue to apply to anyone who has been returned. B. The terms of reference for the Adaleh Centre 80. The terms of reference for the Adaleh Centre (the monitoring body) provide that it must be operationally and financially independent of the receiving State and must be able to produce frank and honest reports. The terms of reference also state that it must have capacity for the task, with experts (“Monitors”) trained in detecting physical and psychological signs of torture and ill-treatment and access to other independent experts as necessary. A Monitor should accompany every person returned under the MOU (“returned person”) throughout their journey from the sending State to the receiving State, and should go with them to their home or, if taken to another place, to that place. It should have contact details for a returned person and their next of kin and should be accessible to any returned person or next of kin who wishes to contact it. It should report to the sending State on any concerns raised about the person’s treatment or if the person disappears. For the first year after the person returns, a Monitor should contact him or her, either by telephone or in person, on a weekly basis. 81. In respect of detention, the terms of reference provide as follows: “4. Visits to detainees (a) When the Monitoring Body becomes aware that a returned person has been taken into detention, a Monitor or Monitors should visit that person promptly. (b) Thereafter, Monitors should visit all detainees frequently and without notice (at least as frequently as the MOU permits; Monitors should consider requesting more frequent visits where appropriate, particularly in the early stages of detention. (c) Monitors should conduct interviews with detainees in private, with an interpreter if necessary. (d) Monitoring visits should be conducted by experts trained to detect physical and psychological signs of torture and ill-treatment. The visiting Monitor or Monitors should ascertain whether the detainee is being provided with adequate accommodation, nourishment, and medical treatment, and is being treated in a humane and proper manner, in accordance with internationally accepted standards. (e) When interviewing a detainee, a Monitor should both encourage frank discussion and observe the detainee’s condition. (f) Monitors should arrange for medical examinations to take place promptly at any time if they have any concerns over a detainee’s physical or mental welfare. (g) The Monitoring Body should obtain as much information as possible about the detainee’s circumstances of detention and treatment, including by inspection of detention facilities, and should arrange to be informed promptly if the detainee is moved from one place of detention to another.” 82. Paragraph 5 provides that, in order to monitor compliance with the right to fair trial, Monitors should have access to all court hearings, subject to the requirements of national security. Paragraph 6 states that monitors should ensure that they are mindful of any specific assurances made by the receiving State in respect of any individual being returned, and should monitor compliance with these assurances. Paragraph 7, on reporting, provides that the Monitoring Body should provide regular frank reports to the sending State and should contact the sending State immediately if its observations warrant. C. Further evidence on the MOU and the Adaleh Centre 1. Mr Layden’s statements 83. In the context of proceedings before this Court, the Government produced two statements from Mr Anthony Layden, a former diplomat and currently United Kingdom Special Representative for Deportation with Assurances. 84. The first statement, dated 24 September 2009, outlined the closeness of ties between the United Kingdom and Jordan, the United Kingdom’s support for various initiatives to enhance human rights in Jordan, as well as various reports (summarised at paragraphs 106–124 below), which showed Jordan’s improving human rights record. 85. The first statement also explained that, after the signature of the MOU, the Governments together assessed which organisation should take on the independent monitoring. The Jordanian Government had proposed the National Centre for Human Rights (NCHR) and, when that body declined, the Jordanian Government suggested Adaleh, which was appointed. The monitoring agreement was signed after representatives from Adaleh met the United Kingdom Foreign Office Minister for the Middle East and North Africa. There was a subsequent meeting between the Secretary of State for the Home Department and the President of Adaleh’s Board of Trustees, Mr Arslan MP, and its founder and President, Mr Rababa. Mr Arslan and Mr Rababa made clear that, despite criticism of their decision to act as monitoring body, they had felt it was important for the protection of human rights. They had not been forced into the role or accepted it for financial benefit. 86. The first statement also outlined Adaleh’s training and human rights awareness activities since it was founded in 2003. It had received funding from a large number of donor agencies but none from the Jordanian Government. It had spoken out against the Government and had prepared a study on combating torture in Jordan, which candidly criticised the Government and the GID. After boycotting their workshops for eighteen months, the GID had been participating in a series of workshops which had started in July 2009. In 2007, Adaleh had participated in four Human Rights Watch visits to the GID’s Amman detention facility. Mr Rababa had also responded in detail to Human Right Watch’s criticism of its ability to monitor the MOU (see paragraphs 91 and 146 below). 87. Mr Layden also stated that the United Kingdom Government had provided grants and funding to Adaleh worth GBP 774,898, which had been directed towards the human rights training for officials and to established a group of experts. As of September 2009, the centre had ten full-time members of staff and twenty part-time medical and legal experts. The centre had expanded to include the National Team to Combat Torture (NTCT), which would act as Monitoring Body. The team had twenty-six members and three Adaleh Centre staff. 88. Mr Layden’s second statement, dated 26 May 2010, reiterated that ties between Jordan and the United Kingdom remained close after the change of Government in the United Kingdom. The statement also provided an overview of recent reforms in Jordan, including changes to the criminal law to introduce more severe penalties for serious crimes such as torture and measures to increase press freedom. The statement also summarised Jordan’s submissions to the United Nations Committee Against Torture in the course of the Committee’ consideration of Jordan’s second periodic report (see paragraph 107 below). 89. In the second statement, Mr Layden rejected any suggestion that there would be no incentive to reveal breaches of the MOU; failure to abide by its terms would be likely to do serious damage to diplomatic relations; action proportionate to any breach would certainly be taken by the United Kingdom Government. For the Adaleh Centre, he stated that there was nothing unusual in the fact that it had not carried out any monitoring in Jordan thus far; it operated on a project basis by developing proposals, seeking funding and implementing initiatives. Its NTCT had already visited Qafqafa prison on 9 May 2010. The Centre was not financially motivated; it had lost money by agreeing to act as the monitoring body. Nor was it a for ‑ profit organisation; it was required to return any surplus for projects to donors. Nothing turned on its change to a limited liability company. 90. Mr Layden also indicated that clarification been sought from the Jordanian Government as to the apparent discrepancy between the English and Arabic versions of the MOU (the Arabic version stating that there would be the right to monitoring for three years after return; the English version stating that, if a returnee was detained within three years of return, he would have the right to monitoring). By the recent exchange of two Note Verbale between the United Kingdom Embassy in Jordan and the Jordanian Government (appended to the statement), the parties had indicated their understanding that: (i) if a returnee was detained within three years of return, the MOU provided for monitoring until such a time as he was released and, potentially, indefinitely; and (ii) a returnee who was detained more than three years after return, would not be entitled to monitoring visits. 2. Mr Wilcke’s statement 91. The applicant submitted a statement from Mr Christophe Wilcke, of Human Rights Watch, which had originally been prepared for the VV case (see paragraph 75 above). Mr Wilcke had conducted visits to various detention facilities in Jordan, which formed the basis for Human Rights Watch’s subsequent report of 8 October 2008 (see paragraph 117 below). Mr Wilcke stated that he was accompanied on one visit by Mr Rababa of the Adaleh Centre. According to Mr Wilcke when they discussed the present applicant’s case, Mr Rababa appeared to be hearing details of the United Kingdom deportation proceedings for the first time. In his statement, Mr Wilcke characterised Adaleh as very small and noted that it had not carried out any independent prison visits and had not tried to do so. Mr Wilcke therefore doubted that the assurances would provide an effective safeguard against ill-treatment of the applicant. 3. Ms Refahi’s statement 92. In a statement of 7 February 2010, prepared specifically for the proceedings before this Court Ms Refahi, the Arabic-speaking barrister who had given evidence before SIAC as to the previous trials in Jordan, set out the discussions she had had with Jordanian lawyers and NGO officers about Adaleh. They told her that Mr Rababa had strong family links to the Jordanian security services. The centre’s change to a for-profit company would have also required the approval of the Ministry of Interior and GID as would Mr Rababa’s nomination to the Board of Trustees of the NCHR. None of those interviewed had any knowledge of the centre before it became the Monitoring Body, it had no practical experience of monitoring and would be unable to prevent ill-treatment. The centre was also said to have behaved erratically in choosing experts for its anti-torture programmes; it had preferred lawyers over physicians and had not chosen individuals with monitoring experience. D. Further evidence on the applicant’s two previous trials and the procedures applicable to any re-trial 93. The parties have also provided extensive evidence on the applicant’s original trials, including evidence which was not before SIAC. 1. Evidence provided by the respondent Government 94. The Government provided a report of 6 September 2009, which had been prepared by two Jordanian lawyers, Mr Al-Khalila and Mr Najdawi, the former Honorary Legal Adviser to the United Kingdom Ambassador to Jordan since 1975. 95. The report outlined the structure of the Jordanian legal system and the various and wide powers of Public Prosecutors whom it characterised as judges with an inquisitorial role. It also outlined the functions of the GID and stated that cooperation between it and the State Security Court was very close. The Public Prosecutor before that court was a military officer whose office was located within GID premises. The report also noted that interrogations by GID officers had the goal of obtaining “confessions” from suspects appearing before the State Security Court (quotation marks in the original). 96. The report stated that the rights of the accused had been enhanced by amendments made in 2001 to the Criminal Code, which it considered to be a “vital point” in its conclusion that the applicant would receive a fair trial. The amendments also meant there could be no flagrant denial of the applicant’s right to liberty because, among other reforms, the maximum period before which a detainee had to be brought before a court or public prosecutor had been reduced to twenty-four hours (Article 100(b) of the Code of Criminal Procedure (CCP). However, the report also noted that it was not possible to determine whether the Public Prosecutor would charge the applicant with new offences, which had been introduced by the Prevention of Terrorism Act 2006 and which would allow for the Public Prosecutor to detain him for fifteen days (renewable for up to two months) for the purposes of investigation. 97. The report also sought to comment on a number of SIAC’s findings in respect of Jordanian law. For instance, SIAC had found that access to a lawyer being neither obligatory nor prohibited and that no lawyers were present during GID interrogations. However, there was an obligation for legal representation before a Public Prosecutor, which could be waived by reasoned decision, for example when there was a need for rapid action to prevent evidence being lost (Article 63(2) of the CCP). The presence of a lawyer was unusual in all questioning by Public Prosecutors. By the same token, although SIAC had made reference to the possibility of incommunicado detention, Article 66(2) of the CCP provided that, any time in which contact with a suspect was restricted, this did not apply to contact with his lawyer. SIAC had also found that, in any retrial, the case file from the first trial would be admitted as evidence and that witnesses would not be recalled for cross-examination; this was incorrect as Article 254 of the CCP only allowed a previous case-file to be used as background, the court could only consider evidence which was led at the trial and the defendant would be able to cross-examine witnesses. 98. The report also commented on the State Security Court, which it said was composed of legal qualified military officers, who did not pursue military careers and were not serving officers. The law on the independence of the judiciary did not apply but nor did they enjoy judicial immunity from prosecution or civil proceedings. Sessions of the court were frequently closed to the public but the defendant would be represented. 99. The report recognized that allegations of torture were difficult to verify because police and security officials frequently denied detainees timely access to lawyers. However, torture, though occasionally used by the police, was not institutionalized, and it remained an “individual action”; if detected, officers were subject to criminal sanctions. A measure of protection was provided to the accused in criminal proceedings by Article 63(3) of the CCP, which required an accused’s statement to be signed and fingerprinted by him. It also had to be verified by the Public Prosecutor and his clerk. If the accused refused to sign his reasons had to be recorded. Article 63(3) was a fundamental requirement, which, if not adhered to, invalidated the statement. A signature and, if the accused was illiterate, a fingerprint, were necessary to show that the statement was that of the accused. Contrary to Ms Refahi’s evidence to SIAC (see paragraph 104 below), there was no evidence that fingerprinting was a clear sign of a false confession. 100. For confessions to the Public Prosecutor, the burden of proof was on the defendant to show that it was not legal; the burden was reversed for confessions to the police. There was a corroboration requirement when the evidence of a co-accused was used against another co-accused. The report also analysed a series of Court of Cassation judgments where it had quashed State Security Court judgments because of improperly obtained confessions. It had also laid down rules as to when confessions would and would not be admitted; where someone had been detained for longer than the prescribed time limit, there was a rebuttable presumption that the confession was improperly obtained. 101. The report went on to examine the judgments that had been given in the applicant’s previous trials. For the Reform and Challenge case, the report noted that, in rejecting some of the defendant’s claims to have been tortured into giving confessions, the State Security Court had relied on the evidence of the coroner, who had stated that he found no injuries on the men. In the millennium conspiracy trial the State Security Court had found no evidence whatsoever to support claims of false confessions made by some of the defendants and, as the defendants’ lawyers had not referred them to the coroner for examination, there was no medical evidence to support their claims. The State Security Court had, however, heard from officers who were present when the confessions were given and who testified that there were no beatings of any sort. The State Security Court in its judgments had relied on the confessions (including reconstructions at the crime scene) and expert evidence. The evidence of the other defendants was likely to be determinative at the applicant’s retrial, as they were important in his trials in absentia. The report also stated that, if alive, Al-Hamasher and Abu Hawsher would give evidence at any retrial. 2. Evidence provided by the applicant 102. For the Reform and Challenge trial, the applicant provided a copy of the Public Prosecutor’s investigation report, which showed that the only evidence against him was the confession of Al-Hamasher. The confession was quoted in the report as stating that the applicant had provided encouragement for the attacks and congratulated the group afterwards. The only other evidence against him which was recorded in the report was that two books the applicant had written were found in the possession of Al ‑ Hamasher and another defendant. The applicant also provided the grounds of appeal of Al-Hamasher which set out his claim that he had been detained and ill-treated for six days in GID custody then brought before the Public Prosecutor in the latter’s office at the GID building. The applicant also produced a letter from the GID to Al-Hamasher’s lawyer which stated that the original videotapes of his interrogation had been destroyed. The grounds of appeal stated that, at trial, a GID officer gave evidence that he had destroyed the tapes on the orders of his superior but refused to reveal the superior’s identity. Al-Hamasher’s grounds of appeal also stated that lawyers for another defendant had witnessed their client telling the Public Prosecutor that he had been ill-treated: the lawyers’ evidence had not been accepted by the State Security Court, which preferred that of the Public Prosecutor. The grounds of appeal also summarised a medical report by a doctor who had examined the defendants five months after their interrogations. The doctor had found bruising and scarring on the men’s bodies, particularly their feet and legs. Given the passage of time, the doctor was unable to conclude how the men’s injuries had been obtained but observed that they could have been caused by the impact of hard objects. In Al-Hamasher’s case, the doctor noted scars on his buttocks, which were consistent with being deliberately hit with a baton or similar object. The grounds of appeal also noted that family members of the defendants, including Al-Hamasher’s mother, had observed scars on the defendants’ feet and legs when they were first allowed to visit them. The GID interrogators were not produced for cross-examination at trial, nor were the defendants’ medical records. 103. For the millennium conspiracy trial, the applicant submitted a copy of the Public Prosecutor’s investigation report in that case, which showed that Abu Hawsher’s confession was the predominant basis of the prosecution case against the applicant. A copy of his defence statement setting out his allegations of torture was also provided, which described injuries to the soles of his feet (causing the skin to fall off when he bathed), facial injuries, bruising and scarring. He maintained that his injuries were witnessed by his brother-in-law, his cellmates and a representative from the International Committee of the Red Cross. He also described how his statement had been changed many times until the officials in charge where satisfied with it. Afterwards, when he had been brought before the Prosecutor and alleged he had been tortured, the Public Prosecutor refused to listen. Letters were also provided which had been written by Abu Hawsher’s lawyer to the applicant’s representative, Ms Peirce, which summarised the steps the defence teams had taken to bring the torture allegations made by various defendants to the attention of the State Security Court, including the protests made by the United States Embassy concerning the ill-treatment of one defendant, Mr Ra’ed Hijazi, a US ‑ Jordanian national (see also Amnesty’s report at paragraph 114 below). The letter also stated that the defendants’ families had testified as to the injuries they had seen. 104. The applicant also provided two statements on the trials by Ms Refahi: that which had been before SIAC and her further statement of 7 February 2010. The first statement, of 5 May 2006, set out the results of her interviews with defence lawyers and released defendants in each trial as to the manner in which the defendants had been tortured and given completed confession statements to sign. The torture was said to have include beatings with belts and whips, sleep deprivation and the administration of drugs to weaken resistance. She was told that, for false confessions, in was the practice to have the detainee sign and fingerprint the statement to prevent him retracting it later. Ms Refahi had inspected the case file in each case: Abu Hawsher’s confession was fingerprinted. 105. The statement of 7 February 2010, summarised the results of a further visit she had made to Jordan in September 2009, where she had carried out further interviews with defendants and their lawyers. ‘Defendant A’ in the Reform and Challenge trial said he had been tortured for ten days (including through beatings on the soles of his feet) and questioned under torture on two or three occasions. While being moved he had heard a voice he recognised as belonging to another defendant; it was clear this defendant was also being tortured. On the tenth day he signed a confession drafted by the GID. On the eleventh day he was brought before the Public Prosecutor, who had the GID confession before him. He then signed an identical confession which had been drafted by the Public Prosecutor. There was no more torture after this but, on subsequent occasions when he appeared before the Public Prosecutor, the Prosecutor threatened him with further torture. He had told the State Security Court that he had been tortured but the court did not investigate. He was not medically examined until he had been detained for five months. IV. HUMAN RIGHTS IN JORDAN A. United Nations reports 1. The Human Rights Council 106. The United Nations Human Rights Council the Working Group on Jordan’s Universal Periodic Review delivered its report on 3 March 2009 (A/HRC/11/29). The report noted Jordan’s acceptance of certain recommendations geared towards eradicating torture. Following the report, Human Rights Watch welcomed Jordan’s satisfaction at the “constant review” of its human rights standards but found Jordan’s rejection of some important recommendations geared towards eradicating torture to be “deeply disappointing”. The organisation called on Jordan to implement quickly recommendations to set up independent complaints mechanisms, allow unannounced prison visits and abolish the Police Courts, which were composed of police officers who heard allegations of torture against fellow officers. Similar recommendations were made by the United Kingdom Government in their statement to the Human Rights Council. 2. The Committee Against Torture 107. The United Nations Committee Against Torture, in its concluding observations on Jordan of 25 May 2010, welcomed Jordan’s ongoing reform efforts, which included the establishment of the National Centre for Human Rights, an independent Ombudsman to receive complaints and a comprehensive plan for the modernisation of detention facilities. However, it was also deeply concerned by the “numerous, consistent and credible allegations of a widespread and routine practice of torture and ill-treatment of detainees in detention facilities, including facilities under the control of the General Intelligence Directorate”. It also found a “climate of impunity” and an absence of proper criminal prosecutions for perpetrators. The Committee also expressed its concern at the limited number of investigations into allegations of torture and its serious concern at the lack of fundamental legal safeguards for detainees and the overuse of administrative detention, which placed detainees beyond judicial control. The Committee also recommended that the GID be placed under civilian authority, given that it continued to detain suspects arbitrarily and incommunicado and to deprive detainees of access to judges, lawyers or doctors. The Committee was also gravely concerned by the special court system in Jordan, which included the State Security Court, where military and security personnel alleged to be responsible for human rights violations were reportedly shielded from legal accountability and where procedures were not always consistent with fair trial standards. Finally, in respect of Article 15 of the Convention against Torture, the Committee found: “While noting the existence of article 159 of the Criminal Procedure Code [the exclusion of evidence obtained under duress] which does not refer explicitly to torture, the Committee expressed its concern at reports that the use of forced confessions as evidence in courts is widespread in the State party. ... The State party should take the necessary steps to ensure inadmissibility in court of confessions obtained as a result of torture in all cases in line with the provisions of article 15 of the Convention. The Committee requests the State party to firmly prohibit admissibility of evidence obtained as a result of torture in any proceedings, and provide information on whether any officials have been prosecuted and punished for extracting such confessions.” 3. The Human Rights Committee 108. The United Nations Human Rights Committee’s concluding observations of 18 November 2010 also praised Jordan’s reforms, including the incorporation into domestic law of the ICCPR. However, the Human Rights Committee’s concerns included: the high number of reported cases of torture and ill-treatment in detention centres, particularly in GID facilities; the absence of a genuinely independent complaints mechanism to deal with cases of alleged torture or ill-treatment by public officials, as well as the low number of prosecutions of such cases; the denial of prompt access to a lawyer and independent medical examinations to detainees; and the fact that NGOs had been denied access to detention facilities. Accordingly, the Committee recommended the establishment of an effective and independent mechanism to deal with allegations of torture; proper investigations and prosecutions; immediate access for detainees to a lawyer of their choice and an independent medical examination; and the creation of a system of independent visits to all places of deprivation of liberty. The Committee also expressed its concern at the limited organisational and functional independence of the State Security Court and recommended its abolition. 4. The Special Rapporteur 109. In his report of 5 January 2007 to the Human Rights Council, the UN Special Rapporteur on Torture, Manfred Nowak, noted inter alia that the GID had refused to allow him private visits with detainees and concluded that: “Many consistent and credible allegations of torture and ill-treatment were brought to the attention of the Special Rapporteur. In particular, it was alleged that torture was practised by General Intelligence Directorate (GID) to extract confessions and obtain intelligence in pursuit of counter-terrorism and national security objectives, and within the Criminal Investigations Department (CID), to extract confessions in the course of routine criminal investigations. Given that these two facilities were the ones most often cited as the two most notorious torture centres in Jordan, on the basis of all the evidence gathered, the denial of the possibility of assessing these allegations by means of private interviews with detainees in GID, and taking into account the deliberate attempts by the officials to obstruct his work, the Special Rapporteur confirms that the practice of torture is routine in GID and CID... Moreover, in practice the provisions and safeguards laid out in Jordanian law to combat torture and ill-treatment are meaningless because the security services are effectively shielded from independent criminal prosecution and judicial scrutiny as abuses by officials of those services are dealt with by special police courts, intelligence courts and military courts, which lack guarantees of independence and impartiality.” 110. In this context, the Rapporteur also found : “57. The Special Rapporteur reports that no ex officio investigations are undertaken even in the face of serious injuries sustained by a criminal suspect; not one official could demonstrate to the Special Rapporteur serious steps taken to investigate allegations, including at the very least the prompt and timely medical documentation of injuries sustained by detainees... 60. Paradoxically, while law enforcement officials maintain that torture allegations are unheard of within their institutions, the Court of Cassation has overturned a number of convictions on the grounds that security officials had obtained confessions from defendants under torture. Regrettably even these findings do not spur any official investigations into wrongdoings by officials and none of the security officials involved in these cases have ever been brought to justice. 61. What is more, the decisions and rulings of the Court of Cassation related to cases where criminal suspects are prosecuted under special courts are at the same time cited by government officials to defend the system, pointing to the existence of independent oversight in the form of appeals of special court decisions to the Court. 62. However, with respect to the question of impunity and the prosecution by special courts of police or intelligence officers for torture or ill-treatment, no evidence has been produced to indicate examples of where special court acquittals of police officers have been successfully appealed to the Court of Cassation, if appealed at all. 63. This leads to the conclusion that impunity is total. The special court system does not work effectively at all. The absence of a crime of torture in accordance with article 1 of the Convention against Torture is only part of the problem. At the heart of it lies a system where the presumption of innocence is illusory, primacy is placed on obtaining confessions, public officials essentially demonstrate no sense of duty, and assume no responsibility to investigate human rights violations against suspected criminals, and the system of internal special courts serves only to shield security officials from justice. (footnotes omitted)” 111. The Rapporteur recommended the introduction of a series of basic safeguards for detainees, including better rules governing the admissibility of confessions. He also recommended the abolition of the State Security Court. B. Other reports 1. Amnesty International 112. Amnesty International has produced a number of reports on the treatment of detainees in Jordan. Its most extensive report was published in July 2006, Amnesty International published its report entitled “Jordan: ‘Your confessions are ready for you to sign’: detention and torture of political suspects”. The report criticised Jordan for maintaining a system of incommunicado detention which facilitated torture, particularly under the auspices of the GID, where torture was systemic and practised with impunity. The scope for abuse by the GID was far greater because GID officers were granted the authority of public prosecutors (and thus judicial power), allowing the GID itself to prolong periods of detention for the purposes of interrogation. It was a virtually impossible task for a detainee to prove he had been tortured by the GID when it was the detainee’s word against that of GID officers. The report considered that the introduction of monitoring by the NCHR and the ICRC were positive if qualified steps and both organisations had been prevented from meeting all detainees in GID custody. 113. Although the 2001 amendments to Article 66 of the Code of Criminal Procedure had allowed detainees access to their lawyers, even when in incommunicado detention, in apparent contravention of these provisions, the general practice in state security cases was for detainees to be held in prolonged pre-trial incommunicado detention. There were also apparent contraventions of the right to have a lawyer present during examinations before the Public Prosecutor. The State Security Court had been “largely supine” in the face of torture allegations, failing properly to investigate allegations. Trials before it were frequently unfair; it was prone to convict defendants on the basis of confessions alleged to be extracted by torture. The report noted that, over the previous ten years, one hundred defendants had alleged before the State Security Court that they had been tortured into making confessions; allegations had been made in fourteen such cases in 2005, yet the State Security Court had failed adequately to investigate the claims. Appeal to the Court of Cassation had not been an adequate safeguard. 114. The report described nine case studies of confessions extracted by torture by the GID in state security cases, including that of the millennium conspiracy trial. The report recorded that at least four of the defendants, including Abu Hawsher, had been tortured during GID interrogation, their bodies reportedly showing marks of torture when relatives and lawyers saw them for the first time. Witnesses testified that, in the course of a reconstruction at the crimes scenes, they had seen one defendant, Mr Sa’ed Hijazi, propped up by two guards apparently unable to stand on his own. In the case of another, Mr Ra’ed Hijazi, (a US-Jordanian national) a doctor had testified that he had contracted severe pneumonia whilst held in incommunicado detention. The United States consul, who was said to have seen marks of torture on him, could not give evidence at trial for reasons of diplomatic immunity. 115. The report also concluded that the MOU between the UK and Jordan was inappropriate given Jordan’s failure to observe the absolute prohibition on torture and, moreover, post-monitoring return could not replace the requirements of international law that there be systemic legislative, judicial and administrative safeguards to prevent torture. Monitoring, even by professional organisations, was insufficient to prevent it. 2. Human Rights Watch 116 In its report “Suspicious Sweeps: the General Intelligence Department and Jordan’s Rule of Law Problem” of 18 September 2006 the organisation documented cases of ill-treatment by the GID. The report also contained the following section on prosecutors before the State Security Court : “The SSC is a special court established pursuant to Articles 99 and 100 of Jordan’s constitution. ... The head of the Joint Chiefs of Staff appoints a military officer to serve as prosecutor, underlining the court’s subordinate character. The SSC prosecutor’s offices are physically located inside the central GID complex. The SCC [sic] prosecutor is the officer who issues charges against detainees and authorizes their continued detention. The SSC prosecutor who investigates the crimes of which detainees at the GID are accused is a military officer, ultimately under the same administrative authority as the intelligence officials. This reflects a fundamental lack of independence and impartiality. ... Article 7 of the SSC law provides that people who are being investigated with a view to prosecuting them for a crime for which the SCC enjoys jurisdiction can be detained ‘where necessary for a period not exceeding seven days’ before being brought before the prosecutor to be charged. The prosecutor can extend the detention warrant for renewable periods of fifteen days after charging a suspect, if it is ‘in the interest of the investigation.’ A practicing defense lawyer told Human Rights Watch that ‘it is normal for detainees to remain at the GID for around six months. They are transferred to a normal prison or released when the GID has finished its investigation.’ Under Jordanian law, although the prosecutor is formally in charge of an investigation once charges are filed, in matters before the SCC the practice is for the prosecutor to delegate responsibility to GID officers to continue the investigation, including interrogation. All the detainees interviewed by Human Rights Watch recalled that during their time in detention they met only with GID staff, except for when they were brought before the prosecutor to be charged. However, several detainees made clear that they were unable with certainty to distinguish between GID officers and officers from the prosecutor’s office, since all wear civilian clothes, conduct interrogations in a similar fashion, and are located in close proximity. The prosecutor is also the legal authority for detainees’ complaints regarding cruel or inhuman treatment or torture. Jordanian law requires any official, including GID officers, to accept and transmit complaints to their superiors. The role of the prosecutor includes investigating complaints that allege a breach of the law. The fundamental lack of independence of the prosecutor within the GID and SCC structures renders this role wholly ineffective. Samih Khrais, a lawyer who has defended tens of clients before the State Security Court, told Human Rights Watch: ‘The prosecutor will send a detainee back to the cell if he says he confessed under torture.’ Khrais said that because of the prosecutor’s role in the process before the SCC, and the rules that make statements obtained under torture inadmissible in court, the SCC prosecutors are disinclined to act on any complaints of torture. One detainee, Mustafa R., who said he was tortured both before and after being charged, told Human Rights Watch that when he was brought before the prosecutor to be charged he was alone with the prosecutor in his office in the GID complex while a car with his interrogators waited outside to take him back to his cell. The prosecutor did not make any inquiry as to whether illegal force or coercion were used against Mustafa R. during his interrogation. Another former detainee, Muhammad al-Barqawi, told Human Rights Watch that if a detainee demands a lawyer or alleges torture, the prosecutor sends the detainee back for more interrogation, saying ‘He’s not ready yet.’” 117. In its report of 8 October 2008, “Torture and Impunity in Jordan’s Prisons”, which was based on prisons visits it had carried out in 2007 and 2008, Human Rights Watch concluded that torture remained widespread and routine in Jordan’s prisons. The organisation received allegations of ill ‑ treatment from 66 of the 110 prisoners it interviewed. It also concluded that prison guards tortured inmates because prosecutors and judges did little to pursue them. The report noted that willingness of the Jordanian Government to grant access to prisons was commendable and reflected a positive commitment to reform. However, the report also noted that the public concern of Jordanian leadership had not shown lasting effects on the ground. Torture was inflicted routinely when prisoners broke prison rules, made requests for doctors, telephone calls or visits, or make complaints. Islamist prisoners faced greater abuse than others. Complaints of torture had decreased but remained a common occurrence. Torture was not a general policy, although high-ranking prison officials had ordered beatings. Torture was a “tolerated practice” because mechanisms for individual accountability were lacking; the Government had quietly taken some initial steps to provide greater opportunities for redress, but had not vigorously pursued them. 118. In the section of its World Report of 2010 on Jordan, Human Rights Watch also commented that further positive reforms such as the NCHR anti ‑ torture training programmes, were far from sufficient considering Jordan’s lack of political will and effective mechanisms to bring perpetrators to justice. 3. The Jordanian National Centre for Human Rights 119. In its 2005 Annual Report, the NCHR recognised that although, Jordanian law was clear as to the illegality of a conviction based on a confession which had been obtained by coercion, it was difficult for defendants to prove that confessions had been so obtained, especially given the lack of witnesses and long periods of detention which meant that forensic physicians could not detect abuse. 120. In its 2007 Report the NCHR noted that information on criminal trials revealed “a clear shortcoming - in many cases - in commitment to the basic criteria of a just trial”. It referred in particular to the trying of civilians before the State Security Court whose judges were “militarily incline[d]”, which undermined the principle of judicial independence and reduced the guarantees of a fair trial. 121. In its 2008 Report the NCHR noted the continuing difficulties in detecting torture, including the prolonged period of detention for which detainees were held and the fact that those responsible for coercion of defendants did not write out their statements, meaning the statements became legally conclusive evidence. The NCHR also noted that, for part of the year, it had been banned from visiting prisons. There had, however, been a number of positive anti-torture measures introduced by the Government. 122. In its 2009 Report, the NCHR noted that anti-torture efforts were still “mediocre and hesitant”. Problems included the Crime Prevention Law, which allowed incommunicado detention without judicial monitoring; the State Security Act, which allowed detention for seven days before referral to a judge; and that a statement made by a suspect without the presence of the Public Prosecutor was admissible if it was “submitted to the public prosecution along with a piece of evidence for the circumstances under which it has been made, and that the suspect has made that statement voluntarily.” 4. United States Department of State 123. The United States Department of State 2009 Human Rights Report on Jordan recorded local and international NGOs’ concerns that torture remained widespread, although they had also noted a decrease in the number of complaints made. The NGOs has also found that complaints mechanisms had improved but additional reforms were required. The report also stated: “Unlike in prior years, there were no new public claims of torture by defendants before the State Security Court. On April 15, three of five men who claimed to have been tortured from 2007 to May 2008 received five-year sentences. The other two men were acquitted due to lack of evidence. The government found their torture claims baseless, as they also found the January 2008 torture claims of two men accused of exporting weapons to the West Bank whose criminal cases were ongoing at year’s end. On May 14, the State Security Court sentenced Nidal Momani, Tharwat Draz, and Sattam Zawahra to death for plotting to kill a foreign leader while visiting the country in 2006, but it immediately commuted their sentences to 15 years’ imprisonment. In 2007 and 2008, the defendants claimed they had been beaten and psychologically pressured to confess.” 124. The 2010 Report recorded that Jordanian law prohibited torture; however, international NGOs continued to report incidences of torture and widespread mistreatment in police and security detention centres. In respect of arrest and trial procedures, the Report noted that: “The State Security Court gives judicial police, charged with conducting criminal investigations, authority to arrest and keep persons in custody for 10 days. This authority includes arrests for alleged misdemeanors. In cases purportedly involving state security, the security forces arrested and detained citizens without warrants or judicial review, held defendants in lengthy pretrial detention without informing them of the charges against them, and did not allow defendants to meet with their lawyers or permitted meetings only shortly before trial. Defendants before the State Security Court usually met with their attorneys at the start of a trial or only one or two days before. A case may be postponed for more than 48 hours only under exceptional circumstances determined by the court. In practice, cases routinely involved postponements of more than 10 days between sessions with proceedings lasting for several months. In most cases the accused remained in detention without bail during the proceedings. Several inmates were in detention without charge at year’s end.” The Report also commented that Jordanian law provided for an independent judiciary; however, the judiciary’s independence in practice was compromised by allegations of nepotism and the influence of special interests. | The applicant, a Jordanian national, suspected of having links with al-Qaeda, alleged in particular that he faced a real risk of suffering a flagrant denial of justice in the event of his deportation, on account of the possible use in his new trial of evidence obtained by torture. |
741 | Noise pollution | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1947 and lives in Pabianice. She owns a semi ‑ detached house located in a residential area. A tailoring workshop employing about 20 people was located in the other half of the building. 6. On 1 4 September 1993 the applicant made an application to the City Council for a ban on the operation of the workshop or at least for measures to be taken to reduce the level of noise it generated. 7. On 11 June 199 4 the Director of the Pabianice District Office, to which the application of 1 4 September 1993 must have been transferred, issued a decision in which it found that the workshop was operating without the required permission. He obliged the owner of the workshop to take steps to remedy the situation, inter alia by obtaining an environmental impact assessment of the workshop and by carrying out adaptation works. 8. On 30 January 1995 the Governor of Łódź approved a “ [ t ] echnical project on protection of the environment against noise”, and obliged the owner to comply with the project and to submit an evaluation of the noise level. 9. On 7 February 1995 the Governor of Łódź approved the location of the workshop on condition that the owner complied with the requirements set out in the decision of 30 January 1995. 10. On 15 March 1995 the Director of the Construction Supervision Department of the Town Office gave instructions as to the way in which the works to adapt the workshop should be conducted. The applicant appealed. 11. On 4 April 1995 the applicant lodged an appeal with the Governor of Łódź in which she complained that she had not been allowed to participate in the proceedings. She submitted that she should have been treated as a party to them and that she had not received an answer to her application of 14 September 1993. 12. On 11 May 1995 the applicant made an application to the Minister of Environment for the proceedings – which must have been discontinued on an unspecified earlier date – to be reopened in order to enable her to participate as a party to the proceedings in order to have her arguments taken into consideration. 13. On 17 May 1995 the Governor of Łódź stayed the appeal proceedings against the decision of 15 March 1995 until the request for reopening of 11 May 1995 had been considered. The workshop ’ s owner appealed. 14. On 7 August 1995 the General Inspector of Construction Supervision quashed the decision of 17 May 1995. 15. On 20 October 1995 the Governor of Łódź stayed the appeal proceedings against the decision of 15 March 1995. The workshop ’ s owner appealed. 16. On 15 December 1995 the General Inspector of Construction Supervision upheld the decision of 20 October 1995. The applicant appealed. 17. On 25 February 1997 the applicant made an application to the Governor of Łódź requesting, inter alia, that the decisions of 7 August 1995 and 15 December 1995 be quashed and that the operation of the workshop be stayed until a decision was made on the merits of her request of 1993. 18. On 1 4 November 1997 the Minister of Environment quashed the decisions of 7 August 1995 and 30 January 1995. In the written grounds he stated that the noise pollution inside the applicant ’ s home was not a matter of environmental protection, so that there was no legal basis for the proceedings to be instituted. The applicant appealed to the Supreme Administrative Court. 19. In a letter of 12 January 1998 to the Director of the Pabianice District Office the applicant requested that the appeal proceedings against the decision of 15 March 1995 be stayed until the appeal against the decision of 1 4 November 1997 lodged with the Supreme Administrative Court had been decided. On 30 January 1998 the Governor of Łódź, to whom this request must have been transmitted, stayed the proceedings as requested. The applicant ’ s neighbour appealed. 20. On 18 March 1998 the General Inspector of Construction Supervision quashed the decision of 30 January 1998 and remitted the case for reconsideration. 21. On 26 August 1998 the Governor of the Town of Łódź upheld the decision of 15 March 1995 and set a new time-limit for the workshop ’ s owner to comply with the imposed obligations. 22. On 25 November 1998 the Director of the Pabanice District Office granted permission for the operation of the workshop. The applicant appealed. On 23 March 1999 the Governor of Łódź quashed the decision of 25 November 1998 and remitted the case for reconsideration. The workshop ’ s owner appealed. 23. On 13 November 2001 proceedings were instituted to determine whether the operation of the workshop was lawful. On the same day the applicant was informed that on 13 December 2001 an inspection of the building would be carried out. On the same day the Supreme Administrative Court dismissed the owner ’ s appeal against the decision of 23 March 1999. 24. On 29 November 2001 the Mayor of Pabianice stayed the proceedings concerning the granting of permission until the Pabianice District Inspector of Construction Supervision had given a decision as to whether the operation of the workshop complied with the applicable legal requirements. The applicant appealed. 25. On 8 March 2002 the Mayor of Pabianice issued an operation permit for the workshop. The applicant appealed. On 26 April 2002 the Governor of Łódź informed the applicant that the time-limit set by law to decide on her appeal had been extended because of the need for checks to be done by the building inspection authorities. 26. On 7 June 2002 the Governor of Łódź upheld the decision of 8 March 2002. The applicant lodged a complaint with the Supreme Administrative Court. 27. By a decision of 29 October 200 2 the Pabianice District Inspector of Construction Supervision authorised the operation of the workshop. The applicant appealed. 28. On 25 February 2003 the Supreme Administrative Court quashed the decision of 7 June 2002 and the preceding decision of 8 March 2002. It observed that noise evaluation tests were necessary for a decision allowing the operation of the workshop. Such tests had already been carried out in the case, but not in an appropriate manner. They should have been carried out during the working hours of the workshop and at different times and should have allowed for the applicant ’ s involvement to enable her to put forward her arguments to the person conducting the tests. 29. On 18 March 2003 the Pabianice Inspector of Construction Supervision stayed the proceedings concerning the permission to operate the workshop. The applicant appealed and they were resumed at an unspecified later date. 30. On 3 July 2003 the Mayor of Pabianice issued a decision obliging the workshop ’ s owner to supplement the submitted documentation by, inter alia, submitting an evaluation of the noise level before 30 September 2003. 31. On 29 October 2003 the District Inspector of Construction Supervision gave permission to operate the workshop on the basis of noise evaluation tests carried out by a certain S.K. The applicant appealed, challenging the soundness of the outcome of the tests and the way they had been carried out. 32. On 28 January 2004 the Łódź Regional Inspector of Construction Supervision quashed the decision of 29 October 2003, finding that the applicant had not been given an opportunity to be sufficiently involved in the noise evaluation tests. 33. On 22 October 2004 the applicant lodged a complaint with the Łódź Regional Inspector of Construction Supervision about inactivity on the part of the Pabianice District Inspector of Construction Supervision, to whom the case had been remitted for reconsideration on the strength of the decision of 28 January 2004. 34. On 20 October 2004 the Łódź Regional Inspector of Construction Supervision gave a decision in which it found inactivity on the part of the Pabianice District Inspector of Construction Supervision and obliged him to give a decision by 20 February 2005. 35. On 1 4 January 2005 the applicant lodged a complaint with the General Inspector of Construction Supervision about the administration ’ s failure to act in her case. 36. By a decision of 7 March 2005 the General Inspector of Construction Supervision stated that no inactivity on the part of the Łódź Regional Inspector of Construction Supervision had been found. 37. On 18 March 2005 the Pabianice District Inspector of Construction Supervision stayed the proceedings concerning the request for permission to operate, pending the outcome of noise tests to be carried out by the Regional Inspector of Environmental Protection. The applicant appealed. On 23 June 2005 the Łódź Regional Inspector of Construction Supervision allowed her appeal, quashed the decision staying the proceedings and ordered that they should be conducted further. 38. On 2 7 July 2005 the applicant complained to the administrative court about the District Inspector ’ s failure to take any steps to have a proper noise evaluation carried out and to give a decision on the merits of the case. In his reply of 25 August 2005 the Regional Inspector summarised the developments in the proceedings since the applicant ’ s complaint of 22 October 2004 and reiterated that the proceedings were, after its decision of 23 June 2005, pending before the first-instance authority. It noted that the applicant ’ s appeal against the decision of 18 March 2005 to stay the proceedings was fully justified. 39. By a judgment of 20 October 2005 the Łódź regional administrative court partly allowed the applicant ’ s complaint and set a one-month time ‑ limit for the District Inspector to give a decision. It summarised the conduct of the proceedings since its judgment of 25 February 2003. It further observed that the proceedings had been conducted exceedingly slowly and that no valid justification for this unreasonable delay had been adduced by the administrative authorities. 40. The proceedings are pending. | The applicant, who lived in a semi-detached house in a residential area, complained that the authorities had failed to protect her home from the noise emanating from a tailoring workshop located in an adjacent building. She had brought proceedings against her neighbour to have the workshop closed or to have measures taken to reduce the level of noise. The proceedings were still pending before a regional administrative court. |
705 | Dissolution or prohibition of political parties or associations | I. THE CIRCUMSTANCES OF THE CASE A. The applicants 10. The first applicant, Refah Partisi (the Welfare Party – “Refah”), was a political party founded on 19 July 1983. It was represented by its chairman, Mr Necmettin Erbakan, who is also the second applicant. He was born in 1926 and lives in Ankara. An engineer by training, he is a politician. At the material time he was a member of Parliament and Refah’s chairman. The third applicant, Mr Şevket Kazan, who was born in 1933, lives in Ankara. He is a politician and a lawyer. At the material time he was a member of Parliament and a vice-chairman of Refah. The fourth applicant, Mr Ahmet Tekdal, who was born in 1931, lives in Ankara. He is a politician and a lawyer. At the material time he was a member of Parliament and a vice-chairman of Refah. 11. Refah took part in a number of general and local elections. In the local elections in March 1989 Refah obtained about 10% of the votes and its candidates were elected mayor in a number of towns, including five large cities. In the general election of 1991 it obtained 16.88% of the votes. The sixty-two MPs elected as a result took part between 1991 and 1995 in the work of Parliament and its various committees, including the Committee on Constitutional Questions, which proposed amendments to Article 69 of the Constitution that became law on 23 July 1995. During the debate in Parliament on the new sixth paragraph of Article 69 of the Constitution (see paragraph 45 below) the chairman of the Committee on Constitutional Questions explained when he presented the draft it had prepared that the Constitutional Court would not restrict itself to noting the unconstitutional nature of the individual acts of the members of a party but would then be obliged to declare that the party concerned had become a centre of anti ‑ constitutional activities on account of those acts. One MP, representing the parliamentary group of the Motherland Party, emphasised the need to change the relevant provisions of Law no. 2820 on the regulation of political parties to take account of the new sixth paragraph of Article 69 of the Constitution. Ultimately, Refah obtained approximately 22% of the votes in the general election of 24 December 1995 and about 35% of the votes in the local elections of 3 November 1996. The results of the 1995 general election made Refah the largest political party in Turkey with a total of 158 seats in the Grand National Assembly (which had 450 members at the material time). On 28 June 1996 Refah came to power by forming a coalition government with the centre-right True Path Party (Doğru Yol Partisi), led by Mrs Tansu Ciller. According to an opinion poll carried out in January 1997, if a general election had been held at that time, Refah would have obtained 38% of the votes. The same poll predicted that Refah might obtain 67% of the votes in the general election to be held roughly four years later. B. Proceedings in the Constitutional Court 1. Principal State Counsel’s submissions 12. On 21 May 1997 Principal State Counsel at the Court of Cassation applied to the Turkish Constitutional Court to have Refah dissolved on the grounds that it was a “centre” ( mihrak ) of activities contrary to the principles of secularism. In support of his application, he referred to the following acts and remarks by certain leaders and members of Refah. – Whenever they spoke in public Refah’s chairman and other leaders advocated the wearing of Islamic headscarves in State schools and buildings occupied by public administrative authorities, whereas the Constitutional Court had already ruled that this infringed the principle of secularism enshrined in the Constitution. – At a meeting on constitutional reform Refah’s chairman, Mr Necmettin Erbakan, had made proposals tending towards the abolition of secularism in Turkey. He had suggested that the adherents of each religious movement should obey their own rules rather than the rules of Turkish law. – On 13 April 1994 Mr Necmettin Erbakan had asked Refah’s representatives in the Grand National Assembly to consider whether the change in the social order which the party sought would be “peaceful or violent” and would be achieved “harmoniously or by bloodshed”. – At a seminar held in January 1991 in Sivas, Mr Necmettin Erbakan had called on Muslims to join Refah, saying that only his party could establish the supremacy of the Koran through a holy war (jihad) and that Muslims should therefore make donations to Refah rather than distributing alms to third parties. – During Ramadan Mr Necmettin Erbakan had received the heads of the Islamist movements at the residence reserved for the Prime Minister, thus assuring them of his support. – Several members of Refah, including some in high office, had made speeches calling for the secular political system to be replaced by a theocratic system. These persons had also advocated the elimination of the opponents of this policy, if necessary by force. Refah, by refusing to open disciplinary proceedings against the members concerned and even, in certain cases, facilitating the dissemination of their speeches, had tacitly approved the views expressed. – On 8 May 1997 a Refah MP, Mr İbrahim Halil Çelik, had said in front of journalists in the corridors of the parliament building that blood would flow if an attempt was made to close the “ İmam-Hatip ” theological colleges, that the situation might become worse than in Algeria, that he personally wanted blood to flow so that democracy could be installed in the country, that he would strike back against anyone who attacked him and that he would fight to the end for the introduction of Islamic law (sharia). – The Minister of Justice, Mr Şevket Kazan (a Refah MP and vice-chairman of the party), had expressed his support for the mayor of Sincan by visiting him in the prison where he had been detained pending trial after being charged with publicly vindicating international Islamist terrorist groups. Principal State Counsel further observed that Refah had not opened any disciplinary proceedings against those responsible for the above-mentioned acts and remarks. 13. On 7 July 1997 Principal State Counsel submitted new evidence against Refah to the Constitutional Court. 2. The applicants’ defence 14. On 4 August 1997 Refah’s representatives filed their defence submissions, in which they relied on international human-rights protection instruments, including the Convention, pointing out that these instruments formed part of Turkish written law. They further referred to the case-law of the Commission, which had expressed the opinion that Article 11 of the Convention had been breached in the cases concerning the United Communist Party of Turkey and the Socialist Party, and to the case-law of the Court and the Commission on the restrictions on freedom of expression and freedom of association authorised by the second paragraphs of Articles 10 and 11 of the Convention. They contended that the dissolution of Refah was not prompted by a pressing social need and was not necessary in a democratic society. Nor, according to Refah’s representatives, was their party’s dissolution justified by application of the “clear and present danger” test laid down by the Supreme Court of the United States of America. 15. Refah’s representatives further rejected Principal State Counsel’s argument that the party was a “centre” of activities which undermined the secular nature of the Republic. They submitted that Refah was not caught by the criteria laid down in the Law on the regulation of political parties for determining whether a political party constituted a “centre of anti ‑ constitutional activities”. They observed, inter alia, that the prosecuting authorities had not issued any warning to Refah (which had four million members) that might have enabled it to expel any of its members whose acts had contravened the provisions of the Criminal Code. 16. Refah’s representatives also set out their point of view on the concept of secularism. They asserted that the principle of secularism implied respect for all beliefs and that Refah had shown such respect in its political activity. 17. The applicants’ representatives alleged that in accusing Mr Necmettin Erbakan of supporting the use of force to achieve political ends and of infringing the principle of secularism the prosecuting authorities had merely cited extracts from his speeches which they had distorted and taken out of context. Moreover, these remarks were covered by Mr Necmettin Erbakan’s parliamentary immunity. They further noted that the dinner he had given to senior officials of the Religious Affairs Department and former members of the theology faculty had been presented by Principal State Counsel as a reception organised for the leaders of Islamist fundamentalist movements, which had in any event been legally proscribed since 1925. 18. With regard to the remarks of the other Refah leaders and members criticised by Principal State Counsel’s Office, Refah’s representatives observed that these did not constitute any criminal offence. They asserted that none of the MPs whose speeches had been referred to by Principal State Counsel was authorised to represent Refah or held office within the party and claimed that the prosecuting authorities had not set in motion the procedure laid down in the Law on the regulation of political parties so as to give Refah the opportunity, if the need arose, to decide whether or not the persons concerned should continue to be members of the party; the first time Refah’s leadership had been informed of the remarks criticised in the case had been when they read Principal State Counsel’s submissions. The three MPs under attack had been expelled from the party, which had thus done what was necessary to avoid becoming a “centre” of illegal activities within the meaning of the Law on the regulation of political parties. 3. The parties’ final submissions 19. On 5 August 1997 Principal State Counsel filed his observations on the merits of the case with the Constitutional Court. He submitted that according to the Convention and the case-law of the Turkish courts on constitutional-law issues nothing obliged States to tolerate the existence of political parties that sought the destruction of democracy and the rule of law. He contended that Refah, by describing itself as an army engaged in a jihad and by openly declaring its intention to replace the Republic’s statute law by sharia, had demonstrated that its objectives were incompatible with the requirements of a democratic society. Refah’s aim to establish a plurality of legal systems (in which each group would be governed by a legal system in conformity with its members’ religious beliefs) constituted the first stage in the process designed to substitute a theocratic regime for the Republic. 20. In their observations on the merits of the case, Refah’s representatives again argued that the dissolution of their party could not be grounded on any of the restrictions permitted by the second paragraph of Article 11 of the Convention. They went on to say that Article 17 was not applicable in the case, as Refah had nothing in common with political parties which sought to install a totalitarian regime. Furthermore, the plurality of legal systems which their party proposed was actually intended to promote the freedom to enter into contracts and the freedom to choose which court should have jurisdiction. 21. On 11 November 1997 Principal State Counsel submitted his observations orally. On 18 and 20 November 1997 Mr Necmettin Erbakan submitted his oral observations on behalf of Refah. 4. The Constitutional Court’s judgments 22. In a judgment of 9 January 1998, which it delivered following proceedings on preliminary issues it had instituted of its own motion as the court dealing with the merits, the Constitutional Court ruled that, regard being had to Article 69 § 6 of the Constitution, the second paragraph of section 103 of the Law on the regulation of political parties was unconstitutional and declared it null and void. Article 69 § 6, taken together with section 101(d) of the same Law, provided that for a political party to be considered a “centre” of activities contrary to the fundamental principles of the Republic its members had to have been convicted of criminal offences. According to the Constitutional Court, that legal restriction did not cover all cases where the principles of the Republic had been flouted. It pointed out, among other observations, that after the repeal of Article 163 of the Criminal Code activities contrary to the principle of secularism no longer attracted criminal penalties. 23. On 16 January 1998 the Constitutional Court dissolved Refah on the ground that it had become a “centre of activities contrary to the principle of secularism”. It based its decision on sections 101(b) and 103(1) of Law no. 2820 on the regulation of political parties. It also noted the transfer of Refah’s assets to the Treasury as an automatic consequence of dissolution, in accordance with section 107 of Law no. 2820. 24. In its judgment the Constitutional Court first dismissed the preliminary objections raised by Refah. In that connection it held that the parliamentary immunity of the MPs whose remarks had been mentioned in Principal State Counsel’s submissions of 21 May 1997 had nothing to do with consideration of an application for the dissolution of a political party and forfeiture of political rights by its members, but was a question of the criminal responsibility of the MPs concerned, which was not a matter of constitutional law. 25. With regard to the merits, the Constitutional Court held that while political parties were the main protagonists of democratic politics their activities were not exempt from certain restrictions. In particular, activities by them incompatible with the rule of law could not be tolerated. The Constitutional Court referred to the provisions of the Constitution which imposed respect for secularism on the various organs of political power. It also cited the numerous provisions of domestic legislation requiring political parties to apply the principle of secularism in a number of fields of political and social life. The Constitutional Court observed that secularism was one of the indispensable conditions of democracy. In Turkey the principle of secularism was safeguarded by the Constitution, on account of the country’s historical experience and the specific features of Islam. The rules of sharia were incompatible with the democratic regime. The principle of secularism prevented the State from manifesting a preference for a particular religion or belief and constituted the foundation of freedom of conscience and equality between citizens before the law. Intervention by the State to preserve the secular nature of the political regime had to be considered necessary in a democratic society. 26. The Constitutional Court held that the following evidence proved that Refah had become a centre of activities contrary to the principle of secularism (see paragraphs 27-39 below): 27. Refah’s chairman, Mr Necmettin Erbakan, had encouraged the wearing of Islamic headscarves in public and educational establishments. On 10 October 1993, at the party’s Fourth Ordinary General Meeting, he had said: “... when we were in government, for four years, the notorious Article 163 of the Persecution Code was never applied against any child in the country. In our time there was never any question of hostility to the wearing of headscarves ...” In his speech of 14 December 1995 before the general election he had said: “... [university] chancellors are going to retreat before the headscarf when Refah comes to power.” But manifesting one’s religion in such a manner amounted to exerting pressure on persons who did not follow that practice and created discrimination on the ground of religion or beliefs. That finding was supported by various rulings of the Constitutional Court and the Supreme Administrative Court and by the case-law of the European Commission of Human Rights on applications nos. 16278/90 and 18783/91 concerning the wearing of headscarves at universities. 28. The plurality of legal systems proposed by Mr Necmettin Erbakan was nothing to do with the freedom to enter into contracts as Refah claimed, but was an attempt to establish a distinction between citizens on the ground of their religion and beliefs and was aimed at the installation of a theocratic regime. On 23 March 1993 Mr Erbakan had made the following speech to the National Assembly: “... ‘you shall live in a manner compatible with your beliefs’. We want despotism to be abolished. There must be several legal systems. The citizen must be able to choose for himself which legal system is most appropriate for him, within a framework of general principles. Moreover, that has always been the case throughout our history. In our history there have been various religious movements. Everyone lived according to the legal rules of his own organisation, and so everyone lived in peace. Why, then, should I be obliged to live according to another’s rules? ... The right to choose one’s own legal system is an integral part of the freedom of religion.” In addition, Mr Necmettin Erbakan had spoken as follows on 10 October 1993 at a Refah party conference: “... we shall guarantee all human rights. We shall guarantee to everyone the right to live as he sees fit and to choose the legal system he prefers. We shall free the administration from centralism. The State which you have installed is a repressive State, not a State at the people’s service. You do not allow the freedom to choose one’s code of law. When we are in power a Muslim will be able to get married before the mufti, if he wishes, and a Christian will be able to marry in church, if he prefers.” 29. The plurality of legal systems advocated by Mr Necmettin Erbakan in his speeches had its origin in the practice introduced in the first years of Islam by the “Medina Agreement”, which had given the Jewish and polytheist communities the right to live according to their own legal systems, not according to Islamic law. On the basis of the Medina Agreement some Islamist thinkers and politicians had proposed a model of peaceful social co-existence under which each religious group would be free to choose its own legal system. Since the foundation of the Nizam Party in 1970 (dissolved by a judgment of 2 May 1971) Mr Necmettin Erbakan had been seeking to replace the single legal system with a plurality of legal systems. 30. The Constitutional Court further observed that in a plurality of legal systems, as proposed by Refah, society would have to be divided into several religious movements; each individual would have to choose the movement to which he wished to belong and would thus be subjected to the rights and obligations prescribed by the religion of his community. The Constitutional Court pointed out that such a system, whose origins lay in the history of Islam as a political regime, was inimical to the consciousness of allegiance to a nation having legislative and judicial unity. It would naturally impair judicial unity since each religious movement would set up its own courts and the ordinary courts would be obliged to apply the law according to the religion of those appearing before them, thus obliging the latter to reveal their beliefs. It would also undermine legislative and judicial unity, the preconditions for secularism and the consciousness of nationhood, given that each religious movement would be empowered to decree what legal rules should be applicable to its members. 31. In addition, Mr Necmettin Erbakan had made a speech on 13 April 1994 to the Refah group in Parliament in which he had advocated setting up a theocratic regime, if necessary through force: “The second important point is this: Refah will come to power and a just [social] order [ adil dozen ] will be established. The question we must ask ourselves is whether this change will be violent or peaceful; whether it will entail bloodshed. I would have preferred not to have to use those terms, but in the face of all that, in the face of terrorism, and so that everyone can see the true situation clearly, I feel obliged to do so. Today Turkey must take a decision. The Welfare Party will establish a just order, that is certain. [But] will the transition be peaceful or violent; will it be achieved harmoniously or by bloodshed? The sixty million [citizens] must make up their minds on that point.” 32. The reception given by Mr Necmettin Erbakan at the Prime Minister’s residence to the leaders of various religious movements, who had attended in vestments denoting their religious allegiance, unambiguously evidenced Refah’s chairman’s support for these religious groups vis-à-vis public opinion. 33. In a public speech in April 1994 Mr Şevki Yılmaz, MP for the province of Rize, had issued a clear call to wage a jihad and had argued for the introduction of Islamic law, making the following declaration: “We shall certainly call to account those who turn their backs on the precepts of the Koran and those who deprive Allah’s Messenger of his jurisdiction in their country.” In another public speech, also in April 1994, Mr Şevki Yılmaz had said: “In the hereafter you will be summoned with the leaders you have chosen in this life. ... Have you considered to what extent the Koran is applied in this country? I have done the sums. Only 39% [of the rules] in the Koran are applied in this country. Six thousand five hundred verses have been quietly forgotten ... You found a Koranic school, you build a hostel, you pay for a child’s education, you teach, you preach. ... None of that is part of the chapter on jihad but of that on the amel-i salih [peacetime activities]. Jihad is the name given to the quest for power for the advent of justice, for the propagation of justice and for glorification of Allah’s Word. Allah did not see that task as an abstract political concept; he made it a requirement for warriors [ cahudi ]. What does that mean? That jihad must be waged by an army! The commander is identified ... The condition to be met before prayer [ namaz ] is the Islamisation of power. Allah says that, before mosques, it is the path of power which must be Muslim ... It is not erecting vaulted ceilings in the places of prayer which will lead you to Paradise. For Allah does not ask whether you have built up vaulted ceilings in this country. He will not ask that. He will ask you if you have reached a sufficient level ... today, if Muslims have a hundred liras, they must give thirty to the Koranic schools, to train our children, girls and boys, and sixty must be given to the political establishments which open the road to power. Allah asked all His prophets to fight for power. You cannot name a single member of a religious movement who does not fight for power. I tell you, if I had as many heads as I have hairs on my head, even if each of those heads were to be torn from my shoulders for following the way of the Koran, I would not abandon my cause ... The question Allah will ask you is this: ‘Why, in the time of the blasphemous regime, did you not work for the construction of an Islamic State?’ Erbakan and his friends want to bring Islam to this country in the form of a political party. The prosecutor understood that clearly. If we could understand that as he did, the problem would be solved. Even Abraham the Jew has realised that in this country the symbol of Islam is Refah. He who incites the Muslim community [ cemaat ] to take up arms before political power is in Muslim hands is a fool, or a traitor doing the bidding of others. For none of the prophets authorised war before the capture of State power. ... Muslims are intelligent. They do not reveal how they intend to beat their enemy. The general staff gives orders and the soldiers obey. If the general staff reveals its plan, it is up to the commanders of the Muslim community to make a new plan. Our mission is not to talk, but to apply the war plan, as soldiers in the army ...” Criminal proceedings had been brought against Mr Şevki Yılmaz. Although his antipathy to secularism was well-known, Refah had adopted him as a candidate in local-government elections. After he had been elected mayor of Rize, Refah had made sure that he was elected as an MP in the Turkish Grand National Assembly. 34. In a public speech on 14 March 1993 and a television interview first recorded in 1992 and rebroadcast on 24 November 1996, Mr Hasan Hüseyin Ceylan, Refah MP for the province of Ankara, had encouraged discrimination between believers and non-believers and had predicted that if the supporters of applying sharia came to power they would annihilate non ‑ believers: “Our homeland belongs to us, but not the regime, dear brothers. The regime and Kemalism belong to others. ... Turkey will be destroyed, gentlemen. People say: Could Turkey become like Algeria? Just as, in Algeria, we got 81% [of the votes], here too we will reach 81%, we will not remain on 20%. Do not waste your energy on us – I am speaking here to you, to those ... of the imperialist West, the colonising West, the wild West, to those who, in order to unite with the rest of the world, become the enemies of honour and modesty, those who lower themselves to the level of dogs, of puppies, in order to imitate the West, to the extent of putting dogs between the legs of Muslim women – it is to you I speak when I say: ‘Do not waste your energy on us, you will die at the hands of the people of Kırıkkale.’ ” “... the army says: ‘We can accept it if you’re a supporter of the PKK, but a supporter of sharia, never.’ Well you won’t solve the problem with that attitude. If you want the solution, it’s sharia.” Refah had ensured that Mr Ceylan was elected as an MP and its local branches had played videotapes of this speech and the interview. 35. Refah’s vice-chairman, Mr Ahmet Tekdal, in a speech he made in 1993 while on pilgrimage in Saudi Arabia which was shown by a Turkish television station, had said that he advocated installing a regime based on sharia: “In countries which have a parliamentary regime, if the people are not sufficiently aware, if they do not work hard enough to bring about the advent of ‘ hak nizami ’ [a just order or God’s order], two calamities lie ahead. The first calamity is the renegades they will have to face. They will be tyrannised by them and will eventually disappear. The second calamity is that they will not be able to give a satisfactory account of themselves to Allah, as they will not have worked to establish ‘ hak nizami ’. And so they will likewise perish. Venerable brothers, our duty is to do what is necessary to introduce the system of justice, taking these subtleties into consideration. The political apparatus which seeks to establish ‘ hak nizami ’ in Turkey is the Welfare Party.” 36. On 10 November 1996 the mayor of Kayseri, Mr Şükrü Karatepe, had urged the population to renounce secularism and asked his audience to “keep their hatred alive” until the regime was changed, in the following terms: “The dominant forces say ‘either you live as we do or we will sow discord and corruption among you’. So even Welfare Party Ministers dare not reveal their world-outlook inside their Ministries. This morning I too attended a ceremony in my official capacity. When you see me dressed up like this in all this finery, don’t think it’s because I’m a supporter of secularism. In this period when our beliefs are not respected, and indeed are blasphemed against, I have had to attend these ceremonies in spite of myself. The Prime Minister, other Ministers and MPs have certain obligations. But you have no obligations. This system must change. We have waited, we will wait a little longer. Let us see what the future has in store for us. And let Muslims keep alive the resentment, rancour and hatred they feel in their hearts.” Mr Şükrü Karatepe had been convicted of inciting the people to hatred on the ground of religion. 37. On 8 May 1997 Mr İbrahim Halil Çelik, Refah MP for the province of Şanlıurfa, had spoken in Parliament in favour of the establishment of a regime based on sharia and approving acts of violence like those which were taking place in Algeria: “If you attempt to close down the ‘ İmam-Hatip ’ theological colleges while the Welfare Party is in government, blood will flow. It would be worse than in Algeria. I too would like blood to flow. That’s how democracy will be installed. And it will be a beautiful thing. The army has not been able to deal with 3,500 members of the PKK. How would it see off six million Islamists? If they piss into the wind they’ll get their faces wet. If anyone attacks me I will strike back. I will fight to the end to introduce sharia.” Mr İbrahim Halil Çelik had been expelled from the party one month after the application for dissolution had been lodged. His exclusion had probably only been an attempt to evade the penalty in question. 38. Refah’s vice-chairman, the Minister of Justice, Mr Şevket Kazan, had visited a person detained pending trial for activities contrary to the principle of secularism, thus publicly lending him his support as a Minister. 39. On the basis of the evidence adduced on 7 July 1997 by Principal State Counsel’s Office, the Constitutional Court held that the following further evidence confirmed that Refah was a centre of activities contrary to the principle of secularism: – In a public speech on 7 May 1996 Mr Necmettin Erbakan had emphasised the importance of television as an instrument of propaganda in the holy war being waged in order to establish Islamic order: “... A State without television is not a State. If today, with your leadership, you wished to create a State, if you wanted to set up a television station, you would not even be able to broadcast for more than twenty-four hours. Do you believe it is as easy as that to create a State? That’s what I told them ten years ago. I remember it now. Because today people who have beliefs, an audience and a certain vision of the world, have a television station of their own, thanks be to God. It is a great event. Conscience, the fact that the television [channel] has the same conscience in all its programmes, and that the whole is harmonious, is very important. A cause cannot be fought for without [the support of] television. Besides, today we can say that television plays the role of artillery or an air force in the jihad, that is the war for domination of the people ... it would be unthinkable to send a soldier to occupy a hill before those forces had shelled or bombed it. That is why the jihad of today cannot be waged without television. So, for something so vital, sacrifices must be made. What difference does it make if we sacrifice money? Death is close to all of us. When everything is dark, after death, if you want something to show you the way, that something is the money you give today, with conviction, for Kanal 7. It was to remind you of that that I shared my memories with you. ... That is why, from now on, with that conviction, we will truly make every sacrifice, until it hurts. May those who contribute, with conviction, to the supremacy of Hakk [Allah] be happy. May Allah bless you all, and may He grant Kanal 7 even more success. Greetings.” – By a decree of 13 January 1997 the cabinet (in which the Refah members formed a majority) had reorganised working hours in public establishments to make allowances for fasting during Ramadan. The Supreme Administrative Court had annulled this decree on the ground that it undermined the principle of secularism. 40. The Constitutional Court observed that it had taken into consideration international human-rights protection instruments, including the Convention. It also referred to the restrictions authorised by the second paragraph of Article 11 and Article 17 of the Convention. It pointed out in that context that Refah’s leaders and members were using democratic rights and freedoms with a view to replacing the democratic order with a system based on sharia. The Constitutional Court observed: “Democracy is the antithesis of sharia. [The] principle [of secularism], which is a sign of civic responsibility, was the impetus which enabled the Turkish Republic to move on from Ummah [ ümmet – the Muslim religious community] to the nation. With adherence to the principle of secularism, values based on reason and science replaced dogmatic values. ... Persons of different beliefs, desiring to live together, were encouraged to do so by the State’s egalitarian attitude towards them. ... Secularism accelerated civilisation by preventing religion from replacing scientific thought in the State’s activities. It creates a vast environment of civic responsibility and freedom. The philosophy of modernisation of Turkey is based on a humanist ideal, namely living in a more human way. Under a secular regime religion, which is a specific social institution, can have no authority over the constitution and governance of the State. ... Conferring on the State the right to supervise and oversee religious matters cannot be regarded as interference contrary to the requirements of democratic society. ... Secularism, which is also the instrument of the transition to democracy, is the philosophical essence of life in Turkey. Within a secular State religious feelings simply cannot be associated with politics, public affairs and legislative provisions. Those are not matters to which religious requirements and thought apply, only scientific data, with consideration for the needs of individuals and societies.” The Constitutional Court held that where a political party pursued activities aimed at bringing the democratic order to an end and used its freedom of expression to issue calls to action to achieve that aim, the Constitution and supranational human-rights protection rules authorised its dissolution. 41. The Constitutional Court observed that the public statements of Refah’s leaders, namely those of Mr Necmettin Erbakan, Mr Şevket Kazan and Mr Ahmet Tekdal, had directly engaged Refah’s responsibility with regard to the constitutionality of its activities. It further observed that the public statements made by MPs Mr Şevki Yılmaz, Mr Hasan Hüseyin Ceylan and Mr İbrahim Halil Çelik, and by the mayor of Kayseri, Mr Şükrü Karatepe, had likewise engaged the party’s responsibility since it had not reacted to them in any way or sought to distance itself from them, or at least not before the commencement of the dissolution proceedings. 42. As an additional penalty, the Constitutional Court decided to strip Necmettin Erbakan, Şevket Kazan, Ahmet Tekdal, Şevki Yılmaz, Hasan Hüseyin Ceylan and İbrahim Halil Çelik of their MP status, in accordance with Article 84 of the Constitution. It found that these persons, by their words and deeds, had caused Refah’s dissolution. The Constitutional Court also banned them for five years from becoming founding members, ordinary members, leaders or auditors of any other political party, pursuant to Article 69 § 8 of the Constitution. 43. Judges Haşim Kılıç and Sacit Adalı expressed dissenting opinions stating, inter alia, that in their view the dissolution of Refah was not compatible either with the provisions of the Convention or with the case ‑ law of the European Court of Human Rights on the dissolution of political parties. They observed that political parties which did not support the use of violence should be able to take part in political life and that in a pluralist system there should be room for debate about ideas thought to be disturbing or even shocking. 44. This judgment was published in the Official Gazette on 22 February 1998. | Refah Partisi (the Welfare Party - “Refah”) was founded in July 1983. It was dissolved in January 1998 by a judgment of the Turkish Constitutional Court on the ground that it had become a “centre of activities against the principle of secularism”. The Turkish Constitutional Court also declared that Refah’s assets were to be transferred to the Treasury. The Constitutional Court further held that the public declarations of Refah’s leaders had been unconstitutional. Consequently, it banned them from sitting in Parliament or holding certain political posts for five years. |
1,008 | Cases concerning the international military operations in Iraq during the Second Gulf War | I. THE CIRCUMSTANCES OF THE CASE 8. The facts of the case may be summarised as follows. A. The occupation of Iraq from 1 May 2003 to 28 June 2004 1. Background: United Nations Security Council Resolution 1441 9. On 8 November 2002 the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, adopted Resolution 1441. The Resolution decided, inter alia, that Iraq had been and remained in material breach of its obligations under previous United Nations Security Council resolutions to disarm and to cooperate with United Nations and International Atomic Energy Agency weapons inspectors. Resolution 1441 decided to afford Iraq a final opportunity to comply with its disarmament obligations and set up an enhanced inspection regime. It requested the Secretary-General of the United Nations immediately to notify Iraq of the Resolution and demanded that Iraq cooperate immediately, unconditionally, and actively with the inspectors. Resolution 1441 concluded by recalling that the Security Council had “repeatedly warned Iraq that it w [ould] face serious consequences as a result of its continued violations of its obligations”. The Security Council decided to remain seised of the matter. 2. Major combat operations: 20 March to 1 May 2003 10. On 20 March 2003 a Coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq. By 5 April 2003 the British had captured Basra and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. Thereafter, other States sent personnel to help with the reconstruction effort. 3. Legal and political developments in May 2003 11. On 8 May 2003 the Permanent Representatives of the United Kingdom and the United States of America at the United Nations addressed a joint letter to the President of the United Nations Security Council, which read as follows: “The United States of America, the United Kingdom of Great Britain and Northern Ireland and Coalition partners continue to act together to ensure the complete disarmament of Iraq of weapons of mass destruction and means of delivery in accordance with United Nations Security Council resolutions. The States participating in the Coalition will strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq. We will act to ensure that Iraq ’ s oil is protected and used for the benefit of the Iraqi people. In order to meet these objectives and obligations in the post-conflict period in Iraq, the United States, the United Kingdom and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of Reconstruction and Humanitarian Assistance, to exercise powers of government temporarily, and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction. The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by: deterring hostilities; maintaining the territorial integrity of Iraq and securing Iraq ’ s borders; securing, and removing, disabling, rendering harmless, eliminating or destroying (a) all of Iraq ’ s weapons of mass destruction, ballistic missiles, unmanned aerial vehicles and all other chemical, biological and nuclear delivery systems; and (b) all elements of Iraq ’ s programme to research, develop, design, manufacture, produce, support, assemble and employ such weapons and delivery systems and subsystems and components thereof, including but not limited to stocks of chemical and biological agents, nuclear-weapon-usable material, and other related materials, technology, equipment, facilities and intellectual property that have been used in or can materially contribute to these programmes; in consultation with relevant international organisations, facilitating the orderly and voluntary return of refugees and displaced persons; maintaining civil law and order, including through encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; eliminating all terrorist infrastructure and resources within Iraq and working to ensure that terrorists and terrorist groups are denied safe haven; supporting and coordinating de - mining and related activities; promoting accountability for crimes and atrocities committed by the previous Iraqi regime; and assuming immediate control of Iraqi institutions responsible for military and security matters and providing, as appropriate, for the demilitarisation, demobilisation, control, command, reformation, disestablishment, or reorganisation of those institutions so that they no longer pose a threat to the Iraqi people or international peace and security but will be capable of defending Iraq ’ s sovereignty and territorial integrity. The United States, the United Kingdom and Coalition partners recognise the urgent need to create an environment in which the Iraqi people may freely determine their own political future. To this end, the United States, the United Kingdom and Coalition partners are facilitating the efforts of the Iraqi people to take the first steps towards forming a representative government, based on the rule of law, that affords fundamental freedoms and equal protection and justice under law to the people of Iraq without regard to ethnicity, religion or gender. The United States, the United Kingdom and Coalition partners are facilitating the establishment of representative institutions of government, and providing for the responsible administration of the Iraqi financial sector, for humanitarian relief, for economic reconstruction, for the transparent operation and repair of Iraq ’ s infrastructure and natural resources, and for the progressive transfer of administrative responsibilities to such representative institutions of government, as appropriate. Our goal is to transfer responsibility for administration to representative Iraqi authorities as early as possible. The United Nations has a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority. The United States, the United Kingdom and Coalition partners are ready to work closely with representatives of the United Nations and its specialised agencies and look forward to the appointment of a special coordinator by the Secretary-General. We also welcome the support and contributions of member States, international and regional organisations, and other entities, under appropriate coordination arrangements with the Coalition Provisional Authority. We would be grateful if you could arrange for the present letter to be circulated as a document of the Security Council. (Signed) Jeremy Greenstock Permanent Representative of the United Kingdom (Signed) John D. Negroponte Permanent Representative of the United States” 12. As mentioned in the above letter, the occupying States, acting through the Commander of Coalition Forces, created the Coalition Provisional Authority (CPA) to act as a “caretaker administration” until an Iraqi government could be established. It had power, inter alia, to issue legislation. On 13 May 2003 the US Secretary of Defence, Donald Rumsfeld, issued a memorandum formally appointing Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. In CPA Regulation No. 1, dated 16 May 2003, Ambassador Bremer provided as follows: “ Pursuant to my authority as Administrator of the Coalition Provisional Authority (CPA), relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war, I hereby promulgate the following: Section 1 The Coalition Provisional Authority ( 1) The CPA shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration, to restore conditions of security and stability, to create conditions in which the Iraqi people can freely determine their own political future, including by advancing efforts to restore and establish national and local institutions for representative governance and facilitating economic recovery and sustainable reconstruction and development. ( 2) The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war. This authority shall be exercised by the CPA Administrator. ( 3) As the Commander of Coalition Forces, the Commander of US Central Command shall directly support the CPA by deterring hostilities; maintaining Iraq ’ s territorial integrity and security; searching for, securing and destroying weapons of mass destruction; and assisting in carrying out Coalition policy generally. Section 2 The Applicable Law Unless suspended or replaced by the CPA or superseded by legislation issued by democratic institutions of Iraq, laws in force in Iraq as of 16 April 2003 shall continue to apply in Iraq in so far as the laws do not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with the present or any other Regulation or Order issued by the CPA. ... ” 13. The CPA administration was divided into regional areas. CPA South was placed under United Kingdom responsibility and control, with a United Kingdom Regional Coordinator. It covered the southernmost four of Iraq ’ s eighteen provinces, each having a governorate coordinator. United Kingdom troops were deployed in the same area. The United Kingdom was represented at CPA headquarters through the Office of the United Kingdom Special Representative. According to the Government, although the United Kingdom Special Representative and his Office sought to influence CPA policy and decisions, United Kingdom personnel had no formal decision-making power within the Authority. All the CPA ’ s administrative and legislative decisions were taken by Ambassador Bremer. 14. United Nations Security Council Resolution 1483 referred to by Ambassador Bremer in CPA Regulation No. 1 was actually adopted six days later, on 22 May 2003. It provided as follows: “ The Security Council, Recalling all its previous relevant resolutions, Reaffirming the sovereignty and territorial integrity of Iraq, Reaffirming also the importance of the disarmament of Iraqi weapons of mass destruction and of eventual confirmation of the disarmament of Iraq, Stressing the right of the Iraqi people freely to determine their own political future and control their own natural resources, welcoming the commitment of all parties concerned to support the creation of an environment in which they may do so as soon as possible, and expressing resolve that the day when Iraqis govern themselves must come quickly, Encouraging efforts by the people of Iraq to form a representative government based on the rule of law that affords equal rights and justice to all Iraqi citizens without regard to ethnicity, religion, or gender, and, in this connection, recalls Resolution 1325 (2000) of 31 October 2000, Welcoming the first steps of the Iraqi people in this regard, and noting in this connection the 15 April 2003 Nasiriyah statement and the 28 April 2003 Baghdad statement, Resolved that the United Nations should play a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration and establishment of national and local institutions for representative governance, ... Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognising the specific authorities, responsibilities, and obligations under applicable international law of these States as Occupying Powers under unified command (the ‘ Authority ’ ), Noting further that other States that are not Occupying Powers are working now or in the future may work under the Authority, Welcoming further the willingness of member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority, Concerned that many Kuwaitis and Third-State Nationals still are not accounted for since 2 August 1990, Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Appeals to member States and concerned organisations to assist the people of Iraq in their efforts to reform their institutions and rebuild their country, and to contribute to conditions of stability and security in Iraq in accordance with this Resolution; 2. Calls upon all member States in a position to do so to respond immediately to the humanitarian appeals of the United Nations and other international organisations for Iraq and to help meet the humanitarian and other needs of the Iraqi people by providing food, medical supplies, and resources necessary for reconstruction and rehabilitation of Iraq ’ s economic infrastructure; 3. Appeals to member States to deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice; 4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future; 5. Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907; ... 8. Requests the Secretary-General to appoint a Special Representative for Iraq whose independent responsibilities shall involve reporting regularly to the Council on his activities under this Resolution, coordinating activities of the United Nations in post-conflict processes in Iraq, coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq, and, in coordination with the Authority, assisting the people of Iraq through: (a) coordinating humanitarian and reconstruction assistance by United Nations agencies and between United Nations agencies and non-governmental organisations; (b) promoting the safe, orderly, and voluntary return of refugees and displaced persons; (c) working intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognised, representative government of Iraq; (d) facilitating the reconstruction of key infrastructure, in cooperation with other international organisations; (e) promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organisations, as appropriate, civil society, donors, and the international financial institutions; (f) encouraging international efforts to contribute to basic civilian administration functions; (g) promoting the protection of human rights; (h) encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; and (i) encouraging international efforts to promote legal and judicial reform; 9. Supports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognised, representative government is established by the people of Iraq and assumes the responsibilities of the Authority; ... 24. Requests the Secretary-General to report to the Council at regular intervals on the work of the Special Representative with respect to the implementation of this Resolution and on the work of the International Advisory and Monitoring Board and encourages the United Kingdom of Great Britain and Northern Ireland and the United States of America to inform the Council at regular intervals of their efforts under this Resolution; 25. Decides to review the implementation of this Resolution within twelve months of adoption and to consider further steps that might be necessary. 26. Calls upon member States and international and regional organisations to contribute to the implementation of this Resolution; 27. Decides to remain seised of this matter.” 5. Developments between July 2003 and June 2004 15. In July 2003 the Governing Council of Iraq was established. The CPA was required to consult with it on all matters concerning the temporary governance of Iraq. 16. On 16 October 2003 the United Nations Security Council passed Resolution 1511, which provided, inter alia, as follows: “ The Security Council ... Underscoring that the sovereignty of Iraq resides in the State of Iraq, reaffirming the right of the Iraqi people freely to determine their own political future and control their own natural resources, reiterating its resolve that the day when Iraqis govern themselves must come quickly, and recognising the importance of international support, particularly that of countries in the region, Iraq ’ s neighbours, and regional organisations, in taking forward this process expeditiously, Recognising that international support for restoration of conditions of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming member State contributions in this regard under Resolution 1483 (2003), Welcoming the decision of the Governing Council of Iraq to form a preparatory constitutional committee to prepare for a constitutional conference that will draft a Constitution to embody the aspirations of the Iraqi people, and urging it to complete this process quickly, ... Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Reaffirms the sovereignty and territorial integrity of Iraq, and underscores, in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognised and set forth in Resolution 1483 (2003), which will cease when an internationally recognised, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority, inter alia, through steps envisaged in paragraphs 4 through 7 and 10 below; ... 4. Determines that the Governing Council and its ministers are the principal bodies of the Iraqi interim administration, which, without prejudice to its further evolution, embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government is established and assumes the responsibilities of the Authority; 5. Affirms that the administration of Iraq will be progressively undertaken by the evolving structures of the Iraqi interim administration; 6. Calls upon the Authority, in this context, to return governing responsibilities and authorities to the people of Iraq as soon as practicable and requests the Authority, in cooperation as appropriate with the Governing Council and the Secretary-General, to report to the Council on the progress being made; 7. Invites the Governing Council to provide to the Security Council, for its review, no later than 15 December 2003, in cooperation with the Authority and, as circumstances permit, the Special Representative of the Secretary-General, a timetable and a programme for the drafting of a new Constitution for Iraq and for the holding of democratic elections under that Constitution; 8. Resolves that the United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission for Iraq, should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government; ... 13. Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of Resolution 1483 (2003), and authorises a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure; 14. Urges member States to contribute assistance under this United Nations mandate, including military forces, to the Multinational Force referred to in paragraph 13 above; 15. Decides that the Council shall review the requirements and mission of the Multinational Force referred to in paragraph 13 above not later than one year from the date of this Resolution, and that in any case the mandate of the Force shall expire upon the completion of the political process as described in paragraphs 4 through 7 and 10 above, and expresses readiness to consider on that occasion any future need for the continuation of the Multinational Force, taking into account the views of an internationally recognised, representative government of Iraq; ... 25. Requests that the United States, on behalf of the Multinational Force as outlined in paragraph 13 above, report to the Security Council on the efforts and progress of this Force as appropriate and not less than every six months; 26. Decides to remain seised of the matter. ” 17. On 8 March 2004 the Governing Council of Iraq promulgated the Law of Administration for the State of Iraq for the Transitional Period (known as the “Transitional Administrative Law”). This provided a temporary legal framework for the administration of Iraq for the transitional period which was due to commence by 30 June 2004 with the establishment of an interim Iraqi government and the dissolution of the CPA. 18. Provision for the new regime was made in United Nations Security Council Resolution 1546, adopted on 8 June 2004, which provided, inter alia, that the Security Council, acting under Chapter VII of the Charter of the United Nations : “ 1. Endorses the formation of a sovereign interim government of Iraq, as presented on 1 June 2004, which will assume full responsibility and authority by 30 June 2004 for governing Iraq while refraining from taking any actions affecting Iraq ’ s destiny beyond the limited interim period until an elected transitional government of Iraq assumes office as envisaged in paragraph 4 below; 2. Welcomes that, also by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty; ... 8. Welcomes ongoing efforts by the incoming interim government of Iraq to develop Iraqi security forces including the Iraqi armed forces (hereinafter referred to as ‘ Iraqi security forces ’ ), operating under the authority of the interim government of Iraq and its successors, which will progressively play a greater role and ultimately assume full responsibility for the maintenance of security and stability in Iraq; 9. Notes that the presence of the Multinational Force in Iraq is at the request of the incoming interim government of Iraq and therefore reaffirms the authorisation for the Multinational Force under unified command established under Resolution 1511 (2003), having regard to the letters annexed to this Resolution; 10. Decides that the Multinational Force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph 7 above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities; ... ” 6. The transfer of authority to the Iraqi interim government 19. On 28 June 2004 full authority was transferred from the CPA to the Iraqi interim government and the CPA ceased to exist. Subsequently, the Multinational Force, including the British forces forming part of it, remained in Iraq pursuant to requests by the Iraqi government and authorisations from the United Nations Security Council. B. United Kingdom armed forces in Iraq from May 2003 to June 2004 20. During this period, the Coalition Forces consisted of six divisions that were under the overall command of US generals. Four were US divisions and two were multinational. Each division was given responsibility for a particular geographical area of Iraq. The United Kingdom was given command of the Multinational Division (South - East), which comprised the provinces of Basra, Maysan, Thi Qar and Al ‑ Muthanna, an area of 96,000 square kilometres with a population of 4.6 million. There were 14,500 Coalition troops, including 8,150 United Kingdom troops, stationed in the Multinational Division (South - East). The main theatre for operations by United Kingdom forces in the Multinational Division (South - East) were the Basra and Maysan provinces, with a total population of about 2.75 million people. Just over 8,000 British troops were deployed there, of whom just over 5,000 had operational responsibilities. 21. From 1 May 2003 onwards British forces in Iraq carried out two main functions. The first was to maintain security in the Multinational Division (South - East) area, in particular in the Basra and Maysan provinces. The principal security task was the effort to re-establish the Iraqi security forces, including the Iraqi police. Other tasks included patrols, arrests, anti-terrorist operations, policing of civil demonstrations, protection of essential utilities and infrastructure and protecting police stations. The second main function of the British troops was the support of the civil administration in Iraq in a variety of ways, from liaison with the CPA and Governing Council of Iraq and local government, to assisting with the rebuilding of the infrastructure. 22. In the Aitken Report (see paragraph 69 below), prepared on behalf of the Army Chief of General Staff, the post-conflict situation in Iraq was described as follows: “The context in which operations have been conducted in Iraq has been exceptionally complex. It is not for this report to comment on the jus ad bellum aspects of the operation, nor of the public ’ s opinions of the invasion. It is, however, important to note that the Alliance ’ s post-invasion plans concentrated more on the relief of a humanitarian disaster (which did not, in the event, occur on anything like the scale that had been anticipated), and less on the criminal activity and subsequent insurgency that actually took place. One consequence of that was that we had insufficient troops in theatre to deal effectively with the situation in which we found ourselves. Peace support operations require significantly larger numbers of troops to impose law and order than are required for prosecuting a war: ours were very thinly spread on the ground. In his investigation (in April 2005) of the Breadbasket incident [alleged abuse of Iraqis detained on suspicion of looting humanitarian aid stores], Brigadier Carter described conditions in Iraq thus: ‘ ... May 2003, some four weeks or so after British forces had started to begin the transition from offensive operations to stabilisation. The situation was fluid. Battlegroups had been given geographic areas of responsibility based generally around their initial tactical objectives. Combat operations had officially ended, and [the] rules of engagement had changed to reflect this, but there was a rising trend of shooting incidents. Although these were principally between Iraqis, seeking to settle old scores or involved in criminal activity, there were early indications that the threat to British soldiers was developing ... The structure of the British forces was changing. Many of the heavier capabilities that had been required for the invasion were now being sent home. Some force elements were required for operations elsewhere, and there was pressure from the UK to downsize quickly to more sustainable numbers ... Local attitudes were also changing. Initially ecstatic with happiness, the formerly downtrodden Shia population in and around Basra had become suspicious, and by the middle of May people were frustrated. Aspirations and expectations were not being met. There was no Iraqi administration or governance. Fuel and potable water were in short supply, electricity was intermittent, and the hospitals were full of wounded from the combat operations phase. Bridges and key routes had been destroyed by Coalition bombing. Law and order had completely collapsed. The Iraqi police service had melted away; the few security guards who remained were old and incapable; and the Iraqi armed forces had been captured, disbanded or deserted. Criminals had been turned out onto the streets and the prisons had been stripped. The judiciary were in hiding. Every government facility had been raided and all loose items had been removed. Insecure buildings had been occupied by squatters. Crime was endemic and in parts of Basra a state of virtual anarchy prevailed. Hijackings, child kidnappings, revenge killings, car theft and burglary were rife. In a very short space of time wealth was being comprehensively redistributed. ’ In this environment, the British army was the sole agent of law and order within its area of operations. When the Association of Chief Police Officers ’ Lead for International Affairs, Mr Paul Kernaghan, visited Iraq in May 2003, he said that he would not recommend the deployment of civilian police officers to the theatre of operations due to the poor security situation. The last time the army had exercised the powers of an army of occupation was in 1945 – and it had spent many months preparing for that role; in May 2003, the same soldiers who had just fought a high ‑ intensity, conventional war were expected to convert, almost overnight, into the only people capable of providing the agencies of government and humanitarian relief for the people of southern Iraq. Battlegroups (comprising a Lieutenant Colonel and about 500 soldiers) were allocated areas of responsibilities comprising hundreds of square miles; companies (a Major with about 100 men under command) were given whole towns to run. The British invasion plans had wisely limited damaging as much of the physical infrastructure as possible; but with only military personnel available to run that infrastructure, and very limited local staff support, the task placed huge strains on the army. One of the effects of this lack of civil infrastructure was the conundrum British soldiers faced when dealing with routine crime. Our experience in Northern Ireland, and in peace support operations around the world, has inculcated the clear principle of police primacy when dealing with criminals in operational environments. Soldiers accept that they will encounter crime, and that they will occasionally be required to arrest those criminals; but (despite some experience of this syndrome in Kosovo in 1999) our doctrine and practice had not prepared us for dealing with those criminals when there was no civil police force, no judicial system to deal with offenders, and no prisons to detain them in. Even when a nascent Iraqi police force was re-established in 2003, troops on the ground had little confidence in its ability to deal fairly or reasonably with any criminals handed over to it. In hindsight, we now know that some soldiers acted outside the law in the way they dealt with local criminals. However diligent they were, commanders were unable to be everywhere, and so were physically unable to supervise their troops to the extent that they should; as a result, when those instances did occur, they were less likely to be spotted and prevented. ” 23. United Kingdom military records show that, as at 30 June 2004, there had been approximately 178 demonstrations and 1,050 violent attacks against Coalition Forces in the Multinational Division (South - East) since 1 May 2003. The violent attacks consisted of 5 anti-aircraft attacks, 12 grenade attacks, 101 attacks using improvised explosive devices, 52 attempted attacks using improvised explosive devices, 145 mortar attacks, 147 rocket - propelled grenade attacks, 535 shootings and 53 others. The same records show that, between May 2003 and March 2004, 49 Iraqis were known to have been killed in incidents in which British troops used force. C. The rules of engagement 24. The use of force by British troops during operations is covered by the appropriate rules of engagement. The rules of engagement governing the use of lethal force by British troops in Iraq during the relevant period were the subject of guidance contained in a card issued to every soldier, known as “ Card Alpha ”. Card Alpha set out the rules of engagement in the following terms: “CARD A – GUIDANCE FOR OPENING FIRE FOR SERVICE PERSONNEL AUTHORISED TO CARRY ARMS AND AMMUNITION ON DUTY GENERAL GUIDANCE 1. This guidance does not affect your inherent right to self-defence. However, in all situations you are to use no more force than absolutely necessary. FIREARMS MUST ONLY BE USED AS A LAST RESORT 2. When guarding property, you must not use lethal force other than for the protection of human life. PROTECTION OF HUMAN LIFE 3. You may only open fire against a person if he/she is committing or about to commit an act likely to endanger life and there is no other way to prevent the danger. CHALLENGING 4. A challenge MUST be given before opening fire unless: ( a ) to do this would be to increase the risk of death or grave injury to you or any other persons other than the attacker(s); OR ( b ) you or others in the immediate vicinity are under armed attack. 5. You are to challenge by shouting: ‘ NAVY, ARMY, AIR FORCE, STOP OR I FIRE ’ or words to that effect. OPENING FIRE 6. If you have to open fire you are to: ( a ) fire only aimed shots; AND ( b ) fire no more rounds than are necessary; AND ( c ) take all reasonable precautions not to injure anyone other than your target.” D. Investigations into Iraqi civilian deaths involving British soldiers 1. The decision to refer an incident for investigation by the Royal Military Police 25. On 21 June 2003 Brigadier Moore (Commander of the 19 Mechanised Brigade in Iraq from June to November 2003) issued a formal policy on the investigation of shooting incidents. This policy provided that all shooting incidents were to be reported and the Divisional Provost Marshal was to be informed. Non-commissioned officers from the Royal Military Police were then to evaluate the incident and decide whether it fell within the rules of engagement. If it was decided that the incident did come within the rules of engagement, statements were to be recorded and a completed bulletin submitted through the chain of command. If the incident appeared to fall outside the rules of engagement and involved death or serious injury, the investigation was to be handed to the Special Investigation Branch of the Royal Military Police ( see paragraph 28 below ) by the Divisional Provost Marshal at the earliest opportunity. 26. However, Brigadier Moore decided that from 28 July 2003 this policy should be revised. The new policy required that all such incidents should be reported immediately by the soldier involved to the Multinational Division (South - East) by means of a “serious incident report ”. There would then be an investigation into the incident by the Company Commander or the soldier ’ s Commanding Officer. In his evidence to the domestic courts, Brigadier Moore explained that: “The form of an investigation into an incident would vary according to the security situation on the ground and the circumstances of the individual case. Generally, it would involve the Company Commander or Commanding Officer taking statements from the members of the patrol involved, and reviewing radio logs. It might also include taking photographs of the scene. Sometimes there would be further investigation through a meeting with the family/tribe of the person killed. Investigations at unit - level, however, would not include a full forensic examination. Within the Brigade, we had no forensic capability.” If the Commanding Officer was satisfied, on the basis of the information available to him, that the soldier had acted lawfully and within the rules of engagement, there was no requirement to initiate an investigation by the Special Investigation Branch. The Commanding Officer would record his decision in writing to Brigadier Moore. If the Commanding Officer was not so satisfied, or if he had insufficient information to arrive at a decision, he was required to initiate a Special Investigation Branch investigation. 27. Between January and April 2004 there was a further reconsideration of this policy, prompted by the fact that the environment had become less hostile and also by the considerable media and parliamentary interest in incidents involving United Kingdom forces in which Iraqis had died. On 24 April 2004 a new policy was adopted by the Commander of the Multinational Division (South - East), requiring all shooting incidents involving United Kingdom forces which resulted in a civilian being killed or injured to be investigated by the Special Investigation Branch. In exceptional cases, the Brigade Commander could decide that an investigation was not necessary. Any such decision had to be notified to the Commander of the Multinational Division (South - East) in writing. 2. Investigation by the Royal Military Police (Special Investigation Branch) 28. The Royal Military Police form part of the army and deploy with the army on operations abroad, but have a separate chain of command. Military police officers report to the Provost Marshal, who reports to the Adjutant General. Within the Royal Military Police, the Special Investigation Branch is responsible for the investigation of serious crimes committed by members of the British forces while on service, incidents involving contact between the military and civilians and any special investigations tasked to it, including incidents involving civilian deaths caused by British soldiers. To secure their practical independence on operations, the Special Investigation Branch deploy as entirely discrete units and are subject to their own chain of command, headed by provost officers who are deployed on operations for this purpose. 29. Investigations into Iraqi civilian deaths involving British soldiers were triggered either by the Special Investigation Branch being asked to investigate by the Commanding Officer of the units concerned or by the Special Investigation Branch of its own initiative, when it became aware of an incident by other means. However, the latter type of investigation could be terminated if the Special Investigation Branch was instructed to stop by the Provost Marshal or the Commanding Officer of the unit involved. 30. Special Investigation Branch investigations in Iraq were hampered by a number of difficulties, such as security problems, lack of interpreters, cultural considerations ( for example, the Islamic practice requiring a body to be buried within twenty-four hours and left undisturbed for forty days), the lack of pathologists and post-mortem facilities, the lack of records, problems with logistics, the climate and general working conditions. The Aitken Report (see paragraph 69 below ) summarised the position as follows: “It was not only the combat troops who were overstretched in these circumstances. The current military criminal justice system is relevant, independent, and fit for purpose; but even the most effective criminal justice system will struggle to investigate, advise on and prosecute cases where the civil infrastructure is effectively absent. And so, in the immediate aftermath of the ground war, the Service Police faced particular challenges in gathering evidence of a quality that would meet the very high standards required under English law. National records – usually an integral reference point for criminal investigations – were largely absent; a different understanding of the law between Iraqi people and British police added to an atmosphere of hostility and suspicion; and the army was facing an increasingly dangerous operational environment – indeed, on 24 June 2003, six members of the Royal Military Police were killed in Al Amarah. Local customs similarly hampered the execution of British standards of justice: in the case of Nadhem Abdullah, for instance, the family of the deceased refused to hand over the body for forensic examination – significantly reducing the quality of evidence surrounding his death. ” The Aitken Report also referred to the problems caused to the Special Investigation Branch, when attempting to investigate serious allegations of abuse, by the sense of loyalty to fellow soldiers which could lead to a lack of cooperation from army personnel and to what the judge in the court martial concerning the killing of the sixth applicant ’ s son had described as a “wall of silence” from some of the military witnesses called to give evidence. 31. On conclusion of a Special Investigation Branch investigation, the Special Investigation Branch officer would report in writing to the Commanding Officer of the unit involved. Such a report would include a covering letter and a summary of the evidence, together with copies of any documentary evidence relevant to the investigation in the form of statements from witnesses and investigators. The report would not contain any decision as to the facts or conclusions as to what had happened. It was then for the Commanding Officer to decide whether or not to refer the case to the Army Prosecuting Authority for possible trial by court martial. 32. The Aitken Report, dated 25 January 2008 ( see paragraph 69 below ), commented on the prosecution of armed forces personnel in connection with the death of Iraqi civilians, as follows: “Four cases involving Iraqi deaths as a result of deliberate abuse have been investigated, and subsequently referred to the Army Prosecuting Authority (APA) on the basis there was a prima facie case that the victims had been killed unlawfully by British troops. The APA preferred charges on three of these cases on the basis that it considered there was a realistic prospect of conviction, and that trial was in the public and service interest; and yet not one conviction for murder or manslaughter has been recorded. The army ’ s position is straightforward on the issue of prosecution. Legal advice is available for commanding officers and higher authorities to assist with decisions on referring appropriate cases to the APA. The Director Army Legal Services (DALS), who is responsible to the Adjutant General for the provision of legal services to the army, is additionally appointed by the Queen as the APA. In that capacity, he has responsibility for decisions on whether to direct trial for all cases referred by the military chain of command, and for the prosecution of all cases tried before courts martial, the Standing Civilian Court and the Summary Appeal Court and for appeals before the Courts-Martial Appeal Court and the House of Lords. DALS delegates these functions to ALS [(Army Legal Services)] officers appointed as prosecutors in the APA, and Brigadier Prosecutions has day - to - day responsibility for the APA. The APA is under the general superintendence of the Attorney General and is, rightly, independent of the army chain of command: the APA alone decides whether to direct court-martial trial and the appropriate charges, and neither the army chain of command, nor ministers, officials nor anyone else can make those decisions. However complex the situation in which it finds itself, the army must operate within the law at all times; once the APA has made its decision (based on the evidence and the law), the army has to accept that the consequences of prosecuting particular individuals or of particular charges may have a negative impact on its reputation. The absence of a single conviction for murder or manslaughter as a result of deliberate abuse in Iraq may appear worrying, but it is explicable. Evidence has to be gathered (and, as already mentioned, this was not an easy process); that evidence has to be presented in court; and defendants are presumed innocent unless the prosecution can prove its case beyond reasonable doubt. That is a stiff test – no different to the one that applies in our civilian courts. In the broader context, the outcome from prosecutions brought to court martial by the APA is almost exactly comparable with the equivalent civilian courts: for example, as at the end of 2006, the conviction rates after trial in the court - martial system stood at 12% as compared with 13% in the Crown Courts. It is inevitable that some prosecutions will fail; but this does not mean that they should not have been brought in the first place. It is the courts, after all, that determine guilt, not the prosecutors. Indeed, the fact that only a small number of all the 200-odd cases investigated by Service Police in Iraq resulted in prosecution could be interpreted as both a positive and a negative indicator: positive, in that the evidence and the context did not support the preferring of criminal charges; but negative, in that we know that the Service Police were hugely hampered, in some cases, in their ability to collect evidence of a high enough standard for charges to be preferred or for cases to be successfully prosecuted. It is important to note that none of this implies any fundamental flaws in the effectiveness of the key elements of the military criminal justice system. Both the Special Investigation Branch of the Royal Military Police (RMP(SIB)) and the APA were independently inspected during 2007. The police inspection reported that ‘ ... Her Majesty ’ s Inspectorate of Constabulary assess the RMP(SIB) as having the capability and capacity to run a competent level 3 (serious criminal) reactive investigation ’; and the inspection of the APA in February and March 2007 by Her Majesty ’ s Crown Prosecution Service Inspectorate concluded that: ‘ ... the APA undertakes its responsibilities in a thorough and professional manner, often in difficult circumstances ’, adding that 95.7% of decisions to proceed to trial were correct on evidential grounds, and 100% of decisions to proceed to trial were properly based on public or service interest grounds. ” E. The deaths of the applicants ’ relatives 33. The following accounts are based on the witness statements of the applicants and the British soldiers involved in each incident. These statements were also submitted to the domestic courts and, as regards all but the fifth applicant, summarised in their judgments (particularly the judgment of the Divisional Court). 1. The first applicant 34. The first applicant is the brother of Hazim Jum ’ aa Gatteh Al-Skeini (“Hazim Al-Skeini”), who was 23 years old at the time of his death. Hazim Al-Skeini was one of two Iraqis from the Beini Skein tribe who were shot dead in the Al - Majidiyah area of Basra just before midnight on 4 August 2003 by Sergeant A. , the Commander of a British patrol. 35. In his witness statement, the first applicant explained that, during the evening in question, various members of his family had been gathering at a house in Al - Majidiyah for a funeral ceremony. In Iraq it is customary for guns to be discharged at a funeral. The first applicant stated that he was engaged in receiving guests at the house, as they arrived for the ceremony, and saw his brother fired upon by British soldiers as he was walking along the street towards the house. According to the first applicant, his brother was unarmed and only about ten metres away from the soldiers when he was shot and killed. Another man with him was also killed. He had no idea why the soldiers opened fire. 36. According to the British account of the incident, the patrol, approaching on foot and on a very dark night, heard heavy gunfire from a number of different points in Al - Majidiyah. As the patrol got deeper into the village they came upon two Iraqi men in the street. One was about five metres from Sergeant A. , who was leading the patrol. Sergeant A. saw that he was armed and pointing the gun in his direction. In the dark, it was impossible to tell the position of the second man. Believing that his life and those of the other soldiers in the patrol were at immediate risk, Sergeant A. opened fire on the two men without giving any verbal warning. 37. The following day, Sergeant A. produced a written statement describing the incident. This was passed to the Commanding Officer of his battalion, Colonel G. , who took the view that the incident fell within the rules of engagement and duly wrote a report to that effect. Colonel G. sent the report to the Brigade, where it was considered by Brigadier Moore. Brigadier Moore queried whether the other man had been pointing his gun at the patrol. Colonel G. wrote a further report that dealt with this query to Brigadier Moore ’ s satisfaction. The original report was not retained in the Brigade records. Having considered Colonel G. ’ s further report, as did his Deputy Chief of Staff and his legal adviser, Brigadier Moore was satisfied that the actions of Sergeant A. fell within the rules of engagement and so he did not order any further investigation. 38. On 11, 13 and 16 August 2003 Colonel G. met with members of the dead men ’ s tribe. He explained why Sergeant A. had opened fire and gave the tribe a charitable donation of 2,500 United States dollars (USD) from the British Army Goodwill Payment Committee, together with a letter explaining the circumstances of the deaths and acknowledging that the deceased had not intended to attack anyone. 2. The second applicant 39. The second applicant is the widow of Muhammad Salim, who was shot and fatally wounded by Sergeant C. shortly after midnight on 6 November 2003. 40. The second applicant was not present when her husband was shot and her evidence was based on what she was told by those who were present. She stated that on 5 November 2003, during Ramadan, Muhammad Salim went to visit his brother-in-law at his home in Basra. At about 11. 30 p. m. British soldiers raided the house. They broke down the front door. One of the British soldiers came face - to - face with the second applicant ’ s husband in the hall of the house and fired a shot at him, hitting him in the stomach. The British soldiers took him to the Czech military hospital, where he died on 7 November 2003. 41. According to the British account of the incident, the patrol had received information from an acquaintance of one of their interpreters that a group of men armed with long - barrelled weapons, grenades and rocket - propelled grenades had been seen entering the house. The order was given for a quick search - and - arrest operation. After the patrol failed to gain entry by knocking, the door was broken down. Sergeant C. entered the house through the front door with two other soldiers and cleared the first room. As he entered the second room, he heard automatic gunfire from within the house. When Sergeant C. moved forward into the next room by the bottom of the stairs, two men armed with long - barrelled weapons rushed down the stairs towards him. There was no time to give a verbal warning. Sergeant C. believed that his life was in immediate danger. He fired one shot at the leading man, the second applicant ’ s husband, and hit him in the stomach. He then trained his weapon on the second man who dropped his gun. The applicant ’ s family subsequently informed the patrol that they were lawyers and were in dispute with another family of lawyers over the ownership of office premises, which had led to their being subjected to two armed attacks which they had reported to the police, one three days before and one only thirty minutes before the patrol ’ s forced entry. 42. On 6 November 2003 the Company Commander produced a report of the incident. He concluded that the patrol had deliberately been provided with false intelligence by the other side in the feud. Having considered the report and spoken to the Company Commander, Colonel G. came to the conclusion that the incident fell within the rules of engagement and did not require any further Special Investigation Branch investigation. He therefore produced a report to that effect the same day and forwarded it to the Brigade, where it was considered by Brigadier General Jones. Brigadier Jones discussed the matter with his Deputy Chief of Staff and his legal adviser. He also discussed the case with his political adviser. As a result, Brigadier Jones also concluded that it was a straightforward case that fell within the rules of engagement and duly issued a report to that effect. The applicant, who had three young children and an elderly mother-in-law to support, received USD 2,0 00 from the British Army Goodwill Payment Committee, together with a letter setting out the circumstances of the killing. 3. The third applicant 43. The third applicant is the widower of Hannan Mahaibas Sadde Shmailawi, who was shot and fatally wounded on 10 November 2003 at the Institute of Education in the Al - Maqaal area of Basra, where the third applicant worked as a night porter and lived with his wife and family. 44. According to the third applicant ’ s witness statement, at about 8 p. m. on the evening in question, he and his family were sitting round the dinner table when there was a sudden burst of machine - gunfire from outside the building. Bullets struck his wife in the head and ankles and one of his children on the arm. The applicant ’ s wife and child were taken to hospital, where his child recovered but his wife died. 45. According to the British account of the incident, the third applicant ’ s wife was shot during a firefight between a British patrol and a number of unknown gunmen. When the area was illuminated by parachute flares, at least three men with long - barrelled weapons were seen in open ground, two of whom were firing directly at the British soldiers. One of the gunmen was shot dead during this exchange of fire with the patrol. After about seven to ten minutes, the firing ceased and armed people were seen running away. A woman (the third applicant ’ s wife ) with a head injury and a child with an arm injury were found when the buildings were searched. Both were taken to hospital. 46. The following morning, the Company Commander produced a report concerning the incident, together with statements from the soldiers involved. After he had considered the report and statements, Colonel G. came to the conclusion that the incident fell within the rules of engagement and did not require any further Special Investigation Branch investigation. He duly produced a report to that effect, which he then forwarded to the Brigade. The report was considered by Brigadier Jones, who also discussed the matter with his Deputy Chief of Staff, his legal adviser and Colonel G. As a result, Brigadier Jones came to the conclusion that the incident fell within the rules of engagement and required no further investigation. 4. The fourth applicant 47. The fourth applicant is the brother of Waleed Fayay Muzban, aged 43, who was shot and fatally injured on the night of 24 August 2003 by Lance Corporal S. in the Al - Maqaal area of Basra. 48. The fourth applicant was not present when his brother was shot, but he claims that the incident was witnessed by his neighbours. In his witness statement he stated that his understanding was that his brother was returning home from work at about 8.30 p. m. on the evening in question. He was driving a minibus along a street called Souq Hitteen, near where he and the fourth applicant lived. For no apparent reason, according to the applicant ’ s statement, the minibus “came under a barrage of bullets”, as a result of which Waleed was mortally wounded in the chest and stomach. 49. Lance Corporal S. was a member of a patrol carrying out a check around the perimeter of a Coalition military base (Fort Apache), where three Royal Military Police officers had been killed by gunfire from a vehicle the previous day. According to the British soldier ’ s account of the incident, Lance Corporal S. became suspicious of a minibus, with curtains over its windows, that was being driven towards the patrol at a slow speed with its headlights dipped. When the vehicle was signalled to stop, it appeared to be trying to evade the soldiers so Lance Corporal S. pointed his weapon at the driver and ordered him to stop. The vehicle then stopped and Lance Corporal S. approached the driver ’ s door and greeted the driver (the fourth applicant ’ s brother ). The driver reacted in an aggressive manner and appeared to be shouting over his shoulder to people in the curtained-off area in the back of the vehicle. When Lance Corporal S. tried to look into the back of the vehicle, the driver pushed him away by punching him in the chest. The driver then shouted into the back of the vehicle and made a grab for Lance Corporal S. ’ s weapon. Lance Corporal S. had to use force to pull himself free. The driver then accelerated away, swerving in the direction of various other members of the patrol as he did so. Lance Corporal S. fired at the vehicle ’ s tyres and it came to a halt about 100 metres from the patrol. The driver turned and again shouted into the rear of the vehicle. He appeared to be reaching for a weapon. Lance Corporal S. believed that his team was about to be fired on by the driver and others in the vehicle. He therefore fired about five aimed shots. As the vehicle sped off, Lance Corporal S. fired another two shots at the rear of the vehicle. After a short interval, the vehicle screeched to a halt. The driver got out and shouted at the British soldiers. He was ordered to lie on the ground. The patrol then approached the vehicle to check for other armed men. The vehicle proved to be empty. The driver was found to have three bullet wounds in his back and hip. He was given first aid and then taken to the Czech military hospital where he died later that day or the following day. 50. The Special Investigation Branch commenced an investigation on 29 August 2003. The investigators recovered fragments of bullets, empty bullet cases and took digital photographs of the scene. The vehicle was recovered and transported to the United Kingdom. The deceased ’ s body had been returned to the family for burial and no post mortem had been carried out, so the Special Investigation Branch took statements from the two Iraqi surgeons who had operated on him. A meeting was arranged with the family to seek their consent for an exhumation and post mortem, but this was delayed. Nine military witnesses involved in the incident were interviewed and had statements taken and a further four individuals were interviewed but found to have no evidence to offer. Lance Corporal S. was not, however, questioned. Since he was suspected by the Special Investigation Branch of having acted contrary to the rules of engagement, it was Special Investigation Branch practice not to interview him until there was enough evidence to charge him. A forensic examination was carried out at the scene on 6 September 2003. 51. On 29 August 2003 Colonel G. sent his initial report concerning the incident to Brigadier Moore. In it he stated that he was satisfied that Lance Corporal S. believed that he was acting lawfully within the rules of engagement. However, Colonel G. went on to express the view that it was a complex case that would benefit from a Special Investigation Branch investigation. After Brigadier Moore had considered Colonel G. ’ s report, discussed the matter with his Deputy Chief of Staff and taken legal advice, it was decided that the matter could be resolved with a unit - level investigation, subject to a number of queries being satisfactorily answered. As a result, Colonel G. produced a further report dated 12 September 2003, in which he dealt with the various queries and concluded that a Special Investigation Branch investigation was no longer required. After discussing the matter again with his Deputy Chief of Staff and having taken further legal advice, Brigadier Moore concluded that the case fell within the rules of engagement. 52. By this stage, Brigadier Moore had been informed that the Special Investigation Branch had commenced an investigation into the incident. On 17 September 2003 Colonel G. wrote to the Special Investigation Branch asking them to terminate the investigation. The same request was made by Brigadier Moore through his Chief of Staff during a meeting with the Senior Investigating Officer from the Special Investigation Branch. The Special Investigation Branch investigation was terminated on 23 September 2003. The deceased ’ s family received USD 1,400 from the British Army Goodwill Payment Committee and a further USD 3,000 in compensation for the minibus. 53. Following the fourth applicant ’ s application for judicial review (see paragraph 73 below), the case was reviewed by senior investigation officers in the Special Investigation Branch and the decision was taken to reopen the investigation. The investigation was reopened on 7 June 2004 and completed on 3 December 2004, despite difficulties caused by the very dangerous conditions in Iraq at that time. 54. On completing the investigation, the Special Investigation Branch reported to the soldier ’ s Commanding Officer, who referred the case to the Army Prosecuting Authority in February 2005. The Army Prosecuting Authority decided that a formal preliminary examination of the witnesses should be held, in order to clarify any uncertainties and ambiguities in the evidence. Depositions were taken by the Army Prosecuting Authority from the soldiers who had witnessed the shooting, and who were the only known witnesses. Advice was obtained from an independent senior counsel, who advised that there was no realistic prospect of conviction, since there was no realistic prospect of establishing that Lance Corporal S. had not fired in self ‑ defence. The file was sent to the Attorney General, who decided not to exercise his jurisdiction to order a criminal prosecution. 5. The fifth applicant 55. The fifth applicant is the father of Ahmed Jabbar Kareem Ali, who died on 8 May 2003, aged 1 5. 56. According to the statements made by the fifth applicant for the purpose of United Kingdom court proceedings, on 8 May 2003 his son did not return home at 1.30 p.m. as expected. The fifth applicant went to look for him at Al-Saad Square, where he was told that British soldiers had arrested some Iraqi youths earlier in the day. The applicant continued to search for his son and was contacted the following morning by A. , another young Iraqi, who told the applicant that he, the applicant ’ s son and two others had been arrested by British soldiers the previous day, beaten up and forced into the waters of the Shatt Al-Arab. Later, on 9 May 2003, the applicant ’ s brother informed “ the British police ” about the incident and was requested to surrender Ahmed ’ s identity card. Having spent several days waiting and searching, the applicant found his son ’ s body in the water on 10 May 2003. 57. The applicant immediately took his son ’ s body to “ the British police station ”, where he was told to take the body to the local hospital. The Iraqi doctor on duty told the applicant that he was not qualified to carry out a post mortem and that there were no pathologists available. The applicant decided to bury his son, since in accordance with Islamic practice burial should take place within twenty-four hours of death. 58. About ten to fifteen days after his son ’ s funeral, the applicant returned to “ the British police station ” to ask for an investigation, but he was informed that it was not the business of “the British police” to deal with such matters. He returned to the “ police station ” some days later, and was informed that the Royal Military Police wished to contact him and that he should go to the presidential palace. The following day, the applicant met with Special Investigation Branch officers at the presidential palace and was informed that an investigation would be commenced. 59. The Special Investigation Branch interviewed A. and took a statement from him. They took statements from the applicant and other family members. At least a month after the incident, the investigators went to Al-Saad Square and retrieved clothing belonging to the applicant ’ s son and to the other young men who had been arrested at the same time. At the end of the forty -day mourning period, the applicant consented to his son ’ s body being exhumed for post - mortem examination, but it was not possible at that point to establish either whether Ahmed had been beaten prior to death or what had been the cause of death. The applicant contends that he was never given an explanation as to the post - mortem findings and that he was not kept fully informed of the progress of the investigation in general, since many of the documents he was given were in English or had been badly translated into Arabic. 60. The applicant claims that eighteen months elapsed after the exhumation of his son ’ s body during which time he had no contact with the investigators. In August 2005 he was informed that four soldiers had been charged with manslaughter and that a trial would take place in England. The court martial was held between September 2005 and May 2006. By that time, three of the seven soldiers who had been accused of his homicide had left the army, and a further two were absent without leave. It was the prosecution case that the soldiers had assisted Iraqi police officers to arrest the four youths on suspicion of looting and that they had driven them to the river and forced them in at gunpoint “to teach them a lesson”. The applicant and A. gave evidence to the court martial in April 2006. The applicant found the trial process confusing and intimidating and he was left with the impression that the court was biased in favour of the accused. A. gave evidence that the applicant ’ s son had appeared to be in distress in the water, but that the soldiers had driven away without helping him. However, he was not able to identify the defendants as the soldiers involved. The defendants denied any responsibility for the death and were acquitted because A. ’ s evidence was found to be inconsistent and unreliable. 61. The applicant ’ s son ’ s case was one of the six cases investigated in the Aitken Report (see paragraph 69 below). Under the heading “Learning lessons from discipline cases” the report stated: “ ... we know that two initial police reports were produced in May 2003 relating to allegations that, on two separate occasions but within the space of just over a fortnight, Iraqis had drowned in the Shat ’ al-Arab at the hands of British soldiers. That one of those cases did not subsequently proceed to trial is irrelevant: at the time, an ostensibly unusual event was alleged to have occurred twice in a short space of time. With all their other duties, the commanders on the ground cannot reasonably be blamed for failing to identify what may or may not have been a trend; but a more immediate, effective system for referring that sort of information to others with the capacity to analyse it might have identified such a trend. In fact, the evidence suggests that these were two isolated incidents; but had they been a symptom of a more fundamental failing, they might have been overlooked. By comparison, if there had been two reports of a new weapon being used by insurgents to attack British armoured vehicles within a fortnight, it is certain that the lessons learned process would have identified its significance, determined the counter-measures needed to combat it, and quickly disseminated new procedures to mitigate the risk. The fact that this process does not apply to disciplinary matters is only partly explained by the need for confidentiality and the preservation of evidence; but it is a failure in the process that could be fairly easily rectified without compromising the fundamental principle of innocence until proven guilty. ” The report continued, under the heading “Delay” : “The amount of time taken to resolve some of the cases with which this report is concerned has been unacceptable. ... The court martial in connection with the death of Ahmed Jabbar Kareem did not convene until September 2005, twenty-eight months after he died; by that time, three of the seven soldiers who had been accused of his murder had left the army, and a further two were absent without leave. In most cases, it is inappropriate for the army to take administrative action against any officer or soldier until the disciplinary process has been completed, because of the risk of prejudicing the trial. When that disciplinary process takes as long as it has taken in most of these cases, then the impact of any subsequent administrative sanctions is significantly reduced – indeed, such sanctions are likely to be counterproductive. Moreover, the longer the disciplinary process takes, the less likely it is that the chain of command will take proactive measures to rectify the matters that contributed to the commission of the crimes in the first place.” 62. The fifth applicant brought civil proceedings against the Ministry of Defence for damages in respect of his son ’ s death. The claim was settled without going to hearing, by the payment of 115,000 pounds sterling (GBP) on 15 December 2008. In addition, on 20 February 2009 Major General Cubbitt wrote to the fifth applicant and formally apologised on behalf of the British army for its role in his son ’ s death. 6. The sixth applicant 63. The sixth applicant is a Colonel in the Basra police force. His son, Baha Mousa, was aged 26 when he died while in the custody of the British army, three days after having been arrested by soldiers on 14 September 2003. 64. According to the sixth applicant, on the night of 13 to 14 September 2003 his son had been working as a receptionist at the Ibn Al - Haitham Hotel in Basra. Early in the morning of 14 September, the applicant went to the hotel to pick his son up from work. On his arrival he noticed that a British unit had surrounded the hotel. The applicant ’ s son and six other hotel employees were lying on the floor of the hotel lobby with their hands behind their heads. The applicant expressed his concern to the lieutenant in charge of the operation, who reassured him that it was a routine investigation that would be over in a couple of hours. On the third day after his son had been detained, the sixth applicant was visited by a Royal Military Police unit. He was told that his son had been killed in custody at a British military base in Basra. He was asked to identify the corpse. The applicant ’ s son ’ s body and face were covered in blood and bruises; his nose was broken and part of the skin of his face had been torn away. 65. One of the other hotel employees who was arrested on 14 September 2003 stated in a witness statement prepared for the United Kingdom domestic court proceedings that, once the prisoners had arrived at the base, the Iraqi detainees were hooded, forced to maintain stress positions, denied food and water and kicked and beaten. During the detention, Baha Mousa was taken into another room, where he could be heard screaming and moaning. 66. Late on 15 September 2003 Brigadier Moore, who had taken part in the operation in which the hotel employees had been arrested, was informed that Baha Mousa was dead and that other detainees had been ill-treated. The Special Investigation Branch was immediately called in to investigate the death. Since local hospitals were on strike, a pathologist was flown in from the United Kingdom. Baha Mousa was found to have ninety-three identifiable injuries on his body and to have died of asphyxiation. Eight other Iraqis had also been inhumanely treated, with two requiring hospital treatment. The investigation was concluded in early April 2004 and the report distributed to the unit ’ s chain of command. 67. On 14 December 2004 the Divisional Court held that the inquiry into the applicant ’ s son ’ s death had not been effective (see paragraph 77 below). On 21 December 2005 the Court of Appeal decided to remit the question to the Divisional Court since there had been further developments (see paragraph 81 below). 68. On 19 July 2005 seven British soldiers were charged with criminal offences in connection with Baha Mousa ’ s death. On 19 September 2006, at the start of the court martial, one of the soldiers pleaded guilty to the war crime of inhumane treatment but not guilty to manslaughter. On 14 February 2007 charges were dropped against four of the seven soldiers and on 13 March 2007 the other two soldiers were acquitted. On 30 April 2007 the soldier convicted of inhumane treatment was sentenced to one year ’ s imprisonment and dismissal from the army. 69. On 25 January 2008 the Ministry of Defence published a report written by Brigadier Robert Aitken concerning six cases of alleged deliberate abuse and killing of Iraqi civilians, including the deaths of the fifth and sixth applicants ’ sons (“the Aitken Report” ). 70. The applicant brought civil proceedings against the Ministry of Defence, which concluded in July 2008 by the formal and public acknowledgement of liability and the payment of GBP 575,000 in compensation. 71. In a written statement given in Parliament on 14 May 2008, the Secretary of State for Defence announced that there would be a public inquiry into the death of Baha Mousa. The inquiry is chaired by a retired Court of Appeal judge, with the following terms of reference: “To investigate and report on the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him, taking account of the investigations which have already taken place, in particular where responsibility lay for approving the practice of conditioning detainees by any members of the 1st Battalion, The Queen ’ s Lancashire Regiment in Iraq in 2003, and to make recommendations.” At the time of adoption of the present judgment, the inquiry had concluded the oral hearings but had not yet delivered its report. F. The domestic proceedings under the Human Rights Act 1. The Divisional Court 72. On 26 March 2004 the Secretary of State for Defence decided, in connection with the deaths of thirteen Iraqi civilians including the relatives of the six applicants, (1) not to conduct independent inquiries into the deaths; (2) not to accept liability for the deaths; and (3) not to pay just satisfaction. 73. The thirteen claimants applied for judicial review of these decisions, seeking declarations that both the procedural and the substantive obligations of Article 2 (and, in the case of the sixth applicant, Article 3 ) of the Convention had been violated as a result of the deaths and the Secretary of State ’ s refusal to order any investigation. On 11 May 2004 a judge of the Divisional Court directed that six test cases would proceed to hearing (including the cases of the first, second, third, fourth and sixth applicants) and that the other seven cases (including that of the fifth applicant) would be stayed pending the resolution of the preliminary issues. 74. On 14 December 2004 the Divisional Court rejected the claims of the first four applicants but accepted the claim of the sixth applicant ([2004] EWHC 2911 (Admin)). Having reviewed this Court ’ s case-law, in particular Banković and Others v. Belgium and Others ( (dec.) [GC], no. 52207/99, ECHR 2001-XII ), it held that, essentially, jurisdiction under Article 1 of the Convention was territorial, although there were exceptions. One exception applied where a State Party had effective control of an area outside its own territory. This basis of jurisdiction applied only where the territory of one Contracting State was controlled by another Contracting State, since the Convention operated essentially within its own regional sphere and permitted no vacuum within that space. This basis of jurisdiction could not, therefore, apply in Iraq. 75. There was an additional exception, which arose from the exercise of authority by a Contracting State ’ s agents anywhere in the world, but this was limited to specific cases recognised by international law and identified piecemeal in the Court ’ s case-law. No general rationale in respect of this group of exceptions was discernable from the Court ’ s case-law. However, the instances recognised so far arose out of the exercise of State authority in or from a location which had a discrete quasi-territorial quality, or where the State agent ’ s presence in the foreign State was consented to by that State and protected by international law, such as embassies, consulates, vessels and aircraft registered in the respondent State. A British military prison, operating in Iraq with the consent of the Iraqi sovereign authorities and containing arrested suspects, could be covered by this narrow exception. It was arguable that Öcalan v. Turkey ( no. 46221/99, 12 March 2003 ), also fell into this category, since the applicant was arrested in a Turkish aircraft and taken immediately to Turkey. However, the Divisional Court did not consider that the Chamber judgment in Öcalan should be treated as “illuminating”, since Turkey had not raised any objection based on lack of jurisdiction at the admissibility stage. 76. It followed that the deaths as a result of military operations in the field, such as those complained of by the first four applicants, did not fall within the United Kingdom ’ s jurisdiction under Article 1 of the Convention, but that the death of the sixth applicant ’ s son, in a British military prison, did. The Divisional Court further held that the scope of the Human Rights Act 1998 was identical to that of the Convention for these purposes. 77. The Divisional Court found that there had been a breach of the investigative duty under Articles 2 and 3 of the Convention in respect of the sixth applicant ’ s son since, by July 2004, some ten months after the killing, the results of the investigation were unknown and inconclusive. The judge commented that: “ 329. ... Although there has been evidence of a rather general nature about the difficulties of conducting investigations in Iraq at that time – about basic security problems involved in going to Iraqi homes to interview people, about lack of interpreters, cultural differences, logistic problems, lack of records, and so forth – without any further understanding of the outcome of the [Special Investigation Branch ’ s ] report, it is impossible to understand what, if any, relevance any of this has to a death which occurred not in the highways or byways of Iraq, but in a military prison under the control of British forces. ... 330. Although Captain Logan says that identity parades were logistically very difficult, detainees were moved to a different location, and some military witnesses had returned to the UK, she also says that these problems only delayed the process but did not prevent it taking place ‘ satisfactorily ’ ... There is nothing else before us to explain the dilatoriness of the investigative process: which might possibly be compared with the progress, and open public scrutiny, which we have noted seems to have been achieved with other investigations arising out of possible offences in prisons under the control of US forces. As for the [Special Investigation Branch ’ s] report itself, on the evidence before us ... that would not contain any decision as to the facts or any conclusions as to what has or might have happened. 331. In these circumstances we cannot accept [counsel for the Government ’ s] submission that the investigation has been adequate in terms of the procedural obligation arising out of Article 2 of the Convention. Even if an investigation solely in the hands of the [Special Investigation Branch] might be said to be independent, on the grounds that the [Special Investigation Branch] are hierarchically and practically independent of the military units under investigation, as to which we have doubts in part because the report of the [Special Investigation Branch] is to the unit chain of command itself, it is difficult to say that the investigation which has occurred has been timely, open or effective. ” In respect of the other five deaths, the judge considered that, if he were wrong on the jurisdiction issue and the claims did fall within the scope of the Convention, the investigative duty under Article 2 had not been met, for the following reasons: “ 337. ... in all these cases, as in the case of Mr Mousa, the United Kingdom authorities were proceeding on the basis that the Convention did not apply. Thus the immediate investigations were in each case conducted, as a matter of policy, by the unit involved: only in case 4, that concerning Mr Waleed Muzban, was there any involvement of the [Special Investigation Branch], and that was stood down, at any rate before being reopened (at some uncertain time) upon a review of the file back in the UK. The investigations were therefore not independent. Nor were they effective, for they essentially consisted only in a comparatively superficial exercise, based on the evidence of the soldiers involved themselves, and even then on a paucity of interviews or witness statements, an exercise which was one-sided and omitted the assistance of forensic evidence such as might have become available from ballistic or medical expertise. ... 339. In connection with these cases, [counsel for the Government ’ s] main submission was that, in extremely difficult situations, both in operational terms in the field and in terms of post - event investigations, the army and the authorities had done their best. He particularly emphasised the following aspects of the evidence. There was no rule of law in Iraq; at the start of the occupation there was no police force at all, and at best the force was totally inadequate, as well as being under constant attack; although the Iraqi courts were functioning, they were subject to intimidation; there was no local civil inquest system or capability; the local communications systems were not functioning; there were no mortuaries, no post - mortem system, no reliable pathologists; the security situation was the worst ever experienced by seasoned soldiers; there was daily fighting between tribal and criminal gangs; the number of troops available were small; and cultural differences exacerbated all these difficulties. 340. We would not discount these difficulties, which cumulatively must have amounted to grave impediments for anyone concerned to conduct investigations as they might have liked to have carried them out. However, irrespective of [counsel for the applicants ’ ] submission, in reliance on the Turkish cases, that security problems provide no excuse for a failure in the Article 2 investigative duty, we would conclude that, on the hypothesis stated, the investigations would still not pass muster. They were not independent; they were one-sided; and the commanders concerned were not trying to do their best according to the dictates of Article 2. 341. That is not to say, however, that, in other circumstances, we would ignore the strategic difficulties of the situation. The Turkish cases are all concerned with deaths within the State Party ’ s own territory. In that context, the Court was entitled to be highly sceptical about the State ’ s own professions of difficulties in an investigative path which it in any event may hardly have chosen to follow. It seems to us that this scepticism cannot be so easily transplanted in the extraterritorial setting. ... ” 2. The Court of Appeal 78. The first four applicants appealed against the Divisional Court ’ s finding that their relatives did not fall within the United Kingdom ’ s jurisdiction. The Secretary of State also cross ‑ appealed against the finding in relation to the sixth applicant ’ s son; although he accepted before the Court of Appeal that an Iraqi in the actual custody of British soldiers in a military detention centre in Iraq was within the United Kingdom ’ s jurisdiction under Article 1 of the Convention, he contended that the Human Rights Act had no extraterritorial effect and that the sixth applicant ’ s claim was not, therefore, enforceable in the national courts. 79. On 21 December 2005 the Court of Appeal dismissed the appeals and the cross-appeal ([2005] EWCA Civ 1609). Having reviewed the Court ’ s case-law on jurisdiction under Article 1 of the Convention, Brooke LJ, who gave the leading judgment, held that a State could exercise extraterritorial jurisdiction when it applied control and authority over a complainant (which he termed “State agent authority”, abbreviated to “SAA”) and when it held effective control of an area outside its borders (“effective control of an area” or “ECA”), observing as follows: “80. I would therefore be more cautious than the Divisional Court in my approach to the Banković [ and Others ] judgment. It seems to me that it left open both the ECA and SAA approaches to extraterritorial jurisdiction, while at the same time emphasising (in paragraph 60) that because an SAA approach might constitute a violation of another State ’ s sovereignty (for example, when someone is kidnapped by the agents of a State on the territory of another State without that State ’ s invitation or consent), this route to any recognition that extraterritorial jurisdiction has been exercised within the meaning of an international treaty should be approached with caution.” He considered, inter alia, the cases of Öcalan v. Turkey ( [GC], no. 46221/99, ECHR 2005-IV ); Freda v. Italy ( (dec.), no. 8916/80, Commission decision of 7 October 1980, Decisions and Reports (DR) 21, p. 250 ); and Sánchez Ramirez v. France ( (dec.), no. 28780/95, Commission decision of 24 June 1996, DR 86-A, p. 155 ); and observed that these cases had nothing to do with the principle of public international law relating to activities within aircraft registered with a State flying over the territory of another State. Instead, the findings of jurisdiction in these cases were examples of the “ State agent authority” doctrine applying when someone was within the control and authority of agents of a Contracting State, even outside the espace juridique of the Council of Europe, and whether or not the host State consented to the exercise of control and authority on its soil. Applying the relevant principles to the facts of the case, he concluded that the sixth applicant ’ s son came within the control and authority of the United Kingdom, and therefore its jurisdiction, from the time he was arrested at the hotel. The relatives of the other claimants had not been under the control and authority of British troops at the time when they were killed, and were not therefore within the United Kingdom ’ s jurisdiction. He concluded in this connection that: “110. ... It is essential, in my judgment, to set rules which are readily intelligible. If troops deliberately and effectively restrict someone ’ s liberty he is under their control. This did not happen in any of these five cases. ” 80. He then examined whether, on the facts, it could be said that British troops were in effective control of Basra City during the period in question, such as to fix the United Kingdom with jurisdiction under the “effective control of an area” doctrine. On this point, Brooke LJ concluded as follows: “119. Basra City was in the [Coalition Provisional Authority] regional area called ‘ CPA South ’. During the period of military occupation there was a significant degree of British responsibility and authority in CPA South, although its staff were drawn from five different countries and until the end of July 2003 the regional coordinator was a Dane. Indeed, only one of the four governorate teams in CPA South was headed by a British coordinator. However, although the chain of command for the British military presence in Iraq led ultimately to a US general, the Al - Basra and Maysan provinces were an area of direct British military responsibility. As I have already said ..., the Secretary of State accepts that the UK was an Occupying Power within the meaning of Article 42 of the Hague Regulations ..., at least in those areas of southern Iraq, and particularly Basra City, where British troops exercised sufficient authority for this purpose. 120. But whatever may have been the position under the Hague Regulations, the question this court has to address is whether British troops were in effective control of Basra City for ECA purposes. The situation in August to November 2003 contrasts starkly with the situations in northern Cyprus and in the Russian-occupied part of Moldova which feature in Strasbourg case-law. In each of those cases part of the territory of a Contracting State was occupied by another Contracting State which had every intention of exercising its control on a long - term basis. The civilian administration of those territories was under the control of the Occupying State, and it deployed sufficient troops to ensure that its control of the area was effective. 121. [The statement of Brigadier Moore, whose command included the British forces in the Basra area between May and November 2003] tells a very different story. He was not provided with nearly enough troops and other resources to enable his brigade to exercise effective control of Basra City. ... [H] e described how the local police would not uphold the law. If British troops arrested somebody and gave them to the Iraqi police, the police would hand them over to the judiciary, who were themselves intimidated by the local tribes, and the suspected criminals were back on the streets within a day or two. This state of affairs gave the British no confidence in the local criminal justice system. It also diluted their credibility with local people. Although British troops arranged local protection for the judges, this made little difference. The prisons, for their part, were barely functioning. 122. After describing other aspects of the highly volatile situation in which a relatively small number of British military personnel were trying to police a large city as best they could, Brig [adier] Moore said ... : ‘ The combination of terrorist activity, the volatile situation and the ineffectiveness of Iraqi security forces meant that the security situation remained on a knife-edge for much of our tour. Despite our high work rate and best efforts, I felt that at the end of August 2003 we were standing on the edge of an abyss. It was only when subsequent reinforcements arrived ... and we started to receive intelligence from some of the Islamic parties that I started to regain the initiative. ’ 123. Unlike the Turkish army in northern Cyprus, the British military forces had no control over the civil administration of Iraq. ... 124. In my judgment it is quite impossible to hold that the UK, although an Occupying Power for the purposes of the Hague Regulations and [the] Geneva IV [Convention], was in effective control of Basra City for the purposes of [ the European Court ’ s ] jurisprudence at the material time. If it had been, it would have been obliged, pursuant to the Banković [ and Others ] judgment, to secure to everyone in Basra City the rights and freedoms guaranteed by the [ Convention ]. One only has to state that proposition to see how utterly unreal it is. The UK possessed no executive, legislative or judicial authority in Basra City, other than the limited authority given to its military forces, and as an Occupying Power it was bound to respect the laws in force in Iraq unless absolutely prevented (see Article 43 of the Hague Regulations ... ). It could not be equated with a civil power: it was simply there to maintain security, and to support the civil administration in Iraq in a number of different ways ... ” Sedley LJ observed, in connection with this issue : “194. On the one hand, it sits ill in the mouth of a State which has helped to displace and dismantle by force another nation ’ s civil authority to plead that, as an Occupying Power, it has so little control that it cannot be responsible for securing the population ’ s basic rights. ... [However, ] the fact is that it cannot: the invasion brought in its wake a vacuum of civil authority which British forces were and still are unable to fill. On the evidence before the Court they were, at least between mid-2003 and mid-2004, holding a fragile line against anarchy.” 81. The Court of Appeal unanimously concluded that, save for the death of the sixth applicant ’ s son, which fell within the “ State agent authority” exception, the United Kingdom did not have jurisdiction under Article 1 of the Convention. It decided that the sixth applicant ’ s claim also fell within the scope of the Human Rights Act 1998. Since the Divisional Court ’ s examination of the case, additional information had emerged about the investigation into the death of the sixth applicant ’ s son, including that court ‑ martial proceedings were pending against a number of soldiers. The Court of Appeal therefore remitted the question whether there had been an adequate investigation to the Divisional Court for reconsideration following the completion of the court - martial proceedings. 82. Despite his conclusion on jurisdiction, Brooke LJ, at the express invitation of the Government, commented on the adequacy of the investigations carried out into the deaths, as follows: “139. After all, the first two Articles of the [Convention] merely articulate the contemporary concern of the entire European community about the importance that must always be attached to every human life. ... Needless to say, the obligation to comply with these well-established international human rights standards would require, among other things, a far greater investment in the resources available to the Royal Military Police than was available to them in Iraq, and a complete severance of their investigations from the military chain of command. 140. In other words, if international standards are to be observed, the task of investigating incidents in which a human life is taken by British forces must be completely taken away from the military chain of command and vested in the [Royal Military Police]. It contains the requisite independence so long as it is free to decide for itself when to start and when to cease an investigation, and so long as it reports in the first instance to the [ Army Prosecuting Authority] and not to the military chain of command. It must then conduct an effective investigation, and it will be helped in this regard by the passages from [the European Court ’ s] case-law I have quoted. Many of the deficiencies highlighted by the evidence in this case will be remedied if the [Royal Military Police] perform this role, and if they are also properly trained and properly resourced to conduct their investigations with the requisite degree of thoroughness. ” 3. The House of Lords 83. The first four applicants appealed and the Secretary of State cross ‑ appealed to the House of Lords, which gave judgment on 13 June 2007 ([2007] UKHL 26). The majority of the House of Lords (Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood ) held that the general purpose of the Human Rights Act 1998 was to provide a remedial structure in domestic law for the rights guaranteed by the Convention, and that the 1998 Act should therefore be interpreted as applying wherever the United Kingdom had jurisdiction under Article 1 of the Convention. Lord Bingham of Cornhill, dissenting, held that the Human Rights Act had no extraterritorial application. 84. In relation to the first four applicants ’ complaints, the majority of the House of Lords found that the United Kingdom did not have jurisdiction over the deaths. Because of his opinion that the Human Rights Act had no extraterritorial application, Lord Bingham did not consider it useful to express a view as to whether the United Kingdom exercised jurisdiction within the meaning of Article 1 of the Convention. 85. Lord Brown, with whom the majority agreed, began by observing that ultimately the decision about how Article 1 of the Convention should be interpreted and applied was for the European Court of Human Rights, since the duty of the national court was only to keep pace with the Court ’ s case-law; there was a danger in a national court construing the Convention too generously in favour of an applicant, since the respondent State had no means of referring such a case to the Court. Lord Brown took as his starting - point the decision of the Grand Chamber in Banković and Others (cited above), which he described as “ a watershed authority in the light of which the Strasbourg jurisprudence as a whole has to be re-evaluated ”. He considered that the following propositions could be derived from the decision in Banković and Others ( paragraph 1 09 of the House of Lords judgment) : “ 1. Article 1 reflects an ‘ essentially territorial notion of jurisdiction ’ (a phrase repeated several times in the Court ’ s judgment), ‘ other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case ’ ( § 61). The Convention operates, subject to Article 56, ‘ in an essentially regional context and notably in the legal space ( espace juridique ) of the Contracting States ’ ( § 80) (i. e. within the area of the Council of Europe countries). 2. The Court recognises Article 1 jurisdiction to avoid a ‘ vacuum in human rights ’ protection ’ when the territory ‘ would normally be covered by the Convention ’ ( § 80) (i. e. in a Council of Europe country) where otherwise (as in northern Cyprus) the inhabitants ‘ would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed ’ ( § 80). 3. The rights and freedoms defined in the Convention cannot be ‘ divided and tailored ’ ( § 75). 4. The circumstances in which the Court has exceptionally recognised the extraterritorial exercise of jurisdiction by a State include: (i) Where the State ‘ through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by [the government of that territory] ’ ( § 71) (i. e. when otherwise there would be a vacuum within a Council of Europe country, the government of that country itself being unable ‘ to fulfil the obligations it had undertaken under the Convention ’ ( § 80) (as in northern Cyprus) ). (ii) ’ [ C ] ases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that State [where] customary international law and treaty provisions have recognised the extraterritorial exercise of jurisdiction ’ ( § 73). (iii) Certain other cases where a State ’ s responsibility ‘ could, in principle, be engaged because of acts ... which produced effects or were performed outside their own territory ’ ( § 69). Drozd [ and Janousek ] v. France [ and Spain ] ( [26 June] 1992 [, Series A no. 240] ) 14 EHRR 745 (at § 91) is the only authority specifically referred to in Banković [ and Others ] as exemplifying this class of exception to the general rule. Drozd [ and Janousek ], however, contemplated no more than that, if a French judge exercised jurisdiction extraterritorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within France ’ s jurisdiction. (iv) The Soering v. [ the ] United Kingdom ( [7 July] 1989 [, Series A no. 161] ) 11 EHRR 439 line of cases, the Court pointed out, involves action by the State whilst the person concerned is ‘ on its territory, clearly within its jurisdiction ’ ( [ Banković and Others ,] § 68) and not, therefore, the exercise of the State ’ s jurisdiction abroad. ” Lord Brown referred to the Öcalan, Freda and Sánchez Ramirez line of cases (cited above), in each of which the applicant was forcibly removed from a country outside the Council of Europe, with the full cooperation of the foreign authorities, to stand trial in the respondent State. He observed that this line of cases concerning “irregular extraditions” constituted one category of “exceptional” cases expressly contemplated by Banković and Others (cited above), as having “ special justification ” for extraterritorial jurisdiction under Article 1 of the Convention. He did not consider that the first four applicants ’ cases fell into any of the exceptions to the territorial principle so far recognised by the Court. 86. Lord Brown next considered the Court ’ s judgment in Issa and Others v. Turkey ( no. 31821/96, § 71, 16 November 2004 ), on which the applicants relied, and held as follows: “ 127. If and in so far as Issa [ and Others ] is said to support the altogether wider notions of Article 1 jurisdiction contended for by the appellants on this appeal, I cannot accept it. In the first place, the statements relied upon must be regarded as obiter dicta. Secondly, as just explained, such wider assertions of jurisdiction are not supported by the authorities cited (at any rate, those authorities accepted as relevant by the Grand Chamber in Banković [ and Others ] ). Thirdly, such wider view of jurisdiction would clearly be inconsistent both with the reasoning in Banković [ and Others ] and, indeed, with its result. Either it would extend the ‘ effective control ’ principle beyond the Council of Europe area (where alone it had previously been applied, as has been seen, to northern Cyprus, to the Ajarian Autonomous Republic in Georgia and to Transdniestria) to Iraq, an area (like the FRY [Federal Republic of Yugoslavia] considered in Banković [ and Others ] ) outside the Council of Europe – and, indeed, would do so contrary to the inescapable logic of the Court ’ s case - law on Article 56. Alternatively it would stretch to breaking point the concept of jurisdiction extending extraterritorially to those subject to a State ’ s ‘ authority and control ’. It is one thing to recognise as exceptional the specific narrow categories of cases I have sought to summarise above; it would be quite another to accept that whenever a Contracting State acts (militarily or otherwise) through its agents abroad, those affected by such activities fall within its Article 1 jurisdiction. Such a contention would prove altogether too much. It would make a nonsense of much that was said in Banković [ and Others ], not least as to the Convention being ‘ a constitutional instrument of European public order ’, operating ‘ in an essentially regional context ’, ‘ not designed to be applied throughout the world, even in respect of the conduct of Contracting States ’ ( § 80). It would, indeed, make redundant the principle of ‘ effective control ’ of an area: what need for that if jurisdiction arises in any event under a general principle of ‘ authority and control ’ irrespective of whether the area is (a) effectively controlled or (b) within the Council of Europe? 128. There is one other central objection to the creation of the wide basis of jurisdiction here contended for by the appellants under the rubric ‘ control and authority ’, going beyond that arising in any of the narrowly recognised categories already discussed and yet short of that arising from the effective control of territory within the Council of Europe area. Banković [ and Others ] (and later Assanidze [ v. Georgia [GC], no. 71503/01, ECHR 2004 ‑ II ] ) stands, as stated, for the indivisible nature of Article 1 jurisdiction: it cannot be ‘ divided and tailored ’. As Banković [ and Others ] had earlier pointed out (at § 40) ‘ the applicant ’ s interpretation of jurisdiction would invert and divide the positive obligation on Contracting States to secure the substantive rights in a manner never contemplated by Article 1 of the Convention ’. When, moreover, the Convention applies, it operates as ‘ a living instrument ’. Öcalan provides an example of this, a recognition that the interpretation of Article 2 has been modified consequent on ‘ the territories encompassed by the member States of the Council of Europe [having] become a zone free of capital punishment ’ ( § 163). (Paragraphs 64 and 65 of Banković [ and Others ], I may note, contrast on the one hand ‘ the Convention ’ s substantive provisions ’ and ‘ the competence of the Convention organs ’, to both of which the ‘ living instrument ’ approach applies and, on the other hand, the scope of Article 1 – ‘ the scope and reach of the entire Convention ’ – to which it does not.) Bear in mind too the rigour with which the Court applies the Convention, well exemplified by the series of cases from the conflict zone of south - eastern Turkey in which, the State ’ s difficulties notwithstanding, no dilution has been permitted of the investigative obligations arising under Articles 2 and 3. 129. The point is this: except where a State really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Indeed it goes further than that. During the period in question here it is common ground that the UK was an Occupying Power in southern Iraq and bound as such by [the] Geneva IV [Convention] and by the Hague Regulations. Article 43 of the Hague Regulations provides that the occupant ‘ shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country ’. The appellants argue that occupation within the meaning of the Hague Regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms. So far as this being the case, however, the occupants ’ obligation is to respect ‘ the laws in force ’, not to introduce laws and the means to enforce them (for example, courts and a justice system) such as to satisfy the requirements of the Convention. Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied. ” 87. Lord Rodger (at paragraph 83), with whom Baroness Hale agreed, and Lord Carswell ( paragraph 97) expressly held that the United Kingdom was not in effective control of Basra City and the surrounding area for purposes of jurisdiction under Article 1 of the Convention at the relevant time. 88. The Secretary of State accepted that the facts of the sixth applicant ’ s case fell within the United Kingdom ’ s jurisdiction under Article 1 of the Convention. The parties therefore agreed that if (as the majority held) the jurisdictional scope of the Human Rights Act was the same as that of the Convention, the sixth applicant ’ s case should be remitted to the Divisional Court, as the Court of Appeal had ordered. In consequence, it was unnecessary for the House of Lords to examine the jurisdictional issue in relation to the death of the sixth applicant ’ s son. However, Lord Brown, with whom the majority agreed, concluded: “132. ... As for the sixth case, I for my part would recognise the UK ’ s jurisdiction over Mr Mousa only on the narrow basis found established by the Divisional Court, essentially by analogy with the extraterritorial exception made for embassies (an analogy recognised too in Hess v. [ the ] United Kingdom ( [no. 6231/73, Commission decision of 28 May] 1975 [, Decisions and Reports 2, p. ] 72, a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X. v. [ Germany, no. 1611/62, Commission decision of 25 September 1965, Yearbook 8, p. 158 ] ). ... ” | This case concerned the deaths of the applicants’ six close relatives in Basrah in 2003 while the UK was an occupying power: three of the victims were shot dead or shot and fatally wounded by British soldiers; one was shot and fatally wounded during an exchange of fire between a British patrol and unknown gunmen; one was beaten by British soldiers and then forced into a river, where he drowned; and one died at a British military base, with 93 injuries identified on his body. |
805 | Right to a fair trial (Article 6 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1939 and lives in Yerevan. A. The applicant’s divorce and eviction claim and the proceedings concerning deprivation of his legal capacity 6. The applicant lived in a flat with his wife of 15 years and their son and the latter’s wife and child. 7. On 25 April 2012 the applicant instituted proceedings at the Shengavit District Court of Yerevan (“the District Court”) seeking to divorce his wife and evict her from his flat. The applicant submitted that their co-habitation had become unbearable, as in the past 12 years there had been conflicts in their relationship, as a result of which they had already de facto separated. The applicant submitted that the flat in question was not their common property and by law he was its sole owner. 8. On 4 July 2012 the applicant’s wife instituted “special” court proceedings ( հատուկ վարույթ ) under Article 168 of the Code of Civil Procedure (CCP), seeking to declare the applicant incapable. She submitted that the applicant had become unrecognisable: he constantly initiated arguments, made accusations and threatened her, other family members and in general people around him. He had recently threatened to take revenge and to throw all of them out onto the street. He had first applied to the police to have her and others’ registrations at that address cancelled and then lodged a claim to divorce and evict her which, she claimed, were signs of a mental disorder. The applicant’s wife explained that she had no choice but to apply to a court because the applicant’s behaviour posed a threat to the entire family, as his next step would be to evict the other family members and it was necessary to prevent that. Attached to her application was a statement signed by four of their neighbours, dated 28 June 2012, according to which the applicant had begun to behave strangely over the last few years, constantly seeking conflict with people around him and addressing absurd accusations at his wife and other family members. The neighbours added that they believed that the applicant was suffering from a mental disorder. 9. On the same date the District Court ordered the applicant’s examination by a panel of psychiatric experts, asking them to determine whether the applicant was able to understand the meaning of his actions and to control them. The District Court added that such examination was necessary because the evidence submitted by the applicant’s wife might be insufficient to grant her application. 10. On 25 September 2012 the panel of psychiatric experts issued their opinion after having examined the applicant and other evidence. The opinion, a two-page document, first summarised the statements made by his wife, neighbours and a local police officer, according to which in recent years the applicant had become suspicious, intolerant and argumentative, constantly seeking conflict with his wife and others around him, addressing absurd accusations at his wife, physically abusing her and accusing her of infidelity and of swindling him. It then analysed the applicant’s behaviour during an interview conducted with him. Based on the above, the panel concluded that the applicant suffered from “delusional disorder”, a mental illness whose symptoms had reached a degree which deprived the applicant of the ability to understand the meaning of his actions and to control them. 11. On 14 November 2012 the applicant’s son also instituted “special” court proceedings under Article 168 of the CCP, seeking to declare the applicant incapable on the ground that he was suffering from a mental disorder and required special care. 12. On 22 November 2012 the District Court decided to stay the divorce and eviction proceedings until final resolution of the two applications that had been initiated in respect of the applicant after he had filed his divorce and eviction claim. 13. On 13 December 2012 the District Court examined the application lodged by the applicant’s wife in the applicant’s presence and decided to reject it, noting the conflict of interest between the applicant and his wife and finding that the expert opinion of 25 September 2012 was necessary, but insufficient evidence for depriving the applicant of his legal capacity. The District Court concluded that the applicant’s wife’s application did not pursue a legitimate aim; hence depriving the applicant of his legal capacity in such circumstances would entail serious and irreversible consequences for him, making him a potential victim of a breach of the Convention. 14. On 9 January 2013 the applicant’s wife lodged an appeal against that judgment. 15. On 8 February 2013 the District Court, in a different composition, granted the application lodged by the applicant’s son and declared the applicant incapable. The District Court relied on the psychiatric expert opinion of 25 September 2012 and concluded that the applicant was unable to understand the meaning of his actions and to control them. The applicant was not notified of the application lodged by his son or of the hearing at the District Court. 16. No appeal was lodged against that judgment so it became final on 11 March 2013. 17. On 20 March 2013 the local body of guardianship and trusteeship appointed the applicant’s son as his guardian on the basis of the judgment of 8 February 2013. 18. On 28 March 2013 the Civil Court of Appeal reversed the judgment of 13 December 2012 and remitted the case upon the applicant’s wife’s appeal. The Civil Court of Appeal noted that at the time when the District Court examined the applicant’s wife’s application the final judgment of 8 February 2013 declaring the applicant incapable had not existed. Therefore she had not been able to present that judgment, which was key evidence for the resolution of the case, to the District Court for reasons beyond her control. The Civil Court of Appeal concluded that this reason alone was sufficient to reverse the judgment of 13 December 2012. 19. On 31 May 2013 the applicant, having learned about the judgment of 8 February 2013, lodged an appeal against it on the ground that the District Court had declared him incapable without notifying him of the hearing. 20. On 11 July 2013 the Civil Court of Appeal reversed the judgment of 8 February 2013 and ordered a new examination on the ground that the applicant had not been notified of the hearing of the case concerning his legal capacity. 21. On 30 August 2013 the District Court decided to involve the applicant as a third party to the proceedings. 22. On 3 October 2013 the District Court held a preparatory hearing in the applicant’s presence and decided to join the applications lodged by the applicant’s wife and son and examine them together. 23. On 31 October 2013 the District Court held another preparatory hearing. According to the record of the hearing, a representative of the local body of guardianship and trusteeship, R.S., represented the applicant, who was absent from the hearing. It is not clear from the record whether any issues were discussed at this hearing 24. On 18 November 2013 the District Court held a trial hearing with the participation of the applicant, his wife and R.S. After R.S. endorsed the applications lodged by the applicant’s wife and son relying on the psychiatric expert opinion of 25 September 2012, the presiding judge invited the applicant to state his position in that respect. The applicant denied that he was suffering from a serious mental disorder and argued that bribery was involved in the process of his psychiatric examination. He also stated that his relationship with his wife had been unbearable, since she had swindled him and frequently ridiculed him in front of others and that, as a result, he wanted to divorce her. The applicant also urged the judge to read “Article 48 of the European law” and “Article 32 of the Armenian law”. The presiding judge asked the applicant’s wife to explain the reasons why she sought to deprive the applicant of his legal capacity. The applicant’s wife firstly confirmed that they had had a conflictual relationship over the past 12 years and one of the reasons for this was that the applicant was overly jealous and suspicious. In addition, she stated that the applicant had threatened to stab himself with a knife. She explained that when the applicant filed the divorce and eviction claim, she had felt compelled to lodge an application seeking to declare him incapable. 25. On 29 November 2013, in the applicant’s presence, the District Court granted the joint application of his wife and son and declared the applicant incapable on the basis of Article 31 of the Civil Code (CC). Relying on the psychiatric expert opinion of 25 September 2012, the District Court held that, as a result of his mental disorder, the applicant was unable to understand the meaning of his actions and to control them. 26. The applicant lodged an appeal in which he argued that it had not been established that he was unable to understand the meaning of his actions. The District Court’s interpretation and application of Article 31 of the CC unduly restricted the scope of his civil rights. It was questionable whether the stated illness, namely “delusional disorder”, in fact deprived him of the ability to understand the meaning of his actions, as the contested judgment did not state any example or situation in which his alleged incapability was displayed. In addition, the District Court had failed to order a new medical assessment of his mental health and relied on the outdated opinion of 25 September 2012. Relying on Article 8 of the Convention and the Court’s judgment in the case of Shtukaturov v. Russia (no. 44009/05, ECHR 2008), the applicant argued that the failure of the domestic courts to scrutinise closely the degree of his illness was a breach of his right to private life. The applicant also submitted that the motivation of the applicant’s wife to deprive him of legal capacity was to deprive him of his flat. Finally, the applicant also expressed discontent with regard to his procedural status of a “third party”, as he could not be a mere “third party” in a case concerning deprivation of his legal capacity. 27. On 7 March 2014 the Civil Court of Appeal rejected the applicant’s appeal. It found that the psychiatric expert opinion of 25 September 2012 was sufficient evidence to declare the applicant incapable. The Court of Appeal stated that there was no evidence to rebut the findings made in that expert opinion or to suggest that the applicant had recovered. 28. The applicant lodged an appeal on points of law. 29. On 10 April 2014 the applicant wrote to the local body of guardianship and trusteeship asking that his opinion be taken into account when appointing his guardian. 30. On 30 April 2014 the Court of Cassation declared the applicant’s appeal on points of law inadmissible for lack of merit. 31. On 19 June 2014 the applicant’s son filed a request with the District Court seeking to withdraw the applicant’s divorce and eviction claim on the grounds that the applicant had been declared incapable. He also informed the District Court that he had been appointed as the applicant’s guardian by a decision of the local body of guardianship and trusteeship of 20 March 2013. 32. On 14 August 2014 the District Court decided to resume the divorce and eviction proceedings. 33. On 16 September 2014 the body of guardianship and trusteeship endorsed its decision of 20 March 2013 appointing the applicant’s son as his guardian, relying this time on the judgment of 29 November 2013. 34. On 1 October 2014 the District Court granted the request of the applicant’s son and terminated the divorce and eviction proceedings on the ground that the domestic law authorised a guardian to withdraw the claim of a person declared incapable, on the latter’s behalf. It also stated that the applicant’s son was appointed as guardian with the applicant’s consent and at his wish. B. Contestation of guardianship 35. On 19 February 2015 the applicant lodged an application with the Administrative Court seeking to quash the decision of the body of guardianship and trusteeship of 20 March 2013 and to appoint a new guardian. 36. On 25 February 2015 the Administrative Court declared the applicant’s application inadmissible on the ground that the applicant had been declared incapable, as a result of which he lacked standing to lodge such a claim. 37. The applicant appealed against that decision. 38. On 16 April 2015 the Administrative Court of Appeal dismissed the applicant’s appeal. 39. The applicant lodged an appeal on points of law. 40. On 28 September 2016 the Court of Cassation granted the applicant’s appeal on points of law and quashed the decision of the Administrative Court of Appeal. The Court of Cassation reasoned its decision to admit the applicant’s appeal for examination on the ground that it was necessary to clarify whether or not a person declared incapable had the right to contest the decision appointing his guardian. As regards the merits, the Court of Cassation took note of the applicant’s submissions on conflict of interest and regular disputes between him and his son. It found that, notwithstanding the duty of the body of guardianship and trusteeship under Article 37 § 3 of the CC to hear the opinion of the applicant and consider his wish when appointing his guardian, it had apparently failed to do so, even though the applicant had requested a hearing. It concluded that, in such circumstances, requiring the applicant to seek judicial protection as regards the appointment of his guardian exclusively through his guardian was, at least, ineffective in practice. As a person affected by the decision on the appointment of his guardian, the applicant should have enjoyed the right to contest such decision before a court since the impossibility to do so would violate the applicant’s right of access to court. 41. On 14 November 2016 the Administrative Court of Appeal quashed the decision of the Administrative Court of 25 February 2015 and remitted the case for new examination. 42. At the time of final exchange of observations between the parties, the proceedings in question were still pending before the Administrative Court and their outcome is unknown. C. The applicant’s attempts to restore his legal capacity 43. On 23 May 2014 the applicant filed a letter with the Minister of Health, seeking a new psychiatric examination to determine whether or not he was able to understand the meaning of his actions and control them, because almost two years had passed since the only psychiatric expert opinion of 25 September 2012. 44. On 2 June 2014 the Ministry of Health replied that it had no authority to order such an examination. 45. On 22 August 2014 the applicant applied to a psychiatric hospital seeking a psychiatric expert examination. The hospital apparently never responded to this request. 46. On the same date the applicant applied to the District Court, stating that his state of health required a review because almost two years had passed since the psychiatric expert opinion of 25 September 2012 which had been the sole ground for declaring him incapable, and requesting the court to assign a new psychiatric expert examination to determine whether or not his mental health allowed him to understand the meaning of his actions and to control them. 47. On 28 August 2014 the District Court replied to the applicant that, under Article 173 § 1 of the CCP, it was competent to declare a person who has recovered legally capable on the basis of a relevant psychiatric expert opinion, upon an application lodged by the guardian, a family member or the administration of a psychiatric institution. It had no authority to request a new psychiatric expert examination in view of the final judgment of 29 November 2013. 48. On 7 April 2015 the Constitutional Court, upon an application lodged by the Ombudsman, declared Article 173 § 1 of the CCP unconstitutional, in so far as it deprived persons seeking to restore their legal capacity of the possibility to avail themselves personally of the right to be heard by a court and to participate in the proceedings. 49. On 11 May 2015 the applicant, represented by lawyers, instituted proceedings in the District Court seeking to be declared legally capable. The District Court admitted the applicant’s application and granted him procedural status as a third party. 50. On 29 June 2015 the District Court ordered the applicant’s examination by a psychiatric expert panel in order to determine whether he was able to understand the meaning of his actions or to control them. 51. On 29 October 2015 the panel concluded that the applicant could be suffering from “delusional disorder”, “jealousy delirium” and “lightly expressed age-related personality change”. It stated that an inpatient examination was necessary, as it was unable to make a precise diagnosis of the applicant’s condition and answer the District Court’s questions. 52. The applicant’s lawyer lodged a request with the District Court seeking an outpatient psychiatric examination, arguing that an inpatient examination would adversely affect the applicant’s mental and physical health. 53. On 1 August 2016 the District Court ordered the applicant’s outpatient psychiatric examination and asked the examination panel to answer the following questions: “Whether or not [the applicant] suffers from any kind of mental disorder and whether or not he is able to understand the meaning of his actions and to control them”. 54. On 6 December 2016 the psychiatric expert panel, having examined the applicant, delivered its report as follows: “[the applicant] suffers from a mental disorder, i.e. “intellectual retardation of mixed origin”, which is expressed in grave disturbance of memory and intellect, disturbances of the functions of thought, analysis, cognition, speech, perception and production. The abovementioned [conditions] reached a degree which deprived [the applicant] of the ability to understand the meaning of his actions or to control them. Hence, under the current conditions, it is advised to deprive [the applicant] of his legal capacity”. 55. At the time of exchange of observations between the parties, the proceedings were still pending before the domestic courts. The outcome of those proceedings is unknown. | The applicant in this case had lodged a divorce and eviction claim before the courts against his wife, submitting that their conflictual relationship made co-habitation unbearable. However, the domestic courts never examined his claim as he was declared legally incapable, following proceedings brought by his wife and son, who was living with his family in the same flat. The applicant argued that after he had been declared legally incapable he had no standing before the domestic courts to pursue his divorce and eviction claim or to apply for judicial review of his legal incapacity. He also complained that his being deprived of legal capacity had breached his right to respect for his private life. |
761 | Assisted suicide | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant is a 43-year-old woman. She resides with her husband of twenty-five years, their daughter and granddaughter. The applicant suffers from motor neurone disease (MND). This is a progressive neuro-degenerative disease of motor cells within the central nervous system. The disease is associated with progressive muscle weakness affecting the voluntary muscles of the body. As a result of the progression of the disease, severe weakness of the arms and legs and the muscles involved in the control of breathing are affected. Death usually occurs as a result of weakness of the breathing muscles, in association with weakness of the muscles controlling speaking and swallowing, leading to respiratory failure and pneumonia. No treatment can prevent the progression of the disease. 8. The applicant's condition has deteriorated rapidly since MND was diagnosed in November 1999. The disease is now at an advanced stage. She is essentially paralysed from the neck down, has virtually no decipherable speech and is fed through a tube. Her life expectancy is very poor, measurable only in weeks or months. However, her intellect and capacity to make decisions are unimpaired. The final stages of the disease are exceedingly distressing and undignified. As she is frightened and distressed at the suffering and indignity that she will endure if the disease runs its course, she very strongly wishes to be able to control how and when she dies and thereby be spared that suffering and indignity. 9. Although it is not a crime to commit suicide under English law, the applicant is prevented by her disease from taking such a step without assistance. It is however a crime to assist another to commit suicide (section 2(1) of the Suicide Act 1961). 10. Intending that she might commit suicide with the assistance of her husband, the applicant's solicitor asked the Director of Public Prosecutions (DPP), in a letter dated 27 July 2001 written on her behalf, to give an undertaking not to prosecute the applicant's husband should he assist her to commit suicide in accordance with her wishes. 11. In a letter dated 8 August 2001, the DPP refused to give the undertaking: “Successive Directors – and Attorneys General – have explained that they will not grant immunities that condone, require, or purport to authorise or permit the future commission of any criminal offence, no matter how exceptional the circumstances. ...” 12. On 20 August 2001 the applicant applied for judicial review of the DPP's decision and the following relief: – an order quashing the DPP's decision of 8 August 2001; – a declaration that the decision was unlawful or that the DPP would not be acting unlawfully in giving the undertaking sought; – a mandatory order requiring the DPP to give the undertaking sought; or alternatively – a declaration that section 2 of the Suicide Act 1961 was incompatible with Articles 2, 3, 8, 9 and 14 of the Convention. 13. On 17 October 2001 the Divisional Court refused the application, holding that the DPP did not have the power to give the undertaking not to prosecute and that section 2(1) of the Suicide Act 1961 was not incompatible with the Convention. 14. The applicant appealed to the House of Lords. They dismissed her appeal on 29 November 2001 and upheld the judgment of the Divisional Court. In giving the leading judgment in The Queen on the Application of Mrs Dianne Pretty (Appellant) v. Director of Public Prosecutions (Respondent) and Secretary of State for the Home Department (Interested Party), Lord Bingham of Cornhill held: “1. No one of ordinary sensitivity could be unmoved by the frightening ordeal which faces Mrs Dianne Pretty, the appellant. She suffers from motor neurone disease, a progressive degenerative illness from which she has no hope of recovery. She has only a short time to live and faces the prospect of a humiliating and distressing death. She is mentally alert and would like to be able to take steps to bring her life to a peaceful end at a time of her choosing. But her physical incapacity is now such that she can no longer, without help, take her own life. With the support of her family, she wishes to enlist the help of her husband to that end. He himself is willing to give such help, but only if he can be sure that he will not be prosecuted under section 2(1) of the Suicide Act 1961 for aiding and abetting her suicide. Asked to undertake that he would not under section 2(4) of the Act consent to the prosecution of Mr Pretty under section 2(1) if Mr Pretty were to assist his wife to commit suicide, the Director of Public Prosecutions has refused to give such an undertaking. On Mrs Pretty's application for judicial review of that refusal, the Queen's Bench Divisional Court upheld the Director's decision and refused relief. Mrs Pretty claims that she has a right to her husband's assistance in committing suicide and that section 2 of the 1961 Act, if it prohibits his helping and prevents the Director undertaking not to prosecute if he does, is incompatible with the European Convention on Human Rights. It is on the Convention, brought into force in this country by the Human Rights Act 1998, that Mrs Pretty's claim to relief depends. It is accepted by her counsel on her behalf that under the common law of England she could not have hoped to succeed. 2. In discharging the judicial functions of the House, the appellate committee has the duty of resolving issues of law properly brought before it, as the issues in this case have been. The committee is not a legislative body. Nor is it entitled or fitted to act as a moral or ethical arbiter. It is important to emphasise the nature and limits of the committee's role, since the wider issues raised by this appeal are the subject of profound and fully justified concern to very many people. The questions whether the terminally ill, or others, should be free to seek assistance in taking their own lives, and if so in what circumstances and subject to what safeguards, are of great social, ethical and religious significance and are questions on which widely differing beliefs and views are held, often strongly. Materials laid before the committee (with its leave) express some of those views; many others have been expressed in the news media, professional journals and elsewhere. The task of the committee in this appeal is not to weigh or evaluate or reflect those beliefs and views or give effect to its own but to ascertain and apply the law of the land as it is now understood to be. Article 2 of the Convention 3. Article 2 of the Convention provides: ... The Article is to be read in conjunction with Articles 1 and 2 of the Sixth Protocol, which are among the Convention rights protected by the 1998 Act (see section 1(1)(c)) and which abolished the death penalty in time of peace. 4. On behalf of Mrs Pretty it is submitted that Article 2 protects not life itself but the right to life. The purpose of the Article is to protect individuals from third parties (the State and public authorities). But the Article recognises that it is for the individual to choose whether or not to live and so protects the individual's right to self-determination in relation to issues of life and death. Thus a person may refuse life-saving or life-prolonging medical treatment, and may lawfully choose to commit suicide. The Article acknowledges that right of the individual. While most people want to live, some want to die, and the Article protects both rights. The right to die is not the antithesis of the right to life but the corollary of it, and the State has a positive obligation to protect both. 5. The Secretary of State has advanced a number of unanswerable objections to this argument which were rightly upheld by the Divisional Court. The starting point must be the language of the Article. The thrust of this is to reflect the sanctity which, particularly in western eyes, attaches to life. The Article protects the right to life and prevents the deliberate taking of life save in very narrowly defined circumstances. An Article with that effect cannot be interpreted as conferring a right to die or to enlist the aid of another in bringing about one's own death. In his argument for Mrs Pretty, Mr Havers QC was at pains to limit his argument to assisted suicide, accepting that the right claimed could not extend to cover an intentional consensual killing (usually described in this context as'voluntary euthanasia', but regarded in English law as murder). The right claimed would be sufficient to cover Mrs Pretty's case and counsel's unwillingness to go further is understandable. But there is in logic no justification for drawing a line at this point. If Article 2 does confer a right to self-determination in relation to life and death, and if a person were so gravely disabled as to be unable to perform any act whatever to cause his or her own death, it would necessarily follow in logic that such a person would have a right to be killed at the hands of a third party without giving any help to the third party and the State would be in breach of the Convention if it were to interfere with the exercise of that right. No such right can possibly be derived from an Article having the object already defined. 6. It is true that some of the guaranteed Convention rights have been interpreted as conferring rights not to do that which is the antithesis of what there is an express right to do. Article 11, for example, confers a right not to join an association ( Young, James and Webster v. United Kingdom (1981) 4 EHRR 38), Article 9 embraces a right to freedom from any compulsion to express thoughts or change an opinion or divulge convictions (Clayton and Tomlinson, The Law of Human Rights (2000), p. 974, para. 14.49) and I would for my part be inclined to infer that Article 12 confers a right not to marry (but see Clayton and Tomlinson, ibid., p. 913, para. 13.76). It cannot however be suggested (to take some obvious examples) that Articles 3, 4, 5 and 6 confer an implied right to do or experience the opposite of that which the Articles guarantee. Whatever the benefits which, in the view of many, attach to voluntary euthanasia, suicide, physician-assisted suicide and suicide assisted without the intervention of a physician, these are not benefits which derive protection from an Article framed to protect the sanctity of life. 7. There is no Convention authority to support Mrs Pretty's argument. To the extent that there is any relevant authority it is adverse to her. In Osman v. United Kingdom (1998) 29 EHRR 245 the applicants complained of a failure by the United Kingdom to protect the right to life of the second applicant and his deceased father. At p. 305 the court said: ' 115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties. 116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.' The context of that case was very different. Neither the second applicant nor his father had had any wish to die. But the court's approach to Article 2 was entirely consistent with the interpretation I have put upon it. 8. X v. Germany (1984) 7 EHRR 152 and Keenan v. United Kingdom (App. No. 27229/95; 3 April 2001, unreported) were also decided in a factual context very different from the present. X, while in prison, had gone on hunger strike and had been forcibly fed by the prison authorities. His complaint was of maltreatment contrary to Article 3 of the Convention, considered below. The complaint was rejected and in the course of its reasoning the commission held (at pp. 153-154): ' In the opinion of the Commission forced feeding of a person does involve degrading elements which in certain circumstances may be regarded as prohibited by Art. 3 of the Convention. Under the Convention the High Contracting Parties are, however, also obliged to secure to everyone the right to life as set out in Art. 2. Such an obligation should in certain circumstances call for positive action on the part of the Contracting Parties, in particular an active measure to save lives when the authorities have taken the person in question into their custody. When, as in the present case, a detained person maintains a hunger strike this may inevitably lead to a conflict between an individual's right to physical integrity and the High Contracting Party's obligation under Art. 2 of the Convention – a conflict which is not solved by the Convention itself. The Commission recalls that under German law this conflict has been solved in that it is possible to force-feed a detained person if this person, due to a hunger strike, would be subject to injuries of a permanent character, and the forced feeding is even obligatory if an obvious danger for the individual's life exists. The assessment of the above-mentioned conditions is left for the doctor in charge but an eventual decision to force-feed may only be carried out after judicial permission has been obtained ... The Commission is satisfied that the authorities acted solely in the best interests of the applicant when choosing between either respect for the applicant's will not to accept nourishment of any kind and thereby incur the risk that he might be subject to lasting injuries or even die, or to take action with a view to securing his survival although such action might infringe the applicant's human dignity.' In Keenan a young prisoner had committed suicide and his mother complained of a failure by the prison authorities to protect his life. In the course of its judgment rejecting the complaint under this Article the court said (at p. 29, para. 90): ' In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies ... It may be noted that this need for scrutiny is acknowledged in the domestic law of England and Wales, where inquests are automatically held concerning the deaths of persons in prison and where the domestic courts have imposed a duty of care on prison authorities in respect of those detained in their custody.' Both these cases can be distinguished, since the conduct complained of took place when the victim was in the custody of the State, which accordingly had a special responsibility for the victim's welfare. It may readily be accepted that the obligation of the State to safeguard the life of a potential victim is enhanced when the latter is in the custody of the State. To that extent these two cases are different from the present, since Mrs Pretty is not in the custody of the State. Thus the State's positive obligation to protect the life of Mrs Pretty is weaker than in such cases. It would however be a very large, and in my view quite impermissible, step to proceed from acceptance of that proposition to acceptance of the assertion that the State has a duty to recognise a right for Mrs Pretty to be assisted to take her own life. 9. In the Convention field the authority of domestic decisions is necessarily limited and, as already noted, Mrs Pretty bases her case on the Convention. But it is worthy of note that her argument is inconsistent with two principles deeply embedded in English law. The first is a distinction between the taking of one's own life by one's own act and the taking of life through the intervention or with the help of a third party. The former has been permissible since suicide ceased to be a crime in 1961. The latter has continued to be proscribed. The distinction was very clearly expressed by Hoffmann LJ in Airedale NHS Trust v. Bland [1993] AC 789 at 831: ' No one in this case is suggesting that Anthony Bland should be given a lethal injection. But there is concern about ceasing to supply food as against, for example, ceasing to treat an infection with antibiotics. Is there any real distinction? In order to come to terms with our intuitive feelings about whether there is a distinction, I must start by considering why most of us would be appalled if he was given a lethal injection. It is, I think, connected with our view that the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self-defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is. It follows that, even if we think Anthony Bland would have consented, we would not be entitled to end his life by a lethal injection.' The second distinction is between the cessation of life-saving or life-prolonging treatment on the one hand and the taking of action lacking medical, therapeutic or palliative justification but intended solely to terminate life on the other. This distinction provided the rationale of the decisions in Bland. It was very succinctly expressed in the Court of Appeal in In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33, in which Lord Donaldson of Lymington MR said, at p. 46: ' What doctors and the court have to decide is whether, in the best interests of the child patient, a particular decision as to medical treatment should be taken which as a side effect will render death more or less likely. This is not a matter of semantics. It is fundamental. At the other end of the age spectrum, the use of drugs to reduce pain will often be fully justified, notwithstanding that this will hasten the moment of death. What can never be justified is the use of drugs or surgical procedures with the primary purpose of doing so.' Similar observations were made by Balcombe LJ at p. 51 and Taylor LJ at p. 53. While these distinctions are in no way binding on the European Court of Human Rights there is nothing to suggest that they are inconsistent with the jurisprudence which has grown up around the Convention. It is not enough for Mrs Pretty to show that the United Kingdom would not be acting inconsistently with the Convention if it were to permit assisted suicide; she must go further and establish that the United Kingdom is in breach of the Convention by failing to permit it or would be in breach of the Convention if it did not permit it. Such a contention is in my opinion untenable, as the Divisional Court rightly held. Article 3 of the Convention 10. Article 3 of the Convention provides: ... This is one of the Articles from which a member State may not derogate even in time of war or other public emergency threatening the life of the nation: see Article 15. I shall for convenience use the expression'proscribed treatment'to mean'inhuman or degrading treatment'as that expression is used in the Convention. 11. In brief summary the argument for Mrs Pretty proceeded by these steps. (1) Member States have an absolute and unqualified obligation not to inflict the proscribed treatment and also to take positive action to prevent the subjection of individuals to such treatment: A. v. United Kingdom (1998) 27 EHRR 611; Z v. United Kingdom [2001] 2 FLR 612 at 631, para. 73. (2) Suffering attributable to the progression of a disease may amount to such treatment if the State can prevent or ameliorate such suffering and does not do so: D. v. United Kingdom (1997) 24 EHRR 423, at pp. 446-449, paras. 46-54. (3) In denying Mrs Pretty the opportunity to bring her suffering to an end the United Kingdom (by the Director) will subject her to the proscribed treatment. The State can spare Mrs Pretty the suffering which she will otherwise endure since, if the Director undertakes not to give his consent to prosecution, Mr Pretty will assist his wife to commit suicide and so she will be spared much suffering. (4) Since, as the Divisional Court held, it is open to the United Kingdom under the Convention to refrain from prohibiting assisted suicide, the Director can give the undertaking sought without breaking the United Kingdom's obligations under the Convention. (5) If the Director may not give the undertaking, section 2 of the 1961 Act is incompatible with the Convention. 12. For the Secretary of State it was submitted that in the present case Article 3 of the Convention is not engaged at all but that if any of the rights protected by that Article are engaged they do not include a right to die. In support of the first of these submissions it was argued that there is in the present case no breach of the prohibition in the Article. The negative prohibition in the Article is absolute and unqualified but the positive obligations which flow from it are not absolute: see Osman v. United Kingdom, above; Rees v. United Kingdom (1986) 9 EHRR 56. While States may be obliged to protect the life and health of a person in custody (as in the case of Keenan, above), and to ensure that individuals are not subjected to proscribed treatment at the hands of private individuals other than State agents (as in A. v. United Kingdom, above), and the State may not take direct action in relation to an individual which would inevitably involve the inflicting of proscribed treatment upon him ( D. v. United Kingdom (1997) 24 EHRR 423), none of these obligations can be invoked by Mrs Pretty in the present case. In support of the second submission it was argued that, far from suggesting that the State is under a duty to provide medical care to ease her condition and prolong her life, Mrs Pretty is arguing that the State is under a legal obligation to sanction a lawful means for terminating her life. There is nothing, either in the wording of the Convention or the Strasbourg jurisprudence, to suggest that any such duty exists by virtue of Article 3. The decision how far the State should go in discharge of its positive obligation to protect individuals from proscribed treatment is one for member States, taking account of all relevant interests and considerations; such a decision, while not immune from review, must be accorded respect. The United Kingdom has reviewed these issues in depth and resolved to maintain the present position. 13. Article 3 enshrines one of the fundamental values of democratic societies and its prohibition of the proscribed treatment is absolute: D. v. United Kingdom (1997) 24 EHRR 423 at p. 447, para. 47. Article 3 is, as I think, complementary to Article 2. As Article 2 requires States to respect and safeguard the lives of individuals within their jurisdiction, so Article 3 obliges them to respect the physical and human integrity of such individuals. There is in my opinion nothing in Article 3 which bears on an individual's right to live or to choose not to live. That is not its sphere of application; indeed, as is clear from X v. Germany above, a State may on occasion be justified in inflicting treatment which would otherwise be in breach of Article 3 in order to serve the ends of Article 2. Moreover, the absolute and unqualified prohibition on a member State inflicting the proscribed treatment requires that'treatment'should not be given an unrestricted or extravagant meaning. It cannot, in my opinion, be plausibly suggested that the Director or any other agent of the United Kingdom is inflicting the proscribed treatment on Mrs Pretty, whose suffering derives from her cruel disease. 14. The authority most helpful to Mrs Pretty is D. v. United Kingdom (1997) 24 EHRR 423, which concerned the removal to St Kitts of a man in the later stages of AIDS. The Convention challenge was to implementation of the removal decision having regard to the applicant's medical condition, the absence of facilities to provide adequate treatment, care or support in St Kitts and the disruption of a regime in the United Kingdom which had afforded him sophisticated treatment and medication in a compassionate environment. It was held that implementation of the decision to remove the applicant to St Kitts would amount in the circumstances to inhuman treatment by the United Kingdom in violation of Article 3. In that case the State was proposing to take direct action against the applicant, the inevitable effect of which would be a severe increase in his suffering and a shortening of his life. The proposed deportation could fairly be regarded as'treatment'. An analogy might be found in the present case if a public official had forbidden the provision to Mrs Pretty of pain-killing or palliative drugs. But here the proscribed treatment is said to be the Director's refusal of proleptic immunity from prosecution to Mr Pretty if he commits a crime. By no legitimate process of interpretation can that refusal be held to fall within the negative prohibition of Article 3. 15. If it be assumed that Article 3 is capable of being applied at all to a case such as the present, and also that on the facts there is no arguable breach of the negative prohibition in the Article, the question arises whether the United Kingdom (by the Director) is in breach of its positive obligation to take action to prevent the subjection of individuals to proscribed treatment. In this context, the obligation of the State is not absolute and unqualified. So much appears from the passage quoted in paragraph 7 above from the judgment of the European Court of Human Rights in Osman v. United Kingdom. The same principle was acknowledged by the court in Rees v. United Kingdom (1986) 9 EHRR 56 where it said in para. 37 of its judgment at pp. 63-64: ' 37. As the Court pointed out in its above-mentioned Abdulaziz, Cabales and Balkandali judgment the notion of “respect” is not clear-cut, especially as far as those positive obligations are concerned: having regard to the diversity of the practices followed and the situations obtaining in the Contracting States, the notion's requirements will vary considerably from case to case. These observations are particularly relevant here. Several States have, through legislation or by means of legal interpretation or by administrative practice, given transsexuals the option of changing their personal status to fit their newly-gained identity. They have, however, made this option subject to conditions of varying strictness and retained a number of express reservations (for example, as to previously incurred obligations). In other States, such an option does not – or does not yet – exist. It would therefore be true to say that there is at present little common ground between the Contracting States in this area and that, generally speaking, the law appears to be in a transitional stage. Accordingly, this is an area in which the Contracting Parties enjoy a wide margin of appreciation. In determining whether or not a positive obligation exists, regard must be had to the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention. In striking this balance the aims mentioned in the second paragraph of Article 8 may be of a certain relevance, although this provision refers in terms only to “interferences” with the right protected by the first paragraph – in other words is concerned with the negative obligations flowing therefrom.' That was an Article 8 case, dealing with a very different subject matter from the present, but the court's observations were of more general import. It stands to reason that while States may be absolutely forbidden to inflict the proscribed treatment on individuals within their jurisdictions, the steps appropriate or necessary to discharge a positive obligation will be more judgmental, more prone to variation from State to State, more dependent on the opinions and beliefs of the people and less susceptible to any universal injunction. For reasons more fully given in paragraphs 27 and 28 below, it could not in my view be said that the United Kingdom is under a positive obligation to ensure that a competent, terminally ill, person who wishes but is unable to take his or her own life should be entitled to seek the assistance of another without that other being exposed to the risk of prosecution. Article 8 of the Convention 16. Article 8 of the Convention provides: ... 17. Counsel for Mrs Pretty submitted that this Article conferred a right to self-determination: see X and Y v. Netherlands (1985) 8 EHRR 235; Rodriguez v. Attorney General of Canada [1994] 2 LRC 136; In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147. This right embraces a right to choose when and how to die so that suffering and indignity can be avoided. Section 2(1) of the 1961 Act interferes with this right of self-determination: it is therefore for the United Kingdom to show that the interference meets the Convention tests of legality, necessity, responsiveness to pressing social need and proportionality: see R. v. A. (No. 2) [2001] 2 WLR 1546; Johansen v. Norway (1996) 23 EHRR 33; R. (P) v. Secretary of State for the Home Department [2001] 1 WLR 2002. Where the interference is with an intimate part of an individual's private life, there must be particularly serious reasons to justify the interference: Smith and Grady v. United Kingdom (1999) 29 EHRR 493 at p. 530, para. 89. The court must in this case rule whether it could be other than disproportionate for the Director to refuse to give the undertaking sought and, in the case of the Secretary of State, whether the interference with Mrs Pretty's right to self-determination is proportionate to whatever legitimate aim the prohibition on assisted suicide pursues. Counsel placed particular reliance on certain features of Mrs Pretty's case: her mental competence, the frightening prospect which faces her, her willingness to commit suicide if she were able, the imminence of death, the absence of harm to anyone else, the absence of far-reaching implications if her application were granted. Counsel suggested that the blanket prohibition in section 2(1), applied without taking account of particular cases, is wholly disproportionate, and the materials relied on do not justify it. Reference was made to R. v. United Kingdom (1983) 33 DR 270 and Sanles v. Spain [2001] EHRLR 348. 18. The Secretary of State questioned whether Mrs Pretty's rights under Article 8 were engaged at all, and gave a negative answer. He submitted that the right to private life under Article 8 relates to the manner in which a person conducts his life, not the manner in which he departs from it. Any attempt to base a right to die on Article 8 founders on exactly the same objection as the attempt based on Article 2, namely, that the alleged right would extinguish the very benefit on which it is supposedly based. Article 8 protects the physical, moral and psychological integrity of the individual, including rights over the individual's own body, but there is nothing to suggest that it confers a right to decide when or how to die. The Secretary of State also submitted that, if it were necessary to do so, section 2(1) of the 1961 Act and the current application of it could be fully justified on the merits. He referred to the margin of judgment accorded to member States, the consideration which has been given to these questions in the United Kingdom and the broad consensus among Convention countries. Attention was drawn to Laskey, Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39 in which the criminalisation of consensual acts of injury was held to be justified; it was suggested that the justification for criminalising acts of consensual killing or assisted suicide must be even stronger. 19. The most detailed and erudite discussion known to me of the issues in the present appeal is to be found in the judgments of the Supreme Court of Canada in Rodriguez v. Attorney General of Canada [1994] 2 LRC 136. The appellant in that case suffered from a disease legally indistinguishable from that which afflicts Mrs Pretty; she was similarly disabled; she sought an order which would allow a qualified medical practitioner to set up technological means by which she might, by her own hand but with that assistance from the practitioner, end her life at a time of her choosing. While suicide in Canada was not a crime, section 241(b) of the Criminal Code was in terms effectively identical to section 2(1) of the 1961 Act. The appellant based her claims on the Canadian Charter of Rights and Freedoms which, so far as relevant, included the following sections: ' (1) The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (7) Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. (12) Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. (15) (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.' The trial judge rejected Ms Rodriguez'claim, because (as his judgment was summarised at p. 144): ' It was the illness from which Ms Rodriguez suffers, not the State or the justice system, which has impeded her ability to act on her wishes with respect to the timing and manner of her death.' He found no breach of section 12 and said: ' To interpret section 7 so as to include a constitutionally guaranteed right to take one's own life as an exercise in freedom of choice is inconsistent, in my opinion, with life, liberty and the security of the person.' He also held that section 241 did not discriminate against the physically disabled. 20. The British Columbia Court of Appeal held by a majority (at p. 148) that whilst the operation of section 241 did deprive Ms Rodriguez of her section 7 right to the security of her person, it did not contravene the principles of fundamental justice. McEachern CJ, dissenting, held (at p. 146) that there was a prima facie violation of section 7 when the State imposed prohibitions that had the effect of prolonging the physical and psychological suffering of a person, and that any provision that imposed an indeterminate period of senseless physical and psychological suffering on someone who was shortly to die anyway could not conform with any principle of fundamental justice. 21. In the Supreme Court opinion was again divided. The judgment of the majority was given by Sopinka J, with La Forest, Gonthier, Iacobucci and Major JJ concurring. In the course of his judgment Sopinka J said (at p. 175): ' As a threshold issue, I do not accept the submission that the appellant's problems are due to her physical disabilities caused by her terminal illness, and not by governmental action. There is no doubt that the prohibition in section 241(b) will contribute to the appellant's distress if she is prevented from managing her death in the circumstances which she fears will occur.' He continued (p. 175): ' I find more merit in the argument that security of the person, by its nature, cannot encompass a right to take action that will end one's life as security of the person is intrinsically concerned with the well-being of the living person.' He then continued (at pp. 177-178): ' There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these. The effect of the prohibition in section 241(b) is to prevent the appellant from having assistance to commit suicide when she is no longer able to do so on her own ... In my view, these considerations lead to the conclusion that the prohibition in section 241(b) deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. The appellant's security interest (considered in the context of the life and liberty interest) is therefore engaged, and it is necessary to determine whether there has been any deprivation thereof that is not in accordance with the principles of fundamental justice.' He concluded (at p. 189) that: ' Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it can not be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society.' With reference to section 1 of the Canadian Charter, Sopinka J said (at pp. 192-193): ' As I have sought to demonstrate in my discussion of section 7, this protection is grounded on a substantial consensus among western countries, medical organisations and our own Law Reform Commission that in order to effectively protect life and those who are vulnerable in society, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to fine-tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory of the “slippery slope”. The formulation of safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation of the clear standard set by the law will undermine the protection of life and will lead to abuse of the exception.' He rejected the appellant's claims under sections 12 and 15. 22. Lamer CJ dissented in favour of the appellant, but on grounds of discrimination under section 15 alone. McLachlin J (with whom L'Heureux-Dubé J concurred) found a violation not of section 15 but of section 7. She saw the case as one about the manner in which the State might limit the right of a person to make decisions about her body under section 7 of the charter (p. 194). At p. 195 she said: ' In the present case, Parliament has put into force a legislative scheme which does not bar suicide but criminalises the act of assisting suicide. The effect of this is to deny to some people the choice of ending their lives solely because they are physically unable to do so. This deprives Sue Rodriguez of her security of the person (the right to make decisions concerning her own body, which affect only her own body) in a way that offends the principles of fundamental justice, thereby violating section 7 of the Charter ... It is part of the persona and dignity of the human being that he or she have the autonomy to decide what is best for his or her body.' She held (p. 197) that ' it does not accord with the principles of fundamental justice that Sue Rodriguez be disallowed what is available to others merely because it is possible that other people, at some other time, may suffer, not what she seeks, but an act of killing without true consent.' Cory J also dissented, agreeing with Lamer CJ and also McLachlin J. 23. It is evident that all save one of the judges of the Canadian Supreme Court were willing to recognise section 7 of the Canadian charter as conferring a right to personal autonomy extending even to decisions on life and death. Mrs Pretty understandably places reliance in particular on the judgment of McLachlin J, in which two other members of the court concurred. But a majority of the court regarded that right as outweighed on the facts by the principles of fundamental justice. The judgments were moreover directed to a provision with no close analogy in the European Convention. In the European Convention the right to liberty and security of the person appears only in Article 5 § 1, on which no reliance is or could be placed in the present case. Article 8 contains no reference to personal liberty or security. It is directed to the protection of privacy, including the protection of physical and psychological integrity: X and Y v. Netherlands, above. But Article 8 is expressed in terms directed to protection of personal autonomy while individuals are living their lives, and there is nothing to suggest that the Article has reference to the choice to live no longer. 24. There is no Strasbourg jurisprudence to support the contention of Mrs Pretty. In R. v. United Kingdom (1983) 33 DR 270 the applicant had been convicted and sentenced to imprisonment for aiding and abetting suicide and conspiring to do so. He complained that his conviction and sentence under section 2 of the 1961 Act constituted a violation of his right to respect for his private life under Article 8 and also his right to free expression under Article 10. In paragraph 13 of its decision the commission observed: ' The Commission does not consider that the activity for which the applicant was convicted, namely aiding and abetting suicide, can be described as falling into the sphere of his private life in the manner elaborated above. While it might be thought to touch directly on the private lives of those who sought to commit suicide, it does not follow that the applicant's rights to privacy are involved. On the contrary, the Commission is of the opinion that the acts of aiding, abetting, counselling or procuring suicide are excluded from the concept of privacy by virtue of their trespass on the public interest of protecting life, as reflected in the criminal provisions of the 1961 Act.' This somewhat tentative expression of view is of some assistance to Mrs Pretty, but with reference to the claim under Article 10 the commission continued (in para. 17 of its decision at p. 272): ' The Commission considers that, in the circumstances of the case, there has been an interference with the applicant's right to impart information. However, the Commission must take account of the State's legitimate interest in this area in taking measures to protect, against criminal behaviour, the life of its citizens particularly those who belong to especially vulnerable categories by reason of their age or infirmity. It recognises the right of the State under the Convention to guard against the inevitable criminal abuses that would occur, in the absence of legislation, against the aiding and abetting of suicide. The fact that in the present case the applicant and his associate appear to have been well intentioned does not, in the Commission's view, alter the justification for the general policy.' That conclusion cannot be reconciled with the suggestion that the prohibition of assisted suicide is inconsistent with the Convention. 25. Sanles v. Spain [2001] EHRLR 348 arose from a factual situation similar to the present save that the victim of disabling disease had died and the case never culminated in a decision on the merits. The applicant was the sister-in-law of the deceased and was held not to be a victim and thus not to be directly affected by the alleged violations. It is of some interest that she based her claims on Articles 2, 3, 5, 9 and 14 of the Convention but not, it seems, on Article 8. 26. I would for my part accept the Secretary of State's submission that Mrs Pretty's rights under Article 8 are not engaged at all. If, however, that conclusion is wrong, and the prohibition of assisted suicide in section 2 of the 1961 Act infringes her Convention right under Article 8, it is necessary to consider whether the infringement is shown by the Secretary of State to be justifiable under the terms of Article 8 § 2. In considering that question I would adopt the test advocated by counsel for Mrs Pretty, which is clearly laid down in the authorities cited. 27. Since suicide ceased to be a crime in 1961, the question whether assisted suicide also should be decriminalised has been reviewed on more than one occasion. The Criminal Law Revision Committee in its Fourteenth Report (1980, Cmnd 7844) reported some divergence of opinion among its distinguished legal membership, and recognised a distinction between assisting a person who had formed a settled intention to kill himself and the more heinous case where one person persuaded another to commit suicide, but a majority was of the clear opinion that aiding and abetting suicide should remain an offence (pp. 60-61, para. 135). 28. Following the decision in Airedale NHS Trust v. Bland [1993] AC 789 a much more broadly constituted House of Lords Select Committee on Medical Ethics received extensive evidence and reported. The Committee in its report (HL 21-1, 1994, p. 11, para. 26) drew a distinction between assisted suicide and physician-assisted suicide but its conclusion was unambiguous (p. 54, para. 262): ' As far as assisted suicide is concerned, we see no reason to recommend any change in the law. We identify no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection.' The government in its response (May 1994, Cm 2553) accepted this recommendation: ' We agree with this recommendation. As the Government stated in its evidence to the Committee, the decriminalisation of attempted suicide in 1961 was accompanied by an unequivocal restatement of the prohibition of acts calculated to end the life of another person. The Government can see no basis for permitting assisted suicide. Such a change would be open to abuse and put the lives of the weak and vulnerable at risk.' A similar approach is to be found in the Council of Europe's Recommendation 1418 (1999) on the protection of the human rights and dignity of the terminally ill and the dying. This included the following passage (at pp. 2-4): ' 9. The Assembly therefore recommends that the Committee of Ministers encourage the member States of the Council of Europe to respect and protect the dignity of terminally ill or dying persons in all respects: ... (c) by upholding the prohibition against intentionally taking the life of terminally ill or dying persons, while: (i) recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2 of the European Convention on Human Rights which states that “no one shall be deprived of his life intentionally”; (ii) recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person; (iii) recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.' It would be by no means fatal to the legal validity of section 2(1) of the 1961 Act if the response of the United Kingdom to this problem of assisted suicide were shown to be unique, but it is shown to be in accordance with a very broad international consensus. Assisted suicide and consensual killing are unlawful in all Convention countries except the Netherlands, but even if the Dutch Termination of Life on Request and Assisted Suicide (Review Procedures) Act 2001 and the Dutch Criminal Code were operative in this country it would not relieve Mr Pretty of liability under Article 294 of the Dutch Criminal Code if he were to assist Mrs Pretty to take her own life as he would wish to do. 29. On behalf of Mrs Pretty counsel disclaims any general attack on section 2(1) of the 1961 Act and seeks to restrict his claim to the particular facts of her case: that of a mentally competent adult who knows her own mind, is free from any pressure and has made a fully informed and voluntary decision. Whatever the need, he submits, to afford legal protection to the vulnerable, there is no justification for a blanket refusal to countenance an act of humanity in the case of someone who, like Mrs Pretty, is not vulnerable at all. Beguiling as that submission is, Dr Johnson gave two answers of enduring validity to it. First,'Laws are not made for particular cases but for men in general.'Second,'To permit a law to be modified at discretion is to leave the community without law. It is to withdraw the direction of that public wisdom by which the deficiencies of private understanding are to be supplied'(Boswell, Life of Johnson, Oxford Standard Authors, 3rd ed., 1970, at pp. 735, 496). It is for member States to assess the risk and likely incidence of abuse if the prohibition on assisted suicide were relaxed, as the commission recognised in its decision in R. v. United Kingdom quoted above in paragraph 24. But the risk is one which cannot be lightly discounted. The Criminal Law Revision Committee recognised how fine was the line between counselling and procuring on the one hand and aiding and abetting on the other (report, p. 61, para. 135). The House of Lords Select Committee recognised the undesirability of anything which could appear to encourage suicide (report, p. 49, para. 239): ' We are also concerned that vulnerable people – the elderly, lonely, sick or distressed – would feel pressure, whether real or imagined, to request early death. We accept that, for the most part, requests resulting from such pressure or from remediable depressive illness would be identified as such by doctors and managed appropriately. Nevertheless we believe that the message which society sends to vulnerable and disadvantaged people should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life.' It is not hard to imagine that an elderly person, in the absence of any pressure, might opt for a premature end to life if that were available, not from a desire to die or a willingness to stop living, but from a desire to stop being a burden to others. 30. If section 2(1) infringes any Convention right of Mrs Pretty, and recognising the heavy burden which lies on a member State seeking to justify such an infringement, I conclude that the Secretary of State has shown ample grounds to justify the existing law and the current application of it. That is not to say that no other law or application would be consistent with the Convention; it is simply to say that the present legislative and practical regime do not offend the Convention. Article 9 of the Convention 31. It is unnecessary to recite the terms of Article 9 of the Convention, to which very little argument was addressed. It is an Article which protects freedom of thought, conscience and religion and the manifestation of religion or belief in worship, teaching, practice or observance. One may accept that Mrs Pretty has a sincere belief in the virtue of assisted suicide. She is free to hold and express that belief. But her belief cannot found a requirement that her husband should be absolved from the consequences of conduct which, although it would be consistent with her belief, is proscribed by the criminal law. And if she were able to establish an infringement of her right, the justification shown by the State in relation to Article 8 would still defeat it. Article 14 of the Convention 32. Article 14 of the Convention provides: ... Mrs Pretty claims that section 2(1) of the 1961 Act discriminates against those who, like herself, cannot because of incapacity take their own lives without assistance. She relies on the judgment of the European Court of Human Rights in Thlimmenos v. Greece (2000) 31 EHRR 411 where the court said (at p. 424, para. 44): ' The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.' 33. The European Court of Human Rights has repeatedly held that Article 14 is not autonomous but has effect only in relation to Convention rights. As it was put in Van Raalte v. Netherlands (1997) 24 EHRR 503 at p. 516, para. 33: ' As the Court has consistently held, Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.' See also Botta v. Italy (1998) 26 EHRR 241 at p. 259, para. 39. 34. If, as I have concluded, none of the Articles on which Mrs Pretty relies gives her the right which she has claimed, it follows that Article 14 would not avail her even if she could establish that the operation of section 2(1) is discriminatory. A claim under this Article must fail on this ground. 35. If, contrary to my opinion, Mrs Pretty's rights under one or other of the Articles are engaged, it would be necessary to examine whether section 2(1) of the 1961 Act is discriminatory. She contends that the section is discriminatory because it prevents the disabled, but not the able-bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception. The law confers no right to commit suicide. Suicide was always, as a crime, anomalous, since it was the only crime with which no defendant could ever be charged. The main effect of the criminalisation of suicide was to penalise those who attempted to take their own lives and failed, and secondary parties. Suicide itself (and with it attempted suicide) was decriminalised because recognition of the common law offence was not thought to act as a deterrent, because it cast an unwarranted stigma on innocent members of the suicide's family and because it led to the distasteful result that patients recovering in hospital from a failed suicide attempt were prosecuted, in effect, for their lack of success. But while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so. Had that been its object there would have been no justification for penalising by a potentially very long term of imprisonment one who aided, abetted, counselled or procured the exercise or attempted exercise by another of that right. The policy of the law remained firmly adverse to suicide, as section 2(1) makes clear. 36. The criminal law cannot in any event be criticised as objectionably discriminatory because it applies to all. Although in some instances criminal statutes recognise exceptions based on youth, the broad policy of the criminal law is to apply offence-creating provisions to all and to give weight to personal circumstances either at the stage of considering whether or not to prosecute or, in the event of conviction, when penalty is to be considered. The criminal law does not ordinarily distinguish between willing victims and others: Laskey Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39. Provisions criminalising drunkenness or misuse of drugs or theft do not exempt those addicted to alcohol or drugs, or the poor and hungry.'Mercy killing', as it is often called, is in law killing. If the criminal law sought to proscribe the conduct of those who assisted the suicide of the vulnerable, but exonerated those who assisted the suicide of the non-vulnerable, it could not be administered fairly and in a way which would command respect. 37. For these reasons, which are in all essentials those of the Divisional Court, and in agreement with my noble and learned friends Lord Steyn and Lord Hope of Craighead, I would hold that Mrs Pretty cannot establish any breach of any Convention right. The claim against the Director 38. That conclusion makes it strictly unnecessary to review the main ground on which the Director resisted the claim made against him: that he had no power to grant the undertaking which Mrs Pretty sought. 39. I would for my part question whether, as suggested on his behalf, the Director might not if so advised make a public statement on his prosecuting policy other than in the Code for Crown Prosecutors which he is obliged to issue by section 10 of the Prosecution of Offences Act 1985. Plainly such a step would call for careful consultation and extreme circumspection, and could be taken only under the superintendence of the Attorney General (by virtue of section 3 of the 1985 Act). The Lord Advocate has on occasion made such a statement in Scotland, and I am not persuaded that the Director has no such power. It is, however, unnecessary to explore or resolve that question, since whether or not the Director has the power to make such a statement he has no duty to do so, and in any event what was asked of the Director in this case was not a statement of prosecuting policy but a proleptic grant of immunity from prosecution. That, I am quite satisfied, the Director had no power to give. The power to dispense with and suspend laws and the execution of laws without the consent of Parliament was denied to the crown and its servants by the Bill of Rights 1688. Even if, contrary to my opinion, the Director had power to give the undertaking sought, he would have been very wrong to do so in this case. If he had no reason for doubting, equally he had no means of investigating, the assertions made on behalf of Mrs Pretty. He received no information at all concerning the means proposed for ending Mrs Pretty's life. No medical supervision was proposed. The obvious risk existed that her condition might worsen to the point where she could herself do nothing to bring about her death. It would have been a gross dereliction of the Director's duty and a gross abuse of his power had he ventured to undertake that a crime yet to be committed would not lead to prosecution. The claim against him must fail on this ground alone. 40. I would dismiss this appeal.” 15. The other judges concurred with his conclusions. Lord Hope stated as regarded Article 8 of the Convention: “100. ... Respect for a person's'private life', which is the only part of Article 8 which is in play here, relates to the way a person lives. The way she chooses to pass the closing moments of her life is part of the act of living, and she has a right to ask that this too must be respected. In that respect Mrs Pretty has the right of self-determination. In that sense, her private life is engaged even where in the face of terminal illness she seeks to choose death rather than life. But it is an entirely different thing to imply into these words a positive obligation to give effect to her wish to end her own life by means of an assisted suicide. I think that to do so would be to stretch the meaning of the words too far.” i. recognising that the right to life, especially with regard to a terminally ill or dying person, is guaranteed by the member States, in accordance with Article 2 of the European Convention on Human Rights which states that'no one shall be deprived of his life intentionally'; ii. recognising that a terminally ill or dying person's wish to die never constitutes any legal claim to die at the hand of another person; iii. recognising that a terminally ill or dying person's wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death.” IV. THIRD-PARTY INTERVENTIONS A. Voluntary Euthanasia Society 25. The Voluntary Euthanasia Society, established in 1935 and being a leading research organisation in the United Kingdom on issues related to assisted dying, submitted that as a general proposition individuals should have the opportunity to die with dignity and that an inflexible legal regime that had the effect of forcing an individual, who was suffering unbearably from a terminal illness, to die a painful protracted death with indignity, contrary to his or her express wishes, was in breach of Article 3 of the Convention. They referred to the reasons why persons requested assisted deaths (for example unrelieved and severe pain, weariness of the dying process, loss of autonomy). Palliative care could not meet the needs of all patients and did not address concerns of loss of autonomy and loss of control of bodily functions. 26. They submitted that in comparison with other countries in Europe the regime in England and Wales, which prohibited assisted dying in absolute terms, was the most restrictive and inflexible in Europe. Only Ireland compared. Other countries (for example Belgium, Switzerland, Germany, France, Finland, Sweden and the Netherlands, where assistance must be sought from a medical practitioner) had abolished the specific offence of assisting suicide. In other countries, the penalties for such offences had been downgraded – in no country, save Spain, did the maximum penalty exceed five years'imprisonment – and criminal proceedings were rarely brought. 27. As regarded public-policy issues, they submitted that whatever the legal position, voluntary euthanasia and assisted dying took place. It was well known in England and Wales that patients asked for assistance to die and that members of the medical profession and relatives provided that assistance, notwithstanding that it might be against the criminal law and in the absence of any regulation. As recognised by the Netherlands government, therefore, the criminal law did not prevent voluntary euthanasia or assisted dying. The situation in the Netherlands indicated that in the absence of regulation slightly less than 1% of deaths were due to doctors having ended the life of a patient without the latter explicitly requesting this (non-voluntary euthanasia). Similar studies indicated a figure of 3.1% in Belgium and 3.5% in Australia. It might therefore be the case that less attention was given to the requirements of a careful end-of-life practice in a society with a restrictive legal approach than in one with an open approach that tolerated and regulated euthanasia. The data did not support the assertion that, in institutionalising voluntary euthanasia/physician-assisted suicide, society put the vulnerable at risk. At least with a regulated system, there was the possibility of far greater consultation and a reporting mechanism to prevent abuse, along with other safeguards, such as waiting periods. B. Catholic Bishops'Conference of England and Wales 28. This organisation put forward principles and arguments which it stated were consonant with those expressed by other Catholic bishops'conferences in other member States. 29. They emphasised that it was a fundamental tenet of the Catholic faith that human life was a gift from God received in trust. Actions with the purpose of killing oneself or another, even with consent, reflected a damaging misunderstanding of the human worth. Suicide and euthanasia were therefore outside the range of morally acceptable options in dealing with human suffering and dying. These fundamental truths were also recognised by other faiths and by modern pluralist and secular societies, as shown by Article 1 of the Universal Declaration of Human Rights (December 1948) and the provisions of the European Convention on Human Rights, in particular in Articles 2 and 3 thereof. 30. They pointed out that those who attempted suicide often suffered from depression or other psychiatric illness. The 1994 report of the New York State Task Force on Life and Law concluded on that basis that the legalising of any form of assisted suicide or any form of euthanasia would be a mistake of historic proportions, with catastrophic consequences for the vulnerable and an intolerable corruption of the medical profession. Other research indicated that many people who requested physician-assisted suicide withdrew that request if their depression and pain were treated. In their experience, palliative care could in virtually every case succeed in substantially relieving a patient of physical and psychosomatic suffering. 31. The House of Lords Select Committee on Medical Ethics (1993-94) had solid reasons for concluding, after consideration of the evidence (on a scale vastly exceeding that available in these proceedings), that any legal permission for assistance in suicide would result in massive erosion of the rights of the vulnerable, flowing from the pressure of legal principle and consistency and the psychological and financial conditions of medical practice and health-care provision in general. There was compelling evidence to suggest that once a limited form of euthanasia was permitted under the law it was virtually impossible to confine its practice within the necessary limits to protect the vulnerable (see, for example, the Netherlands government's study of deaths in 1990, recording cases of euthanasia without the patients'explicit request). | This case concerned the authorities’ refusal to give undertaking not to prosecute the applicant’s husband if he assisted her to commit suicide. The applicant was dying of motor neurone disease, a degenerative disease affecting the muscles for which there is no cure. Given that the final stages of the disease are distressing and undignified, she wished to be able to control how and when she died. Because of her disease, she could not commit suicide alone. The applicant argued in particular that, while the right to self-determination ran like a thread through the Convention as a whole, it was Article 8 (right to respect for private and family life) in which that right was most explicitly recognised and guaranteed. She submitted that it was clear that this right encompassed the right to make decisions about one’s body and what happened to it, and that this included the right to choose when and how to die. |
100 | Withdrawal of parental authority, placement of children, and disabled parents’ access rights to their children | I. THE CIRCUMSTANCES OF THE CASE 4. The first applicant was born in 1987. The second applicant, L., the biological son of the first applicant was born on 10 December 2008. 5. By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, on the ground that the first applicant was unemployed and had no income, was supported by her mother, attended a special needs programme in school and lived with her mother and a mentally ill brother in an old and dilapidated house without heating. 6. The first applicant consented to having L. placed in a foster family. A. Proceedings related to divesting the first applicant of her parental rights 7. On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L. 8. The first applicant was unrepresented in those proceedings. 9. On 10 May 2010 the K. Municipal Court divested the first applicant of her parental rights in respect of her son L., on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L. The relevant part of the decision reads: “On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkept, was wearing dirty clothes, had greasy hair and smelled unpleasant as a result of a lack of personal hygiene. When asked by the social worker when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally untidy during the second visit she was told that proceedings for divesting her of parental rights would be instituted. At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy premises and did not maintain her personal hygiene. Upon the birth of her son, L., she had said that she was not capable of caring for him, and L. was placed in a foster family. She had visited him twice in the first year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created an appropriate home environment for the child ... The mother of the child opposed the request and asked that the child be given back to her so that she could try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother. The psychiatrist ... stressed that the respondent is a person with a mild mental disability ... Since childhood she has been behind in her mental development and lived in a sheltered environment. At school she was enrolled in a special needs programme and with some effort completed training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent, who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specifying what. When asked whether she could cook, she answered that she could only prepare milk. When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and is not seeing a psychiatrist. The expert ... stresses that A.K. is intellectually under developed, that is to say, she has a mild mental disability, and has an aggravated form of scoliosis. On the basis of her mental and physical condition the respondent is not capable of caring for her son ... ... This court accepts the opinion of the expert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up, hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary, which indicated a risk that, if entrusted to his mother’s care, the child would not learn to speak or would learn to do so with a delay. It is questionable whether he would be able to start his schooling on time, because he would surely be behind in his development in comparison with other children of the same age; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care, and, above all, in sanitary conditions, none of which he would have with his mother. In her reply the respondent stated that she wished to try to care for her son L., but this court, in order to protect the well being of the child, cannot allow such an experiment. ...” This decision was served on the first applicant on 17 May 2010. 10. After a chance meeting with her former teacher with whom she discussed her family issues, the first applicant applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal aid lawyer was adopted only after the time-limit for lodging the appeal had already expired. B. Proceedings related to restoring the first applicant’s parental rights 11. On 28 October 2010 the first applicant’s legal aid lawyer lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. The first applicant alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed. 12. She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been true. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak. 13. Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L. 14. On 10 December 2010 the first applicant informed the Centre that in a telephone conversation with L.’s guardian, on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L. 15. On 14 December 2010 the Centre replied that L. had been adopted by a final decision of 15 October 2010 and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to adoption proceedings. No further information could be given to her since the data concerning the adoption were confidential. 16. On 28 January 2011 the K. Municipal Court dismissed the first applicant’s request to restore her parental rights on the ground that L. had meanwhile been adopted. | The first applicant is the mother of the second applicant, who was born in 2008. Soon after his birth, the second applicant was placed, with his mother’s consent, in a foster family in another town, on the grounds that his mother had no income and lived in a dilapidated property without heating. The first applicant complained in particular that she had not been represented in subsequent court proceedings which had resulted in a decision divesting her of her parental rights, on the ground that she had a mild mental disability, and that her son had been put up for adoption without her knowledge, consent or participation in the adoption proceedings. |
557 | Other applications of interim measures | I. THE CIRCUMSTANCES OF THE CASE A. The relevant background 1. The applicants’ homes 6. The applicants are residents of Batalova Vodenitsa, a neighbourhood of Sofia. They describe themselves as being of Roma origin. 7. Unlike some other European countries, where the Roma often have an itinerant way of life, in Bulgaria, at least since the 1960s, the great majority of the Roma live a settled life. Typically, Bulgarian towns feature one or more predominantly Roma neighbourhoods in non-central areas. 8. Some of the applicants or their parents and in some cases their grand ‑ parents moved to Batalova Vodenitsa at the end of the 1960s and in the 1970s. Others are more recent arrivals who settled there in the 1990s. 9. In the 1960s land in the neighbourhood in question was expropriated by the State and cleared in the context of the authorities’ housing construction policy. A number of blocks of flats were constructed there, but the plots currently inhabited by the applicants remained vacant, having been earmarked for a green area, which was never landscaped. 10. The applicants’ families built their homes on State land without any authorisation. The area thus gradually developed into a small Roma settlement. It appears that between 200 and 300 persons live there. 11. Most of the buildings are single-storey houses. There is no sewage or plumbing. The inhabitants use water from two public fountains. 12. Most applicants’ registered addresses are at their homes in Batalova Vodenitsa. Many of them are registered at one and the same address although they live in separate buildings which do not figure on any official area plan. Most of the applicants live in their houses with their families, including young children or grandchildren. 13. The applicants never sought to regularise the buildings they had constructed. This was in principle possible through applications for building permits and planning approval. According to the applicants, making such applications was difficult for them as they are poor and live their lives in the Roma community, isolated from the rest of society. 14. It is undisputed by the parties that the applicants’ homes do not meet the basic requirements of the relevant construction and safety regulations and cannot be legalised without substantial reconstruction. 15. In 1987 the local building plan was amended and the construction of dwellings was envisaged on the plots in question. The plan was never implemented. 16. Following a legislative reform, in 1996 the land occupied by the applicants became the property of the Sofia municipality. 17. Until 2005, the State and municipal authorities never took steps to remove the applicants and their families. 18. Under the relevant law the applicants cannot obtain ownership of the land they occupy. Until 1996 the provisions on acquisitive prescription did not apply in respect of State and municipal land. Since 1996, these provisions, under which a ten-year period of possession may suffice for the acquisition of real property, apply to most categories of municipal land. However, in 2006, shortly before the expiry of ten years after the 1996 amendment, Parliament suspended the running of prescription periods in respect of State and municipal land. The suspension has been extended several times and is currently in force until 31 December 2014 (sections 79 and 86 of the Property Act and the transitional provisions thereto). 19. According to a statement by a Mr B. T., a Roma resident of Batalova Vodenitsa, his parents are the lawful owners of their house there and possess a notarial deed. A copy of the notarial deed has not been submitted by the applicants. Neither Mr B.T. nor his parents were among the addressees of the removal order of 17 September 2005 (see paragraph 31 below). 2. Complaints by third persons, public declarations, protests and media coverage 20. From the beginning of the 1990s tension grew in several regions of Sofia between the inhabitants of Roma settlements and their non-Roma neighbours. The issue of Roma settlements, often referred to as “ghettos”, was widely debated in the media. Many commentators urged the emptying of all “Roma ghettos” in Sofia. This line was supported by a number of leading politicians. Occasionally, the views of Roma organisations were also published. 21. Between 2003 and 2006 several demonstrations were held by non-Roma residents of different areas in Sofia seeking the eviction of their Roma neighbours. Other demonstrations were held by non-Roma persons protesting at news of plans by the authorities to resettle in their neighbourhoods Roma families to be removed from other parts of the city. 22. It appears that on an unspecified date non-Roma residents of Batalova Vodenitsa formed an association with the aim to bring pressure to bear on the authorities in relation to the applicants’ unlawful settlement. 23. Most complaints against the Roma inhabitants of Batalova Vodenitsa concerned sanitary risks and repulsive odours caused by the absence of sewage and the fact that the inhabitants kept animals (allegedly including sheep, pigs, hens and horses). Also, many non-Roma residents of the area believed that the Roma inhabitants were responsible for numerous offences, including physical assault, theft and damage to public and private property. The protesters also resented on aesthetic grounds the presence of unsightly shanty houses in the area. 24. The municipal authorities in Sofia perceived as a serious problem the fact that since 1990 many Roma had moved to Sofia and settled in illegal Roma settlements, thus increasing their overpopulation and generating more illegal construction and sanitary problems. B. The decision to remove the applicants and the ensuing judicial proceedings 25. In March 2000 an unspecified number of individuals, apparently persons who had obtained decisions restoring their property rights over expropriated land in the Batalova Vodenitsa area, complained to the Sofia municipal council that “persons of Roma origin” were unlawfully occupying land in the area. Having examined the matter, on 11 December 2000 the municipal council decided to offer the restored owners other municipal land in exchange for their land. It also invited the mayor of Sofia to develop a plan for the resolution of the “problem as a whole”. No such plan appears to have been adopted. 26. In 2003 the local building plan in Batalova Vodenitsa was modified by the municipal authorities, who planned to develop the area. 27. On 2 March 2005 the Sofia municipal council approved in principle the transfer of title to plots of land in Batalova Vodenitsa to Mr K., a private investor. The transfer was effected on 16 May 2006. The plots of land in question were adjacent to the land occupied by the applicants. It is unclear whether Mr K. ever realised any development project. 28. On 29 August 2005 municipal officials visited the Batalova Vodenitsa neighbourhood and issued a document certifying that the applicants and other persons occupied the land. 29. On 8 September 2005, Ms S., the district mayor, invited all or almost all residents – approximately 180 Roma, including the applicants – to leave their homes within seven days as they were occupying municipal land unlawfully. The text referred to section 65 of the Municipal Property Act and contained a list of the names of its addressees and also a warning that failure to comply would result in removal by the police. 30. The applicants filed an appeal. On 15 September 2005 municipal officials issued a document certifying that the residents concerned had not left the area. 31. As a result, on 17 September 2005 the mayor ordered their forcible removal on 27 September 2005. The order listed individually the names of all those concerned. The mayor also stated her intention to secure a decision for the demolition of the applicants’ houses in accordance with the Building Planning Act ( Закон за устройство на територията ). 32. The applicants asked the Sofia City Court to stay their removal pending the examination of their appeal against the removal order. The court granted their request. 33. On 28 September 2005 a committee representing the Roma residents of the area signed an agreement with the municipal authorities in Sofia according to which the municipality would offer alternative housing to the persons registered as Batalova Vodenitsa residents, whereupon they would be removed. No action was taken by the municipality in execution of this agreement. 34. The agreement also provided that the committee of representatives would take measures to improve hygiene in the Roma settlement. They also undertook to organise the removal of unauthorised domestic animals kept by residents and keep better order. According to the Government, the situation did not improve. 35. In the judicial proceedings against the mayor’s order, on 12 January 2006 the Sofia City Court ruled that the removal order was lawful. The applicants appealed. On 12 June 2006, the Supreme Administrative Court upheld the City Court’s judgment. 36. The courts found that the fact that the applicants had not shown a valid legal ground for occupying the land was sufficient to establish that the removal order was lawful. If the applicants considered that they had property rights, it was for them to seek notarial deeds or bring civil proceedings to establish those alleged rights. They had not done so. In these circumstances and having regard to section 92 of the Property Act, their houses were owned by the municipality. 37. The courts also stated that the applicants’ allegations about violations of the Convention and discrimination were groundless. 38. The courts ignored as irrelevant under domestic law the applicants’ argument that they should not be removed because they had lived in the area for decades with the authorities’ acquiescence, and their arguments based on the principle of proportionality. C. Attempt to remove the applicants in 2006 39. On 21 June 2006, the municipal authorities announced their intention to evict the unlawful residents of Batalova Vodenitsa, including the applicants, by 28 June and to demolish their homes. On 22 June 2006 the district mayor was reported in the press as having stated that the removal order had been issued as a result of numerous complaints by neighbours in relation to the unlawful settlement. 40. As a result of political pressure, mainly from members of the European Parliament, the authorities did not proceed with the eviction. 41. In their public declarations the municipal authorities apparently took the stand that the removal of the Batalova Vodenitsa residents was overdue but could not be done immediately because of pressure “from Europe”. Divergent opinions were expressed as to whether the municipality should try to find alternative housing for the residents of Batalova Vodenitsa. In public declarations the mayor of the district stated that this was not possible because the residents concerned had not been registered as persons in need of housing and the municipality could not give them priority over other people who had been on the waiting list for many years. 42. On an unspecified date shortly after 12 June 2006, Ms S., the mayor of the relevant district, participated in a televised debate concerning the fate of the Roma settlement in Batalova Vodenitsa. She stated, inter alia, that the Roma inhabitants there did not have the right to be registered as persons in need of housing because they were occupying municipal land unlawfully. For that reason, she would not offer them the tenancy of municipal dwellings, there being many other families on the waiting list. The district mayor further stated that the agreement of 28 September 2005 between the mayor of Sofia and a committee of representatives of the Roma families “had been concluded in a pre-electoral period” and that she did not consider herself bound by it. She also stated that the removal order had been upheld by the courts and must be enforced; the fact that the persons concerned had nowhere to go was irrelevant. The mayor further stated that she had received complaints by non-Roma inhabitants of the area and was under a duty to act. 43. Most of the applicants have not tried to make arrangements to find new homes for their families. Between 2004 and 2007 three of the applicants registered at addresses in other areas of Sofia. In 2005 one of the applicants declared an address in the town of Sandanski as her official address. According to these four applicants, although for short periods they lived outside Batalova Vodenitsa, in dwellings occupied by relatives, their only real home had remained Batalova Vodenitsa. 44. It appears that after June 2006 negotiations continued between the Roma inhabitants and the municipal authorities regarding possible relocation in temporary municipal housing of those persons in the applicants’ position who had been registered as resident in Batalova Vodenitsa before 1996. Non-governmental organisations defending the rights of the Roma and Government representatives also took part. 45. Information about intentions to resettle the Batalova Vodenitsa unlawful residents have met with strong opposition from inhabitants of neighbourhoods where such relocation was envisaged. It appears that no viable resettlement plan has ever been elaborated. 46. In interviews and statements, local officials supported the non-Roma population. In a radio interview in November 2006, the mayor of Ovcha Kupel district in Sofia stated that “the nuisance that a Roma settlement would create [if Roma families were to move into his district] would surpass by far the inconvenience that a refuse tip would create”. He also stated that “Roma families could not expect to live among the citizens as they did not have the necessary culture”. D. Attempt to remove the applicants in 2008 and developments since then 47. On 27 June 2008 the municipal authorities served a notice on the inhabitants of the area, including the applicants, requiring them to leave their houses by 10 July 2008, failing which they would be evicted forcibly on 11 July 2008. 48. The notice was issued in execution of the removal order of September 2005, which was final and enforceable. 49. On 8 July 2008 the Court indicated to the Government of Bulgaria, under Rule 39 of the Rules of Court, that the applicants should not be evicted from their houses until 23 July 2008, pending receipt by the Court of detailed information about any arrangements made by the authorities to secure housing for the children, elderly, disabled or otherwise vulnerable individuals to be evicted. 50. The Government submitted a copy of a statement by Ms S., the district mayor, who indicated that two local social homes could provide five rooms each and that several elderly persons could be housed in a third home. There was no information about any possibility to house families together. 51. Also, it appears that none of the applicants was willing to be separated from the community and housed in such conditions, not least because it was impossible, according to them, to earn a living outside the community. 52. On 22 July 2008 Ms S., the district mayor, stated that she had suspended the enforcement of the removal order “pending the resolution of the housing problems of the Batalova Vodenitsa residents”. The order was not quashed. 53. In the light of this information, the President of the Court’s Fifth Section decided on 23 July 2008 to lift the interim measure of 8 July 2008, specifying that the decision was taken on the assumption that the Court and the applicants would be given sufficient notice of any change in the authorities’ position for consideration to be given to a further measure under Rule 39 of the Rules of Court. 54. On 23 July 2008 the National Council for Cooperation on Ethnic and Demographic Issues, which includes representatives of non-governmental organisations and is presided over by the Director of the Ethnic and Demographic Matters Directorate at the Council of Ministers, discussed the issue. Representatives of the Sofia municipality were advised to refrain from measures seeking to resolve the problem in Batalova Vodenitsa at the expense of creating tension in other areas. The majority view was that the Roma families living in Batalova Vodenitsa should not be evicted and their homes should not be demolished before a lasting solution was found. 55. According to a letter from the Director of Ethnic and Demographic Matters, sent in January 2009 in connection with the present application, the Sofia municipality was working on a programme for the revitalisation of Roma neighbourhoods. It was envisaged to construct temporary housing on several municipal plots of land. Partial initial financing of the construction work could be provided by the Government but other sources were needed as well. It was envisaged to encourage the Roma applying for housing to take jobs in the construction work under the relevant social employment schemes. The project’s elaboration, including architectural plans, was allegedly under way. The project concerned Roma families who moved to Batalova Vodenitsa before 1996. Those who settled there more recently had “to return to their previous homes”. 56. On 12 January 2010, in reply to a letter from residents protesting against the authorities’ failure to evict their Roma neighbours from Batalova Vodenitsa, Ms S., the district mayor, stated that the enforcement of the 2005 eviction order had been postponed under pressure from members of the European Parliament and that the applicants had started proceedings in the European Court of Human Rights. The letter did not mention plans to secure alternative housing for the persons to be evicted. 57. According to media reports, in May 2010 plans to resettle the inhabitants of Batalova vodenitsa on other State or municipal property were discussed by the municipal authorities. 58. In their latest submissions of December 2010 the parties have not reported any progress in the realisation of such projects. 59. According to the applicants, the resettlement plans mentioned by the authorities are nothing more than empty promises. E. Other relevant facts 60. In March 2006 a ten-year National Programme (2005-2015) for the Improvement of the Housing Conditions of Roma in Bulgaria was adopted by the Council of Ministers in the context of the international initiative entitled Decade of Roma Inclusion 2005–2015. 61. In September 2007, the Sofia municipal council adopted a plan for the implementation of the ten-year national programme in Sofia for the period 2007-2013. The document includes an analysis of the existing situation in respect of housing. 62. According to this analysis, overpopulated Roma settlements had formed over the years in Sofia and nothing had been done by the authorities in the past to address the ensuing problems. Having always been a marginalised group with minimal resources, the Roma cannot in practice acquire real property. Traditionally they occupy vacant land and construct makeshift huts. Although most of them, being persons in need of housing, meet the relevant criteria for tenancy of municipal housing, this option does not work in practice owing to several factors, including the limited number of available municipal dwellings and unwillingness on the part of many Roma families to resettle in municipal flats. Their unwillingness could be explained partly by the lack of the necessary resources to cover the related expenses, such as utility bills, and partly by the animosities which often erupt between non-Roma residents of blocks of flats and Roma families moving in. 63. The ten-year National Programme and the 2007-2013 Sofia plan provide for the following actions, among others: elaborating municipal housing programmes, legalising buildings if they meet the relevant construction standards, constructing sewage and water-supply facilities in Roma neighbourhoods and providing information and assistance to those who apply for municipal housing. 64. The 2010 Monitoring report on the implementation of the Decade of Roma Inclusion 2005–2015 programme does not mention any progress having been made in respect of Roma housing. The concluding text of the report contains a recommendation to the relevant institutions and stakeholders to make timely use of the possibilities under Article 7(2) of Regulation (EC) No. 1080/2006 on the European Regional Development Fund. 65. According to media reports, in several regions in Bulgaria construction works are under way for the building of dwellings intended to house Roma who have been removed or are to be removed from land which they occupy unlawfully. | This case concerned the Bulgarian authorities’ plan to evict Roma from a settlement situated on municipal land in an area of Sofia called Batalova Vodenitsa. |
951 | Refusal to allow internally displaced persons to vote | 2. Details about the applicants are indicated in the appended table. They live in Kyiv. Ms Terekhova, who was granted legal aid, was represented by Ms V. P. Lebid and Mr M. O. Tarakhkalo, lawyers from the Ukrainian Helsinki Human Rights Union, Kyiv. The other three applicants were represented by Mr S.A. Zayets, a lawyer from the Regional Centre for Human Rights, Kyiv, and Mr. J. Evans and Mr K. Levine, lawyers from the European Human Rights Advocacy Centre, London. 3. The Government were represented by their Agent, Mr I. Lishchyna, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicants had lived respectively in Crimea and Donetsk and had had their registered places of residence there. After Crimea came under de facto Russian jurisdiction and the conflict in Eastern Ukraine started (hereinafter - events of 2014), all four applicants moved to Kyiv and registered there as IDPs on various dates in 2014 and 2015 (see the appended table for individual details) and were issued with IDP certificates. All of them maintained that their respective registered places of residence continued to be located in Crimea and Donetsk, as was indicated in their “internal passports” (identity documents for use in Ukraine – hereafter “passports”), while their IDP certificates indicated that the place of their actual residence was in fact Kyiv. 6. They all lodged applications to be included in the lists of voters who would participate in local elections in Kyiv scheduled to take place in October-November 2015, but their applications were dismissed on the grounds that their respective registered places of residence were not in Kyiv but elsewhere. 7. On 25 October 2015 one of the applicants, Ms Terekhova, lodged a complaint with the Central Electoral Commission. She alleged, inter alia, that her right to vote had been violated, given the fact that, because she was an IDP, she had not been allowed to participate in local elections. 8. The Central Electoral Commission replied that under section 3 of the Local Election Act, a person’s place of residence for the purposes of voting in local elections was to be determined according to the registered place of residence, as indicated in the person’s passport. It furthermore noted that elections on the territories that were outside the Government’s control could be conducted only after the regaining of such control and the restoration of constitutional order on those territories; as soon as Parliament decided to conduct elections there, Ms Terekhova would be able to realise her right to vote in local elections. 9. All four applicants lodged administrative claims with their respective local courts in Kyiv seeking to oblige the respective electoral commissions to include them in the voters’ lists for the local elections. On various dates the first-instance courts dismissed the applicants’ claims, and those decisions were upheld on appeal by the Kyiv City Court of Appeal (for all relevant dates and names of the relevant institutions see the appended table). 10. All the applicants in their administrative claims submitted that they had been forced to move to Kyiv from their respective registered places of residence because of the events of 2014. In Kyiv they were registered as IDPs, and on their IDP certificates their places of actual residence were indicated as being located in Kyiv. The applicants noted that they had a right to vote in the upcoming elections as they met all the criteria set forth in Article 70 of the Constitution. They also considered that since they resided in Kyiv (as confirmed by their IDP certificates) they “belonged” to the respective territorial communities there. They pointed to the provisions of the Ensuring the Rights and Freedoms of Internally Displaced Persons Act, which guaranteed them the right to participate in free elections – including local elections (see paragraph 24 below). 11. The first-instance courts, with reference to the domestic legislation described below, reiterated that the right to vote in local elections in Ukraine was conferred on citizens of Ukraine who “belonged” to their respective local communities and who resided within their respective voting constituencies. A person’s residence within his local constituency and “belonging” ( належність ) to his respective community was confirmed by his registered place of residence, as indicated in his passport. The courts noted that everyone enjoyed the right to freedom of movement and of choice of residence but was required by law to register at any new place of residence, with that new information to be recorded in one’s passport. As to IDPs, their temporary place of residence was indicated in their respective IDP certificates, but without that residence having to be registered in their passports. Under the Local Elections Act (see relevant provisions in paragraphs 14 and 15 below), persons who were not in the constituency of their electoral address on the day of elections could not participate in local elections. The applicants had their registered places of residence as being, respectively, in Crimea and Donetsk and had their electoral addresses there. Therefore, they could not participate in local elections in Kyiv. Their administrative claims were accordingly dismissed. 12. The appellate court reiterated the reasoning of the first-instance courts and noted that whether or not a citizen “belonged” to a particular territorial community ( територіальна громада ) and whether his residence was within that community was determined by his registered place of residence. The appellate court furthermore noted that a person’s place of residence, as indicated in his passport, had a key legal meaning for the purposes of deciding disputes regarding whether a person could be included in a list of voters, since a voter’s registered place of residence defined that person’s election address. The court concluded that the applicants did not “belong” to their respective territorial communities in Kyiv as they did not have their registered places of residence there, and that they were therefore not entitled to vote in those communities’ local elections. Decisions of the court of appeal were final and not subject to any further appeal. | This case concerned the alleged discriminatory denial of a vote to the applicants, internally displaced persons who fled the conflict in Donetsk and the Crimea and came to Kyiv in 2014-15, in the Kyiv local elections in 2015. |
939 | Concurrent judicial functions in the same case | I. THE CIRCUMSTANCES OF THE CASE 9. The applicants were crew members on a merchant ship named the Winner, registered in Cambodia. The ship had attracted the attention of the American, Spanish and Greek anti-drug services when the Central Office Against Illegal Drug Trafficking (l’Office Central de Répression du Trafic Illicite des Stupéfiants – “the OCRTIS”), a ministerial body attached to the Central Police Directorate of the French Ministry of the Interior, requested authorisation to intercept it. The OCRTIS suspected the ship of carrying large quantities of drugs, with the intention of transferring them to speedboats off the Canary Islands for subsequent delivery to the coasts of Europe. 10. In a diplomatic note dated 7 June 2002, in response to a request from the French embassy in Phnom Penh, the Cambodian Minister for Foreign Affairs and International Cooperation gave his government’s agreement for the French authorities to take action, in the following terms: “The Ministry of Foreign Affairs and International Cooperation presents its compliments to the French embassy in Phnom Penh and, referring to its note no. 507/2002 dated 7 June 2002, has the honour formally to confirm that the royal government of Cambodia authorises the French authorities to intercept, inspect and take legal action against the ship Winner, flying the Cambodian flag XUDJ3, belonging to ‘Sherlock Marine’ in the Marshall Islands. The Ministry of Foreign Affairs and International Cooperation takes this opportunity to renew its assurance of its high esteem.” 11. In a diplomatic telegram dated the same day, the French embassy in Phnom Penh passed on the information to the Ministry of Defence in Paris. 12. The commander of the French frigate Lieutenant de vaisseau Le Hénaff, which lay at anchor in Brest harbour and had been assigned a mission off the coast of Africa, was instructed by the French naval authorities to locate and intercept the Winner. The frigate left Brest harbour the same day to search for and intercept the Winner, with the French navy commando unit Jaubert, a special forces team specialised in boarding vessels at sea, on board for the duration of the mission. On 10 June 2002, during a technical stopover in Spain, three experts from the OCRTIS also boarded the frigate. 13. On 13 June 2002, at 6 a.m., the French frigate spotted a merchant ship travelling at slow speed through the waters off Cape Verde, several thousand kilometres from France. It was not flying a flag, but was identified as the Winner. The merchant ship suddenly changed course and began to steer a course that was dangerous both for the frigate and for members of the armed forces who had boarded a speedboat. While the Winner refused to answer the attempts of the commander of the frigate to establish radio contact, its crew jettisoned a number of packages into the sea; one of the packages, containing about 100 kilos of cocaine, was recovered by the French seamen. After several warnings and warning shots fired under orders from France’s maritime prefect for the Atlantic went unheeded, the French frigate fired a shot directly at the Winner. The merchant ship then answered by radio and agreed to stop. When they boarded the Winner, the French commando team used their weapons to open certain locked doors. When a crew member of the Winner refused to obey their commands, a “warning shot” was fired at the ground, but the bullet ricocheted and the crew member was wounded. He was immediately evacuated onto the French frigate, then transferred to Dakar hospital, where he died a week later. 14. Under orders from the maritime prefect and at the request of the public prosecutor in Brest, a tug with a military doctor on board was sent from Brest to tow the Winner back to Brest harbour, escorted by the frigate Commandant Bouan. Because of its poor state of repair and the weather conditions, the ship was incapable of speeds faster than 5 knots. 15. The crew of the Winner were confined to their quarters under military guard. The Government submit that when the crew had calmed down they were allowed to move about the ship under the supervision of the French forces. According to the applicants, the coercive measures were maintained throughout the voyage, until they arrived in Brest. 16. On 13 June 2002, at 11 a.m., the Brest public prosecutor referred the case to OCRTIS for examination under the flagrante delicto procedure. It emerged that the Greek coastguard had had the Winner under observation in connection with international drug trafficking involving Greek nationals. 17. On 24 June 2002 the Brest public prosecutor’s office opened an investigation into charges, against persons unknown, of leading a group with the aim of producing, making, importing, exporting, transporting, holding, supplying, selling, acquiring or illegally using drugs and conspiring to import and export drugs illegally. Two investigating judges were appointed. 18. On 26 June 2002, at 8.45 a.m., the Winner entered Brest harbour under escort. The crew were handed over to the police, acting under instructions dated 25 June 2002 from one of the investigating judges, who immediately notified the persons concerned that they were being placed in police custody and informed them of their rights. 19. On the same day, the applicants were presented to an investigating judge at the police station in Brest, to determine whether or not their police custody should be extended. The reports submitted to the Grand Chamber by the Government show that certain applicants met one of the investigating judges (R. André) at 5.05 p.m. (Mr Cabrera Leon), 5.10 p.m. (Mr Sage Martínez), 5.16 p.m. (Mr Balaban), 5.25 p.m. (Mr Manolache), 5.34 p.m. (Mr Petcu) and 5.40 p.m. (Mr Dodica), and the other applicants (Mr Medvedyev, Mr Bilenikin and Mr Boreas) were heard by the second investigating judge (B. Simier) at an unspecified time. The applicants were presented to the same investigating judges again the following day, 27 June 2002 (Mr Sage Martínez at 5.05 p.m., Mr Cabrera Leon at 5.10 p.m., Mr Manolache at 5.20 p.m., Mr Balaban at 5.28 p.m., Mr Dodica at 5.35 p.m. and Mr Petcu at 5.40 p.m.; the times for the other three applicants are not known). 20. On 28 and 29 June 2002 the applicants were charged and remanded in custody pending trial (Mr Petcu, Mr Dodica, Mr Balaban and Mr Manolache on 28 June, and Mr Medvedyev, Mr Bilenikin, Mr Boreas, Mr Cabrera Leon, Mr Sage Martínez and two other crew members – Mr Litetski and Mr Theophanous – on 29 June). 21. The applicants applied to the Investigation Division of the Rennes Court of Appeal to have the evidence disallowed, submitting that the French authorities had acted ultra vires in boarding the Winner, as the ship had been under Cambodian jurisdiction and Cambodia was not party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, and also that they had not been brought “promptly” before a judge, as required under Article 5 § 3 of the Convention, when the Winner was intercepted. 22. In a judgment of 3 October 2002, the court dismissed their appeal and held that there were no grounds for disallowing the evidence. After retracing the details of the operations, including the fact that “on 13 June at 6 a.m. the French frigate spotted a merchant ship – first on its radar, then visually – travelling at slow speed and flying no flag, and identified it as the Winner ”, it pronounced judgment in the following terms: “Considering that the international effort to combat drug trafficking is governed by three conventions: the United Nations Single Convention on Narcotic Drugs of 30 March 1961, the United Nations Convention on the Law of the Sea, signed at Montego Bay on [10] December 1982, and the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988; while France has signed and ratified all three conventions, Cambodia has not signed the Vienna Convention, Article 17 § 3 of which provides for derogations from the traditional principle of the ‘law of the flag State’. Considering that the applicants wrongly suggest in this case that in keeping with the traditional rule codified in Article 92 of the Montego Bay Convention, the authority of a State on ships on the high seas flying its flag is both full and exclusive and that coercion may be used to ensure that the rules of international law and the State’s own law are respected as Article 108 of that Convention, on ‘Illicit traffic in narcotic drugs or psychotropic substances’, stipulates: 1. All States shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions. 2. Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic. Considering that, based on that text and ‘with reference’ to the earlier United Nations Convention of 30 March 1961 against international drug trafficking, the French authorities were within their rights to request Cambodia’s cooperation with a view to obtaining that country’s authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew was suspected of being involved; that as the provisions of the Vienna Convention do not apply to Cambodia, it was for that State to ask the French authorities for all the relevant information concerning the alleged drug trafficking to enable it to assess the merits of the request using its unfettered discretion; that the diplomatic telegram sent by the French embassy on 7 June 2002, which actually mentions the reasoned request submitted by the OCRTIS, suffices to establish the existence of an agreement given without restrictions or reservations by the government of Cambodia for the planned interception and all its consequences, and is authoritative until proven otherwise; that on this point the applicants cannot contend that the document does not meet the formal requirements of Article 17 § 3 of the Vienna Convention concerning bilateral agreements between parties, when they are also arguing that the Vienna Convention is not applicable to Cambodia because it has not signed it; and that the value of the diplomatic document is not affected by the fact that the accused did not know the exact status of the person who signed the message or the person who transmitted the Cambodian government’s agreement to the French embassy. Considering, on the other hand, that in proceeding to intercept the Winner it was the duty of the French authorities to comply with the procedures provided for both in the Vienna Convention signed by France – in particular to ‘take due account of the need not to endanger the safety of life at sea, the security of the vessel and its cargo’ – and in the Law of 15 July 1994, as amended by the Law of 29 April 1996 adapting French law to Article 17 of the Vienna Convention, Articles 12 et seq. of which define the sphere of competence of commanders of naval vessels and the procedures for the search, reporting, prosecution and judgment in the French courts of drug trafficking offences committed at sea. Considering that the reports drawn up by the commander of the Lieutenant de vaisseau Le Hénaff, duly authorised by the maritime prefect for the Atlantic, which are authoritative until proven otherwise, state that when the frigate drew within sight of the Winner, off the Cape Verde islands, the merchant ship was flying no flag and its captain not only failed to answer the requests to identify his ship, in breach of the rules of international law, and to stop his ship, but responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the French frigate and the lives of the sailors on board the speedboat; that it was also reported that the crew of the Winner were seen to be throwing suspicious parcels overboard, one of which was recovered and found to contain a large quantity of cocaine; that all these elements together amounted to reasonable grounds for the commander of the frigate to suspect that he was in the presence of drug traffickers who had jettisoned their cargo before attempting to escape; and that by using force to board the Winner and taking appropriate coercive measures to control the crew and confine them to their cabins and to take over and sail the ship, the commander of the frigate acted in strict compliance with: – the provisions of Article 17 § 4 of the Vienna Convention under which, if evidence of involvement in illicit traffic is found after a ship has been boarded and searched, appropriate action may be taken with respect to the vessel and the persons and cargo on board, – the provisions of the Law of 15 July 1994 as supplemented by the Law of 29 April 1996, which, in its general provisions (Articles 1 to 10) regulates recourse to coercive measures comprising, if necessary, the use of force in the event of refusal by a ship to submit to control and also, in the particular case of the fight against drug trafficking (Articles 12 to 14), makes provision for the implementation of the control and coercion measures provided for under international law. Considering that, regard being had to the distinctly aggressive conduct of the captain of the Winner in attempting to evade inspection by the French naval authorities, and to the attitude of the crew members, who took advantage of the time thus gained to eliminate any traces of the drug trafficking by deliberately throwing the evidence overboard, the members of the commando unit who boarded the ship found themselves in the presence of large-scale international trafficking and were likely at any moment to come up against a hostile and potentially dangerous crew who could threaten the security of their mission; that they were obliged to use their weapons in response to the resistance put up by one of the ship’s crew; that it cannot be claimed that Article 13 of the Law of 15 July 1994 as amended provides only for administrative assistance measures and excludes any form of coercion in respect of people when it stipulates in general terms that the competent maritime authorities are authorised to carry out or have carried out ‘the inspection and coercion measures provided for in international law’, and Article 17 § 4 (c) of the Vienna Convention against Illicit Traffic in Narcotic Drugs [and Psychotropic Substances] expressly mentions taking ‘appropriate action with respect to the persons on board’; that although the nature of these measures is not specified, the text at least provides for the possibility for the competent naval authorities to limit, if necessary, the freedom of the boarded ship’s crew to come and go, otherwise the provision would be meaningless and the safety of the men taking over control of the ship would be seriously jeopardised; that it cannot be ruled out in the course of such operations against international drug traffickers on the high seas that the crew may have weapons hidden away and may seek to regain control of the ship by force; that consequently, confining the members of the crew of the Winner – all but the wounded man, who was transferred to the frigate – to their cabins under the guard of the commando unit, so that the ship could be safely taken over and rerouted, fell within the appropriate measures provided for in Article 17 § 4 (c) of the Vienna Convention. Considering that the Law of 15 July 1994 necessarily requires some departure from ordinary criminal procedure to allow for the specific needs of the effort to combat drug trafficking by ships on the high seas, in keeping with the rules of international law, and for the fact that it is impossible in practice, bearing in mind the time needed to sail to the new port of destination, to apply the ordinary rules governing detention and the right to be brought promptly before a judge; and, that being so, that the restrictions placed on the movements of the boarded ship’s crew, as authorised in such cases by the United Nations Convention signed in Vienna on 20 December 1988, were not at variance with Article 5 § 3 of the European Convention on Human Rights and did not amount to unlawful detention; and that it should be noted that as soon as the Winner docked in Brest, its crew were handed over to the police, immediately informed of their rights and placed in custody, then brought before the investigating judge. Considering also that the French courts have jurisdiction under the Law of 15 July 1994 as amended. ... the grounds of nullity must accordingly be rejected [and] there is no reason to disallow any other documents from the proceedings, which are lawful.” 23. In a judgment of 15 January 2003, the Court of Cassation dismissed an appeal lodged by the applicants in the following terms: “... in so far as Cambodia, the flag State, expressly and without restriction authorised the French authorities to stop the Winner and, in keeping with Article 17 of the Vienna Convention, only appropriate action was taken against the persons on board, who were lawfully taken into police custody as soon as they landed on French soil, the Investigation Division has justified its decision.” 24. On 28 May 2005, the Ille-et-Vilaine Special Assize Court found three applicants – Mr Boreas, Mr Sage Martínez and Mr Cabrera Leon – and one other crew member, S.T., guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to twenty years’, ten years’, three years’ and eighteen years’ imprisonment. However, Mr Boreas and S.T. were acquitted of the charge of leading or organising a gang for the purposes of drug trafficking. The Assize Court acquitted the other six applicants and O.L., another crew member, of the charges against them. 25. In a judgment of 6 July 2007, the Loire-Atlantique Assize Court, examining an appeal lodged by Mr Boreas, Mr Sage Martínez and S.T., upheld the conviction and sentenced them respectively to twenty, twelve and seventeen years’ imprisonment. On 9 April 2008 the Court of Cassation dismissed an appeal on points of law lodged by S.T. and Mr Boreas. 26. In a note of 9 September 2008, in reply to a request submitted by the French embassy in Phnom Penh on 3 September 2008, the Ministry of Foreign Affairs and International Cooperation of Cambodia confirmed that its diplomatic note of 7 June 2002 had “indeed authorised the French authorities to intercept and carry out all necessary operations for the inspection, seizure and legal proceedings against the ship Winner, flying the Cambodian flag, but also against all the members of its crew”. i. a. stop and board the vessel; b. establish effective control of the vessel and over any person thereon; c. take any action provided for in sub-paragraph ii of this Article which is considered necessary to establish whether a relevant offence has been committed and to secure any evidence thereof; d. require the vessel and any persons thereon to be taken into the territory of the intervening State and detain the vessel there for the purpose of carrying out further investigations; ii. and, having established effective control of the vessel: a. search the vessel, anyone on it and anything in it, including its cargo; b. open or require the opening of any containers, and test or take samples of anything on the vessel; c. require any person on the vessel to give information concerning himself or anything on the vessel; d. require the production of documents, books or records relating to the vessel or any persons or objects on it, and make photographs or copies of anything the production of which the competent authorities have the power to require; e. seize, secure and protect any evidence or material discovered on the vessel. 2. Any action taken under paragraph 1 of this Article shall be without prejudice to any right existing under the law of the intervening State of suspected persons not to incriminate themselves. Article 10 – Enforcement measures 1. Where, as a result of action taken under Article 9, the intervening State has evidence that a relevant offence has been committed which would be sufficient under its laws to justify its either arresting the persons concerned or detaining the vessel, or both, it may so proceed. ... Article 11 – Execution of action 1. Actions taken under Articles 9 and 10 shall be governed by the law of the intervening State ...” E. Agreement Concerning Cooperation in Suppressing Illicit Maritime and Air Trafficking in Narcotic Drugs and Psychotropic Substances in the Caribbean Area, signed at San José on 10 April 2003 31. This agreement between continental and island States of the Caribbean area (Costa Rica, the Dominican Republic, France, Guatemala, Haiti, Honduras, the Netherlands, Nicaragua and the United States of America) in respect of the Vienna Convention, lays down the conditions of the battle against trafficking in narcotic drugs in the area by introducing broad cooperation and providing for States to be able to consent in advance to intervention by the other States Parties on ships flying their flags. 32. It allows a State Party to take coercive action, even in the territorial waters of another State Party, by delegation of the latter State. There are three possibilities: – systematic authorisation; – authorisation if no answer is received from the flag State within four hours of another Party submitting a request for intervention; – express authorisation for the intervention, which corresponds to the current legal situation under the Vienna Convention. 33. The draft law thus allows the States to consent in advance to the intervention of other Parties on a ship flying their flag or located within their territorial waters. F. Domestic legislation Law no. 94-589 of 15 July 1994 on conditions governing the exercise by the State of its powers to carry out checks at sea 34. The relevant provisions of Law no. 94-589 of 15 July 1994 on conditions governing the exercise by the State of its powers to carry out checks at sea, as amended by Law no. 96-359 of 29 April 1996 on drug trafficking at sea and adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances signed in Vienna on 20 December 1988, read as follows (version applicable at the material time): “Part II: Special provisions adapting French legislation to Article 17 of the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, signed in Vienna on 20 December 1988. Section 12 The investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor shall be governed by the provisions of Part I of the present Law and by the following provisions. These provisions shall apply not only to ships flying the French flag, but also: – to ships flying the flag of a State Party to the Vienna Convention of 20 December 1988 other than France, or lawfully registered in such a State, at the request or with the agreement of the flag State; – to ships displaying no flag or having no nationality. Section 13 Where there exist reasonable grounds to suspect that one of the vessels referred to in section 12 and sailing outside territorial waters is engaged in illicit drug trafficking, commanders of State vessels and of aircraft responsible for surveillance at sea shall have the power – under the authority of the maritime prefect, who shall inform the public prosecutor’s office – to carry out, or have carried out the inspection and coercion measures provided for under international law and under this Law.” 35. In the version amended by Law no. 2005-371 of 22 April 2005, which was not applicable at the material time, section 12 also refers to ships flying the flag of a State which is not party to the Vienna Convention: Section 12 “The investigation and establishment of drug trafficking offences committed at sea, and prosecution and trial therefor shall be governed by the provisions of Part II of Book V of the first part of the Defence Code and by the provisions of the present Part of this Law. These provisions shall apply not only to the ships mentioned in Article L. 1521-1 of the Defence Code, but also: – to ships flying the flag of a State which has requested intervention by France or agreed to its request for intervention; – to ships displaying no flag or having no nationality.” 36. In order to allow for the period of transit subsequent to a decision to reroute a vessel, Law no. 2005-371 of 22 April 2005 amended Article L. 1521-5 of the Defence Code, in the chapter on “Exercise of the State’s law enforcement powers at sea”, by adding the following final sentence: Article L. 1521-5 “During transit subsequent to rerouting, the officers mentioned in Article L. 1521-2 may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board.” 37. In its report on the draft of this Law, the Foreign Affairs Committee stated (extract from Report no. 280 (2004-05), dated 6 April 2005): “B. THE DRAFT LAW 1. Secure the procedures (a) Delete the reference to the Vienna Convention on drug trafficking In the case involving the Winner, a ship flying the Cambodian flag that was stopped by the French navy off the coast of West Africa, the Court of Cassation did not deem it necessary to rely on the Vienna Convention, to which Cambodia was not party, to find that the stopping of the ship with the consent of the flag State in the particular case of drug trafficking had been lawful. It found it sufficient to rely on Article 108 of the Montego Bay Convention, which provides: ‘Any State which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other States to suppress such traffic.’ On the other hand, when carrying out the interception, a State Party to the Vienna Convention which stops such a ship – in this case, France – must comply with the rules laid down therein and may thus rely on the provisions of Article 17 of the Vienna Convention, concerning coercion measures. In this case the Court found that the jurisdiction of the flag State was not exclusive when it assented to a request to intervene. It appears preferable, however, to delete the reference to the Vienna Convention, in so far as inspection and coercion measures may be carried out on the strength of other international instruments, including the regional cooperation agreements concluded on the basis of the Vienna Convention, such as the San José Agreement of 10 April 2003 when it enters into force. (b) State exactly what the coercion measures involve The draft law also says that during transit subsequent to rerouting, the duly authorised officers of the State may take the necessary and appropriate coercion measures to ensure the safety of the ship and its cargo and of the persons on board.” | The applicants in this case, who were crew-members of a cargo vessel registered in Cambodia, had been arrested on the high seas after the interception of their ship by the French authorities on suspicion of drug trafficking, before being presented to an investigating judge when their ship reached France. They complained that they had been deprived of their liberty unlawfully and that it had taken too long to bring them before a judge or other officer authorised by law to exercise judicial power. |
571 | Cases in which the Court found a violation of Article 4 of Protocol No. 4 to the Convention | 2. The applicant was born in 1986 and lives in Gujrat, Pakistan. He was represented by Ms B. Pohárnok, a lawyer practising in Budapest. 3. The Government were represented by their Agent at the Ministry of Justice, Mr Z. Tallódi. 4. The facts of the case, as submitted by the parties, may be summarised as follows. circumstances prior to THE events complained of 5. According to the applicant, he left Pakistan in 2008 or 2009 because he had been repeatedly ill-treated by members of the Pakistani military forces. He subsequently stayed in Greece until 2011, when he tried to enter other European countries but was allegedly pushed back from Serbia and returned to Greece. 6. Again travelling through North Macedonia, the applicant arrived in Serbia for a second time in April 2016. He claimed to have attempted to apply for asylum in Krnjača camp and Subotica, but was refused both times without having his asylum claims examined. Subsequently, the applicant attempted to enter Hungary through one of the Hungarian transit zones, and asked the person (an Afghan man) managing the waiting list at the time to put his name on the list. He allegedly refused to do so, telling the applicant that single men could not be added. The applicant stayed in Serbia, in the Subotica area. He was occasionally allowed to stay inside the camp, but for the most part stayed on his own without adequate accommodation and food. 7. During this period, the applicant tried to enter Hungary irregularly but was apprehended by the Hungarian police and immediately sent back to the external side of the border fence. apprehension of the applicant and his return to Serbia on 12 August 2016 8. On the evening of 11 August 2016 the applicant again crossed the Serbian-Hungarian border irregularly, by cutting a hole in the border fence with eleven other Pakistani men. They had walked approximately eight hours before resting in a cornfield between Katymár and Madaras in Bács ‑ Kiskun County. At around 11 a.m. on 12 August 2016 they were intercepted by Hungarian police officers. The group of men were eventually encircled by the officers and asked to hand over their belongings, which were inspected and then returned. The applicant told the officers that he wanted asylum, but one of them replied: “asylum is closed”. Subsequently, two investigating officers arrived, as well as someone who could speak Urdu and Hungarian. The applicant again asked for asylum but was told that he “[could] not ask for asylum”. One of the two investigating officers questioned the group in order to determine whether they were smugglers. The two investigating officers and the person who spoke Urdu then left the scene. The group remained with the other officers, who were later identified (see paragraph 15 below) as police and border control officers from Bácsbokod and two Slovak officers in green uniform conducting border control in the framework of cooperation between the Visegrad Group countries (namely Czechia, Hungary, Poland and Slovakia, also known as the “Visegrad Four” or “V4”). 9. The apprehended men were driven about twenty minutes to the border fence. Video footage, which was provided to the applicant’s representative in the course of the criminal investigation (see paragraph 15 below), shows the applicant and the eleven other men standing in front of a green van and the applicant reading a document. They are surrounded by officers in blue as well as dark green and military clothing. After the applicant finishes reading, one of the police officers takes the document and someone is heard saying “understand” and a few seconds later “go”. The applicant and the eleven other men then go through a gate in the fence. According to information provided in the subsequent criminal investigation (see paragraph 15 below), this happened at 3.25 p.m. On the other (external) side of the border fence, several officers in blue uniforms can be seen surrounding the group and giving orders. According to the criminal case file (see paragraph 15 below), these officers were from the Baranya County police (in particular Siklós police station). One of the officers can be heard ordering the men to sit down after crossing the fence. The video recording stops when the last man passes the border gate and sits down as ordered by the police. According to the applicant, the Hungarian police officers subsequently beat up him and the other men in the group and then ordered them to go to Serbia. 10. It would appear from the information gathered during the criminal investigation (see paragraph 15 below) that there were at least eleven officers present on the internal and external side of the border fence when the measure in question was being carried out. 11. After their removal, the applicant and other men in the group walked about 10 to 15 km to the Serbian village of Bajmok, then took a bus and taxi to the reception centre for migrants in Subotica. From there the applicant was taken by ambulance to a nearby hospital. Later that evening, at 11.30 p.m., he gave a statement to Serbian police at Subotica police station, describing his border crossing and subsequent apprehension, alleged beatings and return to Serbia. 12. According to information obtained from the National Police Headquarters (NPH) by the applicant’s representative, there were three cases of “apprehension and escort” in Bács-Kiskun County on 12 August 2016, affecting thirty-seven individuals. Among these were twelve Pakistani nationals who were apprehended at 11.10 a.m. near Katymár and escorted to the external side of the border fence by Hungarian police officers. Images and sound recordings were taken in all cases. 13. In official reports and correspondence concerning the applicant’s criminal complaint (see paragraph 15 below), the police officers involved stated that the group, upon exiting the Hungarian border gate, had been directed towards the Hungarian transit zones. However, the statements given during the investigation by the officers who were standing on the external side of the border fence and giving the orders indicate that the group were directed towards Serbian territory. They explained that it had been for security reasons that they had ordered the migrants to sit down and then pointed them away from the fence. According to one of the police officers, migrants were only allowed to leave the area at the same time and in a group. Two officers testified that their superior had ordered them to make sure that all removed migrants left in one direction – into Serbia, preventing them from spreading along the border fence in two directions and potentially attempting to cross the border fence again. Access to the transit zones 14. During the police procedure in question, the applicant was made to cross the border fence near Katymár. The distance from this location to Tompa transit zone is approximately 40 km. The remaining transit zone, the Röszke transit zone, is 84 km away. According to the applicant, at the time of his removal, Hungary set daily admission limits – fifteen people per transit zone. Furthermore, those wishing to enter had to register on a waiting list managed by one of the migrants (“the list manager”), who was selected by other waiting migrants with the assistance of the Serbian asylum office. The list manager submitted the waiting list to officials at the Hungarian Immigration and Asylum Office (IAO), who returned the updated list daily, with instructions as to who should be allowed to enter the transit zone that day. The list manager communicated this information to the waiting migrants and/or the Serbian asylum office. The selection of those who could enter one of the transit zones was based solely on this waiting list, and there were no other means of having physical access to the transit zones or officials of the IAO. subsequent events 15. The applicant’s representative lodged a criminal complaint in relation to the alleged ill-treatment of the applicant. A criminal investigation was opened on 24 October 2016 by the Szeged Regional Investigative Prosecutor’s Office. The evidence gathered confirms that the “apprehension and escort” of the applicant and other men in the group took place on 12 August 2016. In the course of the investigation, fifteen police officers involved in the event gave statements, including the two Slovak officers. On 9 February 2018 a decision to terminate the investigation was upheld by the Department of Terrorism, Money Laundering and Military Affairs of the Prosecutor General’s Office. During the investigation, neither the applicant’s identity nor the existence of his injuries was disputed by the investigative authorities. However, in the authorities’ view, it could not be established beyond all doubt that the injuries had been inflicted by the Hungarian police. 16. Following these events, the applicant stayed in Serbia for another three months. He allegedly tried, without success, to have his asylum claim registered in Serbia and to gain access to the Hungarian transit zones. In his submissions to the Court, he corrected his initial statement that he had been subjected to chain refoulement to North Macedonia, explaining that he had in fact gone back to Pakistan voluntarily in late 2016. | This case concerned the entry from Serbia to Hungary, as part of a group, of the applicant, a Pakistani national, and his subsequent summary expulsion by the police. The applicant submitted that his expulsion from Hungary had been part of a collective expulsion, and that he had no remedy for his complaint. |
1,046 | Domestic workers | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1979. 5. The applicant travelled to the United Kingdom from Uganda on 2 September 2002. She claimed that she had been raped several times in Uganda and that her purpose in travelling to the United Kingdom was to escape from the sexual and physical violence which she had experienced. She intended to work to support herself in the United Kingdom and to pursue further education. 6. According to the applicant’s account, a relative named S. and a Mr A. helped her obtain a false passport and a visa to enable her to enter the United Kingdom. However, the applicant claimed that on arrival in the United Kingdom S. took her passport and travel documents and did not return them to her. 7. The applicant lived for a number of months at various houses belonging to S. in London. She claimed that during this time he constantly warned her that she should not talk to people and that she could easily be arrested or otherwise come to harm in London. She was also shown violence on television and told that this could happen to her if she was not careful. 8. In January 2003 S. introduced the applicant to a man called M. who ran a business providing carers and security personnel for profit. The applicant attended a short carers’ training course and thereafter did some overnight shifts as a carer and as a security guard in a number of locations. The applicant asserted that on each occasion payment was made by the client to M., who transferred a share of the money to S.’s bank account in the apparent belief that he would pass it on to her. However, she claimed that she did not receive any payment for the work that she did. 9. In early 2003 the applicant began to work as a live-in carer for an elderly Iraqi couple (“Mr and Mrs K”). She found the role physically and emotionally demanding as Mr K. suffered from Parkinson’s disease and she was required to change his clothing, feed him, clean him and lift him as necessary. As a result, she was permanently on-call during the day and night. On one Sunday every month she was given a couple of hours leave but on these occasions she would usually be collected by M. and driven to S.’s house for the afternoon. She accepted that after a couple of years she was permitted to take public transport but said she was warned that it was not safe and that she should not speak with anyone. 10. The applicant claimed that the GBP 1,600 Mr and Mrs K. paid every month for her services was sent directly to M. by cheque. A percentage of that money was passed by M. to S. on the apparent understanding that it would be paid to her. However, she received no significant payment for her labour. Occasionally Mr and Mrs K would give the applicant presents or second-hand clothes and from time to time S. would give her GBP 20 or GBP 40 when she went to his home on her monthly afternoon of leave. It was sometimes suggested that S. was saving up her income for her education, but she denied that any money was ever given to her. 11. In August 2006 Mr and Mrs K. went on a family trip to Egypt. The applicant was unable to accompany them because she did not have a passport. In their absence, the applicant was taken to a house belonging to S. When he left for a business trip to Uganda, she remained in the house with his partner, H. The applicant asserted that H. effectively prevented her from leaving the house and warned her not to speak with anyone. 12. On 18 August 2006 the applicant left the house. She went to a local bank, where she asked someone to call the police. Before the police arrived, she collapsed and was taken to St Mary’s Hospital, where she was diagnosed as HIV positive. She was also suffering from psychosis, including auditory hallucinations. 13. The applicant remained in hospital for one month. H. visited the applicant in hospital and the applicant claimed that during these visits she tried to persuade her to return to S.’s house. In particular, she warned her that when she left the hospital she would have to pay for anti-retroviral medication and if she did not return to the house she would be “on the streets”. 14. Following her discharge from hospital, the applicant was housed by the local authority. On 21 September 2006 she made an application for asylum. The application was refused on 16 January 2007. The Secretary of State for the Home Department considered that the applicant could access protection in Uganda to prevent further sexually motivated attacks. Moreover, he found that if she had been genuinely afraid of S., she would have tried to escape from him earlier. The applicant appealed. Her appeal was dismissed on 20 November 2007. In dismissing the appeal, the Immigration Judge expressed serious concerns about the applicant’s credibility and found much of her account to be implausible. 15. In April 2007 the applicant’s solicitor wrote to the police and asked that they investigate her case. The Metropolitan Police Human Trafficking Team, a police unit specialising in the investigation of human trafficking offences, commenced an investigation to ascertain whether or not she had been the victim of a criminal offence. The police interviewed the applicant on 21 June 2007. During the investigation, the Human Trafficking Team sought the views of the United Kingdom Human Trafficking Centre in Sheffield, a multi-agency organisation which provided a central point of expertise in the field of human trafficking. However, the Centre advised that there was no evidence to substantiate the allegation that the applicant had been trafficked into the United Kingdom and observed that during her time working with Mr and Mrs K she had been well looked after. 16. On 26 September 2007 the police informed the applicant’s former solicitor that there was “no evidence of trafficking for domestic servitude in the interview”. 17. On 26 August 2008 the applicant’s current solicitor wrote to the police asking for the reasons for discontinuing the investigation. On 5 September 2008 the police noted that the Head of Legal Services at the United Kingdom Human Trafficking Centre had advised that there was no evidence to substantiate the applicant’s allegation that she had been trafficked into the United Kingdom. He further advised that while the applicant worked with the K family she was well looked after and given some money. There was, however, a dispute over money and it may have been that “her cousin kept more than he should have done”. 18. On 5 September 2008 the police informed the applicant’s solicitor that “a decision was taken not to proceed with the matter as there was no evidence that she [the applicant] had been trafficked”. On 18 September 2008 the police reiterated that following the interview “it was decided that there was insufficient evidence to substantiate the allegation of trafficking and thus further investigation was not warranted”. 19. On 5 December 2008 the applicant’s solicitor wrote to the police to ask them to consider prosecutions for other offences, including a jus cogens offence of slavery or forced labour. 20. On 18 December 2008 the applicant was assessed by the POPPY Project, a Government funded project providing housing and support for victims of trafficking. The POPPY Project concluded that she had been “subjected to five of the six indicators of forced labour” (as identified by the ILO). In particular, her movement had been restricted to the workplace, her wages were withheld to pay a debt she did not know about, her salary was withheld for four years, her passport was retained, and she was subjected to threats of denunciation to the authorities. 21. On 5 January 2009 the police began to conduct further investigations. On 14 January 2009 the police noted that a statement had been obtained from the agent who arranged the applicant’s work with Mr and Mrs K (presumably the man previously identified as M.). He stated that he had been introduced to the applicant by a person he believed to be her relative. He was supplied with a passport, a national insurance number and a criminal records check. The agent stated that the applicant came to the agreement with her relative that her wages would be paid to him. She only complained about this arrangement in or around June 2006. The agent also stated that he feared the applicant’s relative, who was a wealthy and powerful man well-connected to the Ugandan government. 22. The police were unable to make contact with Mr and Mrs K. Eventually they made contact with a member of the K family. However, no statement appears to have been taken as the (unidentified) woman told the police that she was leaving the country for medical treatment. 23. On 25 February 2009 the police informed the applicant’s solicitor that the evidence did not establish an offence of trafficking. They noted that “at this stage there is no evidence that would support exploitation of any kind”. 24. Police officers met with the applicant and her representative on 11 March 2009. The applicant’s solicitor asserted that at this meeting a police officer indicated that it was the Metropolitan Police’s provisional view, given expressly without formal authority, that there was no offence in English criminal law which applied to the facts of the case. The solicitor further asserted that the police apologised for the cursory manner in which the case had been dealt with previously and confirmed that the applicant’s account was credible. 25. In an entry dated 27 March 2009 the police noted that: “It is clear that this female was not trafficked into the UK for labour exploitation. She having applied for a visa in her real name to come to the UK was refused. She then in agreement with her father then obtained a false passport with a forged visa stamp. These false documents were paid for by her father with the assistance of her uncle... She willingly commenced work that was arranged by her uncle as a live-in carer for an elderly couple. The family at first wanted to pay her wages direct. But on the request of the victim she stated the money should be paid to the agency and then the money should then be transferred to her uncle’s account who in turn would send the money back to Uganda. This agreement was made in order to hide from the authorities the fact that the victim did not have a national insurance number. If money was paid to her then she would have had to pay tax and her false identity would have come to the notice of the tax office and then to the [United Kingdom Border Agency]. This would then lead to her arrest and eviction from the UK... ...There is no evidence to show that this female is/was a victim of slavery or forced labour. She willingly worked and was in fact paid but she choose that the money should go via her uncle in order to conceal being in the UK. It is basically a situation that one criminal (her uncle) has taken all the proceeds of their crime...” 26. At that meeting the applicant’s solicitor pointed out that S. had taken the applicant’s identity documents from her upon her arrival in the United Kingdom and that this was grounds to prove possible forced labour. However, the police indicated that the documents taken from the applicant were false documents purchased by her and her father to enable her to enter the United Kingdom. 27. On 31 March 2009 the police spoke again with the applicant’s solicitor. While they accepted that not every enquiry had been carried out, such as production orders relating to relevant bank accounts, it was important to ensure that the limited resources of the Human Trafficking Team were used to best effect and they could not, therefore, carry out any further investigation into the applicant’s complaints. 28. The applicant was assessed by a clinical psychologist specialising in violence against women. The psychologist concluded in her 16 May 2009 report that the applicant was “suffering to a severe degree from a complex form of chronic Post-Traumatic Stress Disorder (PTSD), in conjunction with a Major Depressive Disorder and she presents a moderate risk of suicide.” In particular, she noted that the applicant presented “in ways consistent with a victim of trafficking and forced labour, in the context of a history of sexual assaults”. 29. On 11 August 2009 the police noted that they would write to the applicant’s solicitor to confirm that “this particular case does not fulfil the requirements of human trafficking as per UK legislation and that legislation does not exist in relation to sole and specific allegations of domestic servitude where trafficking is not a factor”. 30. On 12 August 2009 the police wrote to the applicant’s solicitor in the following terms: “I can confirm that after undertaking an investigation of the case including interviewing Ms N. a decision has been made to conclude the investigation. This decision is based on several factors, one being that after consultation with the legal representative of the Human Trafficking Centre the circumstances of Ms N.’s case did not appear to constitute an offence of trafficking people for the purposes of exploitation contrary to the Asylum and Immigration Act 2004. I am not aware of any specific offence of forced labour or servitude beyond that covered by section 4 of the Asylum and Immigration Act 2004 though regulation of working conditions are controlled by such areas as health and safety legislation and in certain instances the Gangmasters Act 2004...” 31. Section 71 of the Coroners and Justice Act 2009, which received Royal Assent on 12 November 2009, made slavery, servitude and forced or compulsory labour criminal offences punishable by a fine and/or up to fourteen years’ imprisonment. Section 71 came into force on 6 April 2010 but did not have retrospective effect. i. make slavery and trafficking in human beings, and also forced marriage, offences in their criminal codes; ... ... ... vi. protect the rights of victims of domestic slavery by: a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds; b. taking steps to provide them with protection and with social, administrative and legal assistance; c. taking steps for their rehabilitation and their reintegration, including the creation of centres to assist, among others, victims of domestic slavery; d. developing specific programmes for their protection; e. increasing victims’ time limits for bringing proceedings for offences of slavery; f. establishing compensation funds for the victims of slavery.” 41. Recommendation 1663 (2004) further provides, as relevant, that: “The Assembly thus recommends that the Committee of Ministers: i. in general: a. bring the negotiations on the Council of Europe draft convention on action against trafficking in human beings to a rapid conclusion; b. encourage member states to combat domestic slavery in all its forms as a matter of urgency, ensuring that holding a person in any form of slavery is a criminal offence in all member states; c. ensure that the relevant authorities in the member states thoroughly, promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible; d. recommend that member states review their immigration and deportation policies, granting victims of domestic slavery at least temporary residence permits (if possible, in conjunction with work permits) and allowing them to file complaints against their abusive husbands or employers if they wish to do so; e. urge member states to provide an efficient support network for victims (including emergency accommodation, health care, psychological and legal counselling services) and attribute funds to non-governmental organisations working in this area; f. ensure that victims of slavery are provided with reparation, including compensation, restitution, rehabilitation, satisfaction and guarantees of non-repetition; ii. as concerns domestic servitude: a. elaborate a charter of rights for domestic workers, as already recommended in Recommendation 1523 (2001) on domestic slavery. Such a charter, which could take the form of a Committee of Ministers’ recommendation or even of a convention, should guarantee at least the following rights to domestic workers: – the recognition of domestic work in private households as “real work”, that is, to which full employment rights and social protection apply, including the minimum wage (where it exists), sickness and maternity pay as well as pension rights; – the right to a legally enforceable contract of employment setting out minimum wages, maximum hours and responsibilities; – the right to health insurance; – the right to family life, including health, education and social rights for the children of domestic workers; – the right to leisure and personal time; – the right for migrant domestic workers to an immigration status independent of any employer, the right to change employer and to travel within the host country and between all countries of the European Union and the right to the recognition of qualifications, training and experience obtained in the home country; b. recommend the introduction of a system of accreditation for agencies placing domestic workers, which would commit these agencies to certain minimum standards, such as charging reasonable fees, tracking the employees they have placed and providing emergency help in cases of difficulty. Accredited agencies could have visa applications put forward on their behalf validated automatically; c. ensure regular monitoring by appropriate authorities of the agencies accredited under the system referred to in sub-paragraph b above.” | This case concerned allegations of domestic servitude by a Ugandan woman who complained that she had been forced into working as a live-in carer. |
675 | Public persons or political figures | 2. The applicant was born in 1958 and lives in Vilnius. He was represented by Ms K. Čeredničenkaitė, a lawyer practising in Vilnius. 3. The Government were represented by their Acting Agent, Ms L. Urbaitė. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 5. The applicant is a politician. He has been a member of the Seimas (the Lithuanian Parliament) since 1996. From 2004 to 2005 he served as Minister of Finance, and from 2006 to 2008 he was Minister of Transport and Communications. In the 2009 elections for the office of President of the Republic of Lithuania the applicant was the candidate for the Lithuanian Social Democrats Party, at that time one of the biggest political parties in Lithuania. He came second, with 12% of the votes. Between 1999 and 2008 he was the deputy chairman of the party, and between 2009 and 2017 he was the chairman. 6. At the material time, from 22 November 2012 to 21 November 2016, the applicant was the Prime Minister of Lithuania. Criminal investigation regarding the Government’s adoption of Resolution no. 1025 7. In 2015 the Kaunas regional prosecutor’s office and the Special Investigations Service were conducting pre-trial investigation no. 03 ‑ 700012-15 – an investigation regarding possible abuse of office (Article 228 § 2 of the Criminal Code) – into allegations of political corruption relating to the process whereby some State territories had had their status as resorts – and thus protected territories – revoked by Government Resolution no. 1025, which was adopted on 23 September 2015. That Resolution was annulled on 2 May 2016 (see also paragraph 46 below). During that investigation a court authorised the recording of R.M.’s telephone conversations; R.M. was the mayor of Druskininkai, a resort town. One of his conversations was with the applicant (see paragraph 8 below). The authorities also intercepted a number of other conversations between R.M. and the Minister of the Environment, the Minister of the Economy, the Chancellor of the Government and other State officials. During those telephone conversations the adoption of a Government resolution on the status of resorts was discussed. 8. The intercepted telephone conversation between the applicant and R.M., which took place on 11 August 2015, went as follows: “[The applicant] – Yes. I am listening to you. R.M. – Prime Minister, as concerns the Government resolution which we discussed today, I have found out that it was not the one under consideration at yesterday’s meeting. That one concerned protected areas. [The applicant] – Well, not the one? Well? R.M. – No. Not the one. [The applicant] – I see. R.M. – This one recently has just left the Ministry of Justice, and now the Ministry of the Environment must submit it to the Government; however, it is unclear how long they will take to do it. [The applicant] – I see. OK then. I will [move things along] then. R.M. – This is not the one. And the date is not needed for that one. [The applicant] – OK. R.M. – Since the adoption. [The applicant] – Well, because there were a lot of discussions during the submission, so R.M. – Yes, yes, but there are different things in it, but not that one. 343. [The applicant] – Well, OK. I see. Thanks then. R.M. – Thank you.” 9. In the context of that pre-trial investigation, on 10 February 2016 the applicant was questioned as a witness. The applicant stated that a working relationship had existed between him and R.M.: the latter was the President of the Municipalities’ Association, the mayor, and also deputy chairman of the same political party. The applicant stated “I have no informal communication with R.M.” ( Neformaliai su juo nebendrauju ). The applicant did not deny that the conversation (see paragraph 8 above) had taken place. He stated that he had not performed any action to accelerate the Government Resolution of 23 September 2015 being submitted for adoption. He also stated that he did not think that that resolution had been in any way beneficial to R.M.’s personal interests. 10. On 12 November 2015 the Seimas passed resolution no. XII-2017 “On granting the Seimas provisional investigation commission’s powers to the Seimas Anti-Corruption Commission”, instructing its Anti-Corruption Commission to conduct a parliamentary inquiry in order to ascertain and provide a conclusion as to the circumstances on 23 September 2015 in which the Government had adopted Resolution no. 1025, which was just before the court hearing of 29 September 2015, and which had partly annulled the Government’s earlier Resolution on protection of resort zones (for details see Povilonis v. Lithuania (dec.), no. 81624/17, §§ 16, 64-67, 7 April 2022). The Seimas considered that Government Resolution no. 1025 could have aggravated the possibilities to protect the public interest ( ar taip nebuvo apsunkintos galimybės ginti viešą interesą ) in the court proceedings related to possibly unlawful construction in the Vijunėlė park territory, and that Resolution no. 1025 could have been adopted without having followed appropriate procedures (ibid.). 11. On 23 February 2016 the Seimas Anti-Corruption Commission, referring to Article 4 § 1 (1) of the Law on the Seimas Provisional Investigation Commissions (see paragraph 40 below), asked the prosecutor to provide information about when the criminal investigation, regarding possible influence on civil servants when adopting the aforementioned Government resolution, would be completed and a procedural decision that had been taken. 12. By a decision of 29 February 2016, the prosecutor discontinued the pre-trial investigation on the basis of Article 3 § 1 (1) of the Code of Criminal Procedure, that is, that no actions which could be characterised as a crime had been performed. The prosecutor’s decision contained transcripts of the telephone conversation between the applicant and R.M. (see paragraph 8 above), as well as transcripts of other telephone conversations (see paragraph 7 above). 13. On the same day, complying with the earlier request from the Seimas Anti-Corruption Commission, the prosecutor sent the commission a copy of the decision to discontinue the criminal proceedings. As later indicated by the prosecutor during the subsequent criminal proceedings (see paragraph 26 below), and as it transpires from the documents in the Court’s possession, the cover letter typed by the prosecutor and addressed to the commission did not specify that material from the pre-trial investigation could not be disclosed to the public. 14. The same day the prosecutor also sent a copy of his decision to the Chief Official Ethics Commission ( Vyriausioji tarnybinės etikos komisija ) (see also paragraphs 34 and 35 below). He referred to Article 214 § 6 of the Code of Criminal Procedure (see paragraph 43 below) and considered that the material gathered during the pre-trial investigation showed that there had been a possible breach of other laws, such as the Law on the Adjustment of Public and Private Interests in the Public Service ( Viešųjų ir privačių interesų derinimo valstybinėje tarnyboje įstatymas ) and the Code of Conduct for State Politicians (see paragraph 39 below). Disclosure of the applicant’s telephone conversation with R.M. 15. On 1 March 2016 the Seimas Anti-Corruption Commission held a hearing which was open to the public. Some twenty journalists were present at that hearing, including the journalist V.D., who had written articles for the Internet news portal Delfi. The Commission discussed the pre-trial investigation materials. 16. On the evening of the same day the Internet news portal Delfi published an article by V.D. entitled “Juicy details in the conversations that were made public: I am fed up here, but at least [I can] relax at your place for an hour or so” ( Išviešintuose pokalbiuose – pikantiškos detalės: čia užknisa protą, pas tave nors užsimiršti valandai kitai ). The article made public extracts from the transcripts of the telephone conversation between the applicant and R.M. (see paragraph 8 above), as well as extracts from some of the other telephone conversations intercepted by the law-enforcement officials in the context of pre-trial investigation no. 03-7-00012-15 which had been reproduced in the prosecutor’s decision of 29 February 2016. The article discussed the circumstances of the adoption of Government Resolution no. 1025 (see paragraph 7 above), and suggested that “nearly half of the Government, including the Prime Minister, were dancing to the music played by the mayor R.M. concerning the business affairs of the so-called Vijūnėlė manor”. The article also referred to the Chairman of the Anti-Corruption Commission stating that the story of the so-called Vijūnėlė manor was a circumstance that allowed for the disclosure of not only possible crimes, but also possible violations of ethics, abuse of power or disciplinary violations by civil servants. Later on, this information was republished by the biggest news portals in the country, as well as aired on television channels (see also paragraph 57 below). Criminal proceedings regarding the disclosure of the telephone conversations to the public 17. On 2 March 2016 the applicant lodged a complaint with the Prosecutor General, asking that the persons responsible for disclosing to the media the information which was of restricted use be brought to justice. On 1 April 2016, when questioned as a victim during the pre-trial investigation, the applicant pointed out that criminal investigation no. 03-7-00012-15 had been discontinued, and that in that criminal investigation he had had the procedural status of a witness. He noted that, under Lithuanian law, the use of pre-trial investigation material was strictly regulated, and the unlawful disclosure of such material was punishable. Under the Constitution, as well under the European Convention on Human Rights, a person’s correspondence and telephone conversations were inviolable. Such information which was collected by applying criminal-intelligence measures had to be destroyed once the criminal investigation had been discontinued. 18. That being so, the applicant also stated that “data about [his] private life [had] not been disclosed, given that during the telephone conversation [in question] [he] and R.M. [had] discussed only work-related matters, in particular, a specific resolution by the Government”. He nevertheless considered that the disclosure of his telephone conversation to the media had breached his rights as a politician and a private person, since because of that he, as a politician and a private person, had suffered serious psychological damage, for there had been a great deal of negative writing about those telephone conversations in the press. The applicant pointed out that this would “clearly have an impact on [his] career as a politician, and on the Social Democrats Party led by [him]”. He also stated that the disclosure of the telephone conversation had had negative consequences for him as a private person, since when attending certain events he had heard several negative comments regarding those disclosed telephone conversations, despite the fact that there had been nothing criminal in the conversations, and the criminal proceedings which had examined those conversations had been discontinued. The applicant considered that the telephone conversations had been made public for political gain – to harm him as a person, the Social Democrats Party and the Government. He thought that it was the Anti-Corruption Commission which was “most liable” for that disclosure. Lastly, he pointed out that the telephone number for which calls had been intercepted had been his work mobile telephone number, which had been issued to him when he had become a member of the Seimas, and that that number had not been publicly available. 19. On an unknown date R.M. also lodged an application with the Prosecutor General, complaining about the disclosure of the pre-trial investigation material at the Seimas Anti-Corruption Commission hearing of 1 March 2016. He was granted the procedural status of a victim in the context of that pre-trial investigation. The mayor R.M. considered that the disclosure of his telephone conversations had been damaging to his reputation as a politician, because it had intentionally created a negative opinion about him and had tendentiously provided distorted information, without reflecting the essence of the conversations. 20. On 7 March 2016 the Minister of the Environment also lodged an application with the Prosecutor General, in which he complained about the disclosure of the pre-trial investigation material. His arguments were similar to those of the applicant. 21. On 10 March 2016 the Prosecutor General’s Office started pre-trial investigation (no. 01-2-00056-16) into the possible disclosure by the members of the Seimas Anti-Corruption Commission of non-public material from the pre-trial investigation file (Article 247 of the Criminal Code), and also into the possible disclosure of information regarding the private life of an individual (Article 168 § 1 of the Criminal Code). 22. When questioned as a witness on 30 March 2016, the journalist V.D. stated that she had been present at the Commission’s hearing of 1 March 2016; this had not been the first hearing on the matter of the adoption of the Government resolution, and also not the first hearing at which she had been present. In V.D.’s opinion, the hearing of 1 March 2016 had been public: some twenty journalists had been present. She said that during the hearing the members of the Anti-Corruption Commission had publicly cited and discussed the transcripts of the telephone recordings of the conversations between the applicant and R.M., and between R.M. and the Minister of the Environment, as well as other telephone conversations. The journalist stated that the quotes from those telephone conversations which she had used afterwards in her article (see paragraph below) were the ones that she had heard during that public hearing of the Anti-Corruption Commission. 23. By a decision of 5 October 2016, the prosecutor discontinued the pre–trial investigation, on the grounds that no crime had been committed. The prosecutor found that the telephone conversation between the applicant and R.M., as well as that between R.M. and the Minister of the Environment, which had been reproduced in the prosecutor’s decision to discontinue criminal case no. 03 ‑ 7 ‑ 00012 ‑ 15, concerned work-related matters, and did not fall within the sphere of private life. Neither the applicant nor the Minister of the Environment had proved the opposite, nor had the mayor of Druskininkai. 24. In reaching that conclusion, the prosecutor also relied on the Constitutional Court’s ruling of 23 October 2002 to the effect that all the persons in this case – the applicant (as the Prime Minister), the Minister of the Environment – and the mayor of a town, had been public figures to whom higher moral standards applied (see paragraph 45 below). Moreover, according to the Constitutional Court’s ruling of 8 May 2000, the activities of State and municipal officials linked to the implementation of functions of the State and municipal authorities and administrations were always of a public nature (see paragraph 44 below). As could be seen from the situation at hand, the question of adoption of the Government’s resolution abolishing resort zones had had great importance for the public, therefore there had been a public interest, protected by the Constitution, for society to be informed about such pressing matters. 25. As to Article 247 of the Criminal Code – the unlawful disclosure of material in a pre-trial investigation file – referring to the case-law of the Supreme Court, the prosecutor considered that only participants in criminal proceedings could be held criminally responsible under Article 247 of the Criminal Code (see paragraph 42 below). The members of the Seimas Anti-Corruption Commission and the representatives of the media who had been present at the commission’s hearing of 1 March 2016 had not been participants in the criminal proceedings in case no. 03 ‑ 7 ‑ 00012 ‑ 15, and therefore they could not be subjected to criminal liability under Article 247 of the Criminal Code. The prosecutor also noted that the members of the Anti–Corruption Commission had not been prohibited from disclosing the pre-trial investigation data, and they had not been warned of any criminal liability under Article 247 of the Criminal Code, so it would be unreasonable to hold that they could be subjected to such criminal liability. The same went for the journalist V.D. Moreover, the commission’s hearing of 1 March 2016 had been public, and in the prosecutor’s view, under the Law on the Seimas Provisional Investigation Commissions, there had been no reason to organise it as a non-public hearing. 26. Lastly, one could also not question the actions of the prosecutor who had sent the decision to discontinue the criminal proceedings (see paragraph 13 above) to the Anti-Corruption Commission. The commission had had the right to obtain such information, pursuant to Article 4 § 1 of the Law on the Seimas Provisional Investigation Commissions (see paragraph 40 below). In taking a decision to send a copy of that decision to the Anti-Corruption Commission, and in not warning the commission that the data from the pre-trial investigation file was not to be made public, the prosecutor, who had relied on Article 214 § 6 of the Code of Criminal Procedure (see paragraph 43 below), had also not breached the requirements applicable to the criminal proceedings. It followed that no crime under Article 247 had been committed. 27. The applicant, who relied on Article 8 of the Convention, and the Minister of the Environment then appealed against the prosecutor’s decision, but on 23 November 2016 a higher prosecutor rejected their appeals. 28. On 29 December 2016 the applicant’s appeal was rejected by the Vilnius City District Court, which considered that the prosecutors’ decisions had been well reasoned, and that the telephone conversation in question (see paragraph 8 above) could not be considered to have contained information about a person’s private life. Rather, that information related “exclusively [to] work and [public] service-related matters”, therefore the element of the crime set out in Article 168 of the Criminal Code was not present. 29. On the basis of an appeal lodged by the applicant, the Vilnius Regional Court then returned the case for fresh examination, on the grounds that the first-instance court had not answered the applicant’s complaint of a possible breach of Article 247 of the Criminal Code, that is, the complaint that the pre-trial investigation had not established who had disclosed the pre-trial investigation material to the media. 30. On 10 February 2017 the Vilnius City District Court dismissed the applicant’s appeal. The court found that the conversation between the applicant and the mayor had not related to the applicant’s private life: they had only discussed the circumstances of the adoption of a Government resolution related to territorial planning, and not any matters relating to their personal or family life, or any other spheres of private life. Furthermore, there had been a professional relationship between them – one was the Prime Minister and the other was a mayor. In addition, R.M. was deputy chairman of the same political party to which the applicant belonged. In addition, the applicant himself, when questioned during the first criminal investigation on 10 February 2016, had stated that he had not maintained any relations with the mayor unrelated to work (see paragraph 9 above). Likewise, when questioned on 1 April 2016 in the context of the second criminal investigation (see paragraph 18 above), the applicant had stated that during the telephone conversation in question information related to his private life had not been divulged. Thus, finding that no private life had been discussed in the relevant conversation, the court held that the publication of the transcript of the conversation could not have infringed the applicant’s right to respect for his private life. It further referred to the Court’s judgments in Craxi v. Italy (no. 2) (no. 25337/94, 17 July 2003) and Drakšas v. Lithuania (no. 36662/04, 31 July 2012), as stating the principle that public figures were inevitably more exposed to scrutiny, but nevertheless should be guaranteed the right to privacy. The court observed that because of his position as Prime Minister, his work-related activity and his participation in public life, the applicant was a prominent politician, and that the pre-trial investigation and the telephone conversation had concerned a matter of public interest – allegations of corruption in territorial planning, which society had a legitimate interest in knowing about. Accordingly, no issue could arise under Article 168 § 1 of the Criminal Code. 31. The Vilnius City District Court also noted that the members of the Seimas Anti-Corruption Commission had not been party to criminal proceedings no. 03-7-00012-15. Nor had they been warned not to disclose the material from the pre-trial investigation file, or warned about possible criminal liability under Article 247 of the Criminal Code. At the same time, those persons had had a right to see the material from the pre-trial investigation file, as noted in Article 4 § 1 of the Law on the Seimas Provisional Investigation Commissions. The prosecutor, once asked to do so, had been obliged to provide the commission with a copy of his decision. In the court’s view, this meant that the commission members could not be held liable under Article 247 of the Criminal Code for having disclosed the material from that case. 32. By a final ruling of 20 March 2017, the Vilnius Regional Court rejected the applicant’s appeal and left the first-instance court’s decision unchanged. The disclosed information had been linked to the professional activity of a State official. The applicant had been a public figure because of the duties he had been performing at the relevant time, as the Prime Minister. Given that Article 168 § 1 of the Criminal Code protected only information of a private nature, and that the information disclosed related to a certain event – the adoption of the Government’s resolution related to territorial planning, and the actions of certain State officials – this information, which had attracted much public interest, was not private, and its disclosure could not attract criminal liability under the above-mentioned provision of the Criminal Code. 33. As to the other provision of the Criminal Code, Article 247, the Vilnius Regional Court shared the first-instance court’s conclusions in their entirety (see paragraph 31 above). The applicant’s exoneration by the Chief Official Ethics Commission 34. By a decision of 18 March 2016, the Chief Official Ethics Commission (hereinafter “the Ethics Commission”) informed the prosecutor (see paragraph 14 above) that it would not institute an investigation into the circumstances of the adoption of Government Resolution no. 1025 of 23 September 2015. 35. The Ethics Commission pointed out that the prosecutor’s decision to discontinue criminal proceedings (see paragraphs 7 and 12 above) lacked any concrete data or circumstances which would prove that the persons mentioned in that decision – the Minister of the Environment K.T., the Minister of the Economy E.G., the applicant (as the Prime Minister) and the Chancellor of the Government A.M. – had had any pecuniary or non-pecuniary interest in having that Government resolution adopted. The Ethics Commission also pointed out that the Government resolution in question had been a legal act of “general application, in contrast to individual legal acts” ( norminis, o ne individualus teisės aktas ), and thus it had not had a concrete beneficiary. The Ethics Commission also held that the above-mentioned persons had only been fulfilling their work-related duties. As for R.M., he was not a member of the Government, and did not participate in passing legal acts as part of that State institution. The prosecutor’s decision likewise lacked information proving that the adoption of that Government resolution would have had an impact on R.M.’s private property or on him personally. The Ethics Commission lastly emphasised that, pursuant to the case-law of the Supreme Administrative Court, a conflict of interest could not be established merely on the basis of suppositions or guesses. | This case concerned a telephone conversation between the applicant – who, at the time, was the Prime Minister of Lithuania – and a mayor that was secretly recorded during a pre-trial investigation into possible corruption in connection with territorial planning and was made public at a hearing of the Lithuanian Parliament’s (Seima’s) Anti-Corruption Commission. The applicant complained that the State authorities had breached his right to private life and correspondence by disclosing the telephone conversation to the media. He submitted in particular that the prosecutor and the Anti-Corruption Commission had not properly protected that information as they had been required to by law. |
707 | Dissolution or prohibition of political parties or associations | I. THE CIRCUMSTANCES OF THE CASE A. Background information 6. The Republican Party of Russia was created in November 1990 by consolidation of the Democratic Wing of the USSR Communist Party and its subsequent secession from that party. 7. On 14 March 1991 the Ministry of Justice formally registered the public association “Republican Party of the Russian Federation ”. 8. Following changes in domestic legislation, on 27 April 2002 a general conference of the public association decided on its reorganisation into a political party by the name of “Republican Party of Russia”. 9. On 12 August 2002 the applicant was registered as a party by the Ministry of Justice. 10. Its articles of association list among its aims the nomination of candidates for election to state and municipal bodies and participation in the activities of those bodies, the development of civil society in Russia and the promotion of the unity and territorial integrity of the country and of the peaceful coexistence of its multi-ethnic population. B. Refusal to amend the information about the applicant contained in the Unified State Register of Legal Entities 11. On 17 December 2005 an extraordinary general conference of the applicant elected its management bodies. In particular, Mr Zubov was elected chairman of the Political Council and Mr Sheshenin chairman of the Executive Committee. In accordance with the articles of association they became ex officio representatives of the party. The general conference also decided to change the party ’ s address and to create several regional branches. 12. On 26 December 2005 the applicant asked the Ministry of Justice to amend the information contained in the Unified State Register of Legal Entities. In particular, it asked that its new address and the names of its ex officio representatives be entered in the Register. 13. On 16 January 2006 the Ministry of Justice refused to make the amendments because the party had not submitted documents showing that the general conference had been held in accordance with the law and with its articles of association. 14. On 2 March 2006 the applicant re-submitted its request. It produced the minutes of the conferences of its regional branches at which delegates to the general conference had been nominated, the list of the delegates and the minutes of the general conference. 15. On 4 April 2006 the Ministry of Justice refused for the second time to register the amendments. It found that the applicant had not submitted documents confirming the number of its members. Moreover, the minutes of the Irkutsk, Chelyabinsk and Sverdlovsk regional conferences did not include the lists of participants. The minutes of the Arkhangelsk and Yaroslavl regional conferences were flawed because they indicated that those conferences had been convened at the initiative of the Novosibirsk regional branch. The Vladimir regional conference had not actually been held. Some of the participants at the general conference were not members of the party or had not been elected delegates. Due to those and other omissions it was not possible to establish whether the regional conferences had been quorate and whether the general conference had been legitimate. 16. The applicant challenged the refusal before a court. It argued that it was not required to submit documents confirming the number of its members. In any event, that information was already in the Ministry ’ s possession because the party had submitted it in its annual activity report in 2005. The Ministry of Justice was not empowered to verify whether the general conference and the regional conferences were legitimate. Domestic law required that such verification be conducted only before the registration of a new party or of amendments to the articles of association, which was not the case of the applicant. In any event, the general conference had been convened in accordance with domestic law and the articles of association. It had brought together 94 delegates from 51 regional branches. The delegates had been nominated at regional conferences held in compliance with the party ’ s internal rules. The law did not require the minutes of regional conferences to contain the list of participants. The minutes had indicated the total number of the members of the regional branches and the number of participants at the conferences. That information had been sufficient to establish that the conferences had been quorate. The applicant conceded that the minutes of the Arkhangelsk and Yaroslavl regional conferences contained typing errors, which, however, did not affect the outcome of the voting. The Ministry of Justice ’ s finding that the Vladimir regional conference had never been held had been refuted by the documents. The finding that some of the participants at the general conference had not been members of the party or had not been elected delegates was not supported by any documentary evidence. The applicant lastly submitted that officials of the regional departments of the Ministry of Justice who had attended some of the regional conferences had not noted any breaches of the substantive or procedural rules. The applicant claimed that the refusal to amend the Register violated its freedom of association and hindered its activities. In particular, the Ministry of Justice had refused to register three regional branches precisely because the Register did not contain the names of the applicant ’ s ex officio representatives. 17. The Ministry of Justice maintained that the decision of 4 April 2006 had been lawful. The Ministry was not only entitled, but had a legal obligation to verify the information submitted by the applicant. The verification had revealed that the documents produced by the applicant had not met the legal requirements. In particular, the minutes of the regional conferences did not all contain the list of participants. Thirty-three regional conferences had been inquorate. The applicant had never submitted any information about its local branches and it was therefore not clear who had nominated delegates for the regional conferences and whose interests they had represented. The minutes of the Arkhangelsk and Yaroslavl regional conferences indicated that the conferences had been convened at the initiative of the Novosibirsk regional branch. Due to those omissions it had not been possible to establish whether the delegates to the general conference had been duly nominated. Moreover, the decision to convene the general conference had been taken on 1 December 2005, while some of the regional conferences had taken place in November 2005. As the general conference had been convened in breach of the procedural rules, it had been illegitimate. 18. On 12 September 2006 the Taganskiy District Court of Moscow upheld the decision of 4 April 2006. It held that, under sections 15, 16, 20 and 38 of the Political Parties Act, the Ministry of Justice had been empowered to verify the information and documents submitted by the applicant before registering any amendments to the Register. The Ministry had found that the documents submitted did not meet the requirements established by law. The court had no reason to doubt its findings because they were corroborated by the case materials and had not been refuted by the applicant. The court held that the decision of 4 April 2006 had been lawful and had not violated the applicant ’ s rights under Article 11 of the Convention. 19. In its appeal submissions the applicant claimed, in particular, that the Ministry of Justice ’ s requirement to submit the same documents as for the initial registration of a party or the registration of amendments to its articles of association had no basis in domestic law. Under the Political Parties Act amendments concerning a party ’ s address or the names of its ex officio representatives were to be registered on the basis of a written notification to the registration authority. The applicant also argued that the Ministry of Justice had no authority to verify the legitimacy of its general conference. It insisted that the general conference had been held in conformity with its articles of association and with domestic law. 20. On 19 December 2006 the Moscow City Court upheld the judgment on appeal. It referred to section 32 § 7 of the Non-Profit Organisations Act and held as follows: “...A political party requesting to amend the information [contained in the Register] is to produce the same documents as required for registration of a party. The list of those documents is contained in section 16 of the Political Parties Act. [The applicant ’ s] argument that the extraordinary general conference of the party was organised and held in accordance with the law in force and with its articles of association aims at a different assessment of documents produced [by the applicant ] to [ the Ministry of Justice] for registration. At the same time, [the Ministry of Justice] and the [District] Court had reasons to conclude that the submitted documents contained information which did not meet the legal requirements. The [City] Court agrees with the [District] Court ’ s assessment of the evidence. ” C. Dissolution of the applicant 21. In 2006, in a separate set of proceedings, the Ministry of Justice conducted an inspection of the applicant ’ s activities. It issued thirty-six warnings to the party ’ s regional branches. Seven regional branches were dissolved by courts at the Ministry ’ s request and the activities of the Moscow regional branch were suspended. On 28 September 2006 the Ministry prepared the inspection report mentioning that the applicant had 49 regional branches, of which 32 had more than 500 members, and that the total number of party members was 39,970. 22. On 1 March 2007 the Ministry of Justice asked the Supreme Court of the Russian Federation to dissolve the applicant. It claimed that the party had fewer than 50,000 members and fewer than 45 regional branches with more than 500 members, in breach of the Political Parties Act. 23. The applicant submitted that it met the requirements of the Political Parties Act because it had 58,166 members and had 44 registered regional branches with more than 500 members. 24. On 23 March 2007 the Supreme Court of the Russian Federation ordered the dissolution of the applicant. It found that the Mari-El, Krasnoyarsk, Tyumen, Novosibirsk, Murmansk, and Vladimir regional branches had been dissolved by court decisions in 2006, therefore their members could not be taken into account. Eight regional branches had fewer than 500 members, in particular: – despite a warning issued by the Ministry, the Ingushetia regional branch did not submit documents showing the number of its members. According to the information in the Ministry of Justice ’ s possession, the branch had 152 members; – the applicant had submitted that the Kalmykiya regional branch had 508 members. However, an inspection had revealed that thirty-seven of them had never joined the party, four of them were simultaneously members of other regional branches, the names of three members appeared twice in the list, and eighteen members did not reside at the indicated addresses. Therefore, the branch had in fact only 468 members; – out of 516 members of the Krasnodar Regional branch eighteen had made a written declaration that they had never joined the party. Four members, while refusing to make a written statement, had made oral statements to that effect; – the Arkhangelsk regional branch had 514 members. However, seventeen of them were under eighteen years of age. Moreover, the party had not produced individual applications for membership in respect of 100 members; – 1,036 members of the Samara regional branch had been admitted to the party in breach of the articles of association. In particular, 791 members had been admitted by the branch ’ s political council elected at an illegitimate general conference. To support its conclusion that the general conference had been illegitimate the Supreme Court referred to the judgment of the Taganskiy District Court of Moscow of 12 September 2006 (see paragraph 18 above); – the Tambov regional branch had 541 members. However, the membership of 230 of them had not been confirmed. In particular, the party had not produced individual applications for membership in respect of 177 members, thirty-three members had no residence registration in the Tambov Region, four members had left the Tambov region, two members had been younger than eighteen at the time they had joined the party, three members had not signed their applications for membership, and thirty-three had declared that they had never joined the party; – the Tula Regional branch had 383 members; – the Komi-Permyatskiy regional branch had 154 members. 25. The court held that it had no reason to doubt the information submitted by the Ministry. The applicant had never contested before the courts the information contained in the inspection report or the warnings issued by the Ministry. The court further found that the Ministry had not submitted any evidence in support of their conclusions that the Karachaevo-Cherkesskiy, Altay and St Petersburg regional branches had fewer than 500 members, therefore the court accepted the number of members suggested by the applicant. The court also accepted that the party had several unregistered branches. However, their members could not be taken into account for establishing the total number of party members. The court concluded that on 1 January 2006 the applicant had 43,942 members, and 37 regional branches with more than 500 members. Thus, the applicant did not meet the requirements established by law and was subject to dissolution. 26. The applicant appealed. It submitted that the Ministry ’ s submissions had not been supported by any documents. Nor had the Ministry indicated the names of the people who, in its opinion, had been admitted to the party in breach of domestic law and the party ’ s articles of association. The first-instance court had refused to admit evidence submitted by the applicant, namely individual applications for membership and other documents confirming the number of party members. The court had not taken into account 8,819 members living in the regions where the branches were not registered, although they had been admitted to the party at the federal level and were members of the party itself and not members of its unregistered regional branches. The Ministry had conducted an inspection in March 2006; it had never verified the number of the applicant ’ s members as at 1 January 2006. Moreover, its seven regional branches had been dissolved later in 2006, therefore on 1 January 2006 they had still been functioning and the applicant had had the required number of regional branches. Lastly, as domestic law did not establish the inspection procedure, the inspections had been arbitrary. 27. On 31 May 2007 the Appellate Collegium of the Supreme Court upheld the judgment of 23 March 2007 on appeal. It found that the findings of the first-instance court had been based on sufficient evidence, namely the inspection reports compiled by the Ministry of Justice and its regional departments. The court had taken into account the number of the party ’ s members as at 1 January 2006. Individual applications submitted by the party after that date could not be taken into account because they could have been written after 1 January 2006 and backdated. Moreover, the applicant had not challenged the inspection report or the warnings issued by the Ministry. It was accordingly barred from contesting before the Supreme Court the facts mentioned in the report and in the warnings. In any event, even according to the party ’ s submissions it had only 44 regional branches with more than 500 members instead of 45, which was in itself a sufficient ground for dissolution. | The applicant party was created in 1990 by the consolidation of the Democratic Wing of the USSR Communist Party and its subsequent secession from that party. In August 2002, it was registered as a party by the Ministry of Justice of the Russian Federation. Before the Court, the applicant party complained that in 2006 the Ministry of Justice refused to amend information about it contained in the State register of legal entities, which had allegedly disrupted its activities, and that it was dissolved in 2007 for failure to comply with the requirements of minimum membership and regional representation. |
1,072 | Right to respect for private and family life, home and correspondence (Article 8 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. B.L.H., a holding company, Kver and I.O.R. (together with two further companies) had their business address at Hopsnesveien 127, Bergen (Western Norway), at premises owned by Kver. The companies used a common server and e-mail server (hereinafter referred to as “the server”) for their respective information technology systems. The server was owned by Kver. It contained the applicant companies’ electronic archives and private information (including private e-mail correspondence) of employees and other persons working for the companies, which did not have their own administration. They received administrative support from a small number of persons working in Bergen Underwater Services AS operating at the same address. 6. B.L.H.’s data were stored on the server in the user areas dedicated to three persons: Mr S., who was B.L.H.’s Managing Director, and two other persons. They were employed by Bergen Underwater Service AS – a subsidiary company of B.L.H. – which carried out management services for several companies, including B.L.H. The data in question were accessed by entering those persons’ user areas, through their respective user names and passwords. A. Accountancy audit 7. In January 2003 the Bergen tax office ( ligningskontor ) warned B.L.H. that the company’s accounts for the tax year 2001 would be audited. On 9 March 2004 a meeting was held between representatives of B.L.H., on the one hand, and the Bergen tax office and Hordaland County tax office ( fylkesskattekontor ), on the other. The meeting took place at B.L.H.’s offices in Bergen. During the meeting the tax authorities presented B.L.H. with a list of questions and demanded that B.L.H. allow the auditors to make a copy of all the data on the server, which contained, inter alia, information on B.L.H.’s accounts. 8. The representatives of B.L.H. complied with the request to grant access to the server, including offering the tax authorities the necessary passwords. They refused, however, to comply with the tax authorities’ further demand to supply a mirror copy of the (entire) server. 9. The Managing Director, Mr S., argued, inter alia, that B.L.H. did not own the server but only rented server capacity and that also other companies made use of the server. The Managing Director of Kver, the company owning the server, was called but he too refused to allow the tax authorities to take a mirror copy of the server. 10. Information and documents stored on the server were in part linked to other companies (with the necessary access control), in part to employees working for the different companies. Access to the home directorates and e-mails (including the map "private files and pictures") belonging to the different employees were protected by passwords. 11. Thus the server contained information belonging to the applicant companies and also information belonging to other companies and persons. 12. Following the refusal by B.L.H. and Kver to supply a mirror copy of the server, alternatives to a complete copy of the server were discussed. The discussion related first and foremost to whether the tax authorities would have to limit themselves to demanding copies of the part of the server administered by B.L.H. or persons working for B.L.H. The Managing Director of B.L.H., Mr S., explained to the tax authorities how they could obtain (all and only) the documents belonging to B.L.H. 13. When Kver, as a co-user and the owner of the server, opposed the tax authorities’ demand to seize the entire server, the tax authorities responded by issuing a notice that Kver would also be subject to a tax audit. They further ordered Kver to “hand over all electronically stored information”. 14. After further discussions, the parties compromised and agreed that the previous months’ backup tape would be handed over to the tax authorities and sealed pending a decision on their complaint. The backup tape contained 112,316 files in 5,560 folders, totalling 41 gigabytes. In the applicant companies’ submission, which the Government did not dispute, only a minor part of that information was relevant for the tax audit of B.L.H. 15. Both Kver and B.L.H. immediately lodged a complaint with the Directorate of Taxation, a central tax authority under the Ministry of Finance, and requested the speedy return of the backup tape. 16. On 25 March 2004 Kver informed the Bergen tax office that three other companies, including I.O.R. (the third applicant company), also used the server and had therefore been affected by the seizure of 9 March 2004. On 26 March 2004 the tax office notified those companies that they would also be audited. 17. On 1 April 2004 I.O.R. lodged a complaint with the Directorate of Taxation. B. Directorate of Taxation’s decisions of 1 June 2004 18. The Directorate gave a decision on each of the applicant companies’ complaints on 1 June 2004. 19. As regards Kver and I.O.R., the Directorate withdrew the tax office’s notice that an audit would be carried out and its demand that those companies hand over data. The Directorate observed that the tax audit concerned B.L.H. and that section 4-10 of the Tax Assessment Act ( ligningsloven ) did not authorise the measures at issue where the purpose of the audit was to collect information about third parties. 20. The Directorate confirmed the tax office’s demand that B.L.H. hand over or give access to the server. Its decision further stated that a representative of this company would have the opportunity to be present during the review of the server by the tax office. The tax office’s access to each area of the server was to be limited to those areas that were (also) used by B.L.H. 21. In reaching the above conclusion, the Directorate noted that the Ministry of Finance had observed, in its letter to the Directorate of 20 May 1997, that the term “document” in sections 4-8 and 4-10 of the Tax Assessment Act was not limited to information appearing on paper, plastic cards and so on, but also covered texts and figures stored electronically on a computer. Furthermore, the duty to hand over documents also applied to electronically stored documents. The tax authorities could choose whether to ask for paper printouts, electronically readable media, or for the documents to be forwarded to their own computers. 22. In the Directorate’s view, the question at issue concerned the delimitation of the tax authorities’ access to the “company’s archives” under section 4-10 (1) (b) of the Act (see paragraph 68 below). In instances where the documents were stored on a server, the server was to be considered as an archive for the purposes of that provision. In the present instance, the tax office had “seized” (“ tatt beslag i ”) the server and the question was to what extent the tax office could inspect it. Whether an obligation could be imposed under section 4-10 to hand over each document in the archive required consideration in the specific circumstances. 23. The Directorate moreover noted that a tax subject was not under a duty to produce documents which exclusively concerned the rights and business relationships of other tax subjects. A further limitation was that the documents in question should be relevant to the tax subject’s tax assessment. Accordingly, documents of exclusively private character fell outside that definition. That distinction was important in ascertaining the extent to which the tax authorities could themselves go through the server (the archive) or whether it was for the tax subject to decide which areas of the server should be handed over. 24. Section 4-10 (1) (b) had been added to give the tax authorities an opportunity to act with assertiveness (“ gå offensivt til verks” ) when inspecting archives in order to find documents of importance to the activity concerned. It was thus clear that the authority to audit did not just amount to the passive reception of information handed out by the person subjected to the audit. 25. Moreover, the Directorate noted, section 4-10 of the Act applied to the tax audit of a specific tax subject. The handing over of documents relating to other tax subjects ought to be based on Chapter 6 of the Act. In instances where the archives were physically separated (into different parts of the server), section 4-10 did not authorise the imposition of access to the archives of other companies. In the present instance, Chapter 6 did not apply. 26. To the extent that a joint archive was not physically divided but was mixed, the tax subject could not refuse the tax authorities access to the archive. In discussions on the draft legislation, it had been emphasised that the purpose of an audit should not be undermined by the tax subject withholding documents. In the Directorate’s view, this ought also to apply in relation to access to the tax subject’s archives. The tax subject could thus not refuse the tax authorities access to its archives on the ground that they contained documents concerning other tax subjects. The duty to hand over all documents contained in the archives should, however, be limited to documents of importance to the tax subject’s tax assessment, see section 4 ‑ 10 (1) and (2). 27. In practice, in order to solve the problem of the tax subject avoiding the inspection of documents in the archives (the server) that were insignificant for its tax assessment, the tax subject would be allowed to be present during the review of the archive (see section 4-10 (3)). Accordingly, the Directorate stated, a representative of B.L.H. was to be present during the tax authorities’ review. C. Appeals to the City Court and the High Court 28. Under section 11-1 of the Tax Assessment Act, the applicant companies instituted proceedings before the Oslo City Court, asking it to quash the Directorate of Taxation’s decision of 1 June 2004 in respect of B.L.H. and to order the return of the backup tape to Kver. On 10 June 2005 the City Court found in favour of the State and rejected the applicant companies’ appeal. 29. In its judgment, the City Court found that the measure imposed by the tax authorities could comprise the copying of data for subsequent inspection at the tax office to the same extent as on-site access to data on the server could be imposed. It also found that the server in the present instance should be considered in the same way as mixed paper archives. 30. The applicant companies appealed to the Borgarting High Court, which by a judgment of 30 April 2007 upheld the City Court’s decision on essentially the same grounds. The High Court noted inter alia that the case concerned an inspection by the tax authorities of a taxpayer in connection with a notified tax audit, an area in which the principle of legality ( legalitetsprinsippet ) applied, as did other legal safeguards, including the prohibition of self-incrimination derived from Article 8 of the Convention. D. Appeal to the Supreme Court 31. On 2 June 2007 the applicant companies appealed to the Supreme Court, disputing in the main the High Court’s application of the law. It had failed to appreciate that the relevant provisions of section 4-10 (1) laid down clear limits for the manner of conduct of a tax inspection, which could be carried out only of the archives of the tax-subject in question, and a demand to hand over documents should be limited to pertinent material contained therein. These limits had been transgressed in the present case. 32. The threshold for accepting access beyond the relevant company’s own archives ought to be high, not least because, by reviewing the server, the right to inspect B.L.H. had been extended to other tax subjects that were not being audited, and to any private and confidential information stored on the server. They referred to Article 8 of the Convention, according to which interference with “home” and “correspondence” was not permitted unless it was “in accordance with the law” and “necessary in a democratic society”. They submitted that, according to the European Court’s judgment in Société Colas Est and Others v. France (no. 37971/97, ECHR 2002 ‑ III), Article 8 also protected companies. 33. By empowering the authorities to demand copies of the server this would also give them full access to personal data belonging to employees working for different companies as well as any private correspondence that they might have stored on the server or received on their respective e-mail addresses. This aspect of the case also appeared to breach Article 8 of the Convention, as well as laws and regulations on the processing of personal data. 34. Since the imposition of an inspection of the archives of entities others than B.L.H. lacked a basis in section 4-10 (1) (b) of the Tax Assessment Act and Article 8 of the Convention, the tax authorities had acted contrary to the national legal provisions relied on. 35. The application of the mixed-archive doctrine to their case had no legal basis, nor did it follow from clear and established practice. The tax authorities had not documented that there was a mixed archive in the instant case or made any attempt to carry out a prior on-site review in order to determine whether it would be possible to separate B.L.H.’s archives from those of the other companies. It ought to be a condition for a company accepting the seizure of its archives that adequate attempts be made to restrict the seizure to those areas that concerned the activity at issue. Where a partial inspection on the spot revealed that one or more documents had no corroborative significance, the tax authorities could not, according to the Supreme Court’s case-law, seize the archives for further investigation. The same would also follow from Article 8 of the Convention. 36. There had been no legal basis for the authorities to take a full backup copy of the server. The Tax Assessment Act had come into force at a time when archives had been paper based. In the absence of the tax subject’s consent and any prior review, the tax authorities were not entitled to take away an entire paper archive in order to go through all the material at the tax office. The same ought to apply in relation to electronically stored documents, the only difference being that they had to be printed out rather than being photocopied. In this manner the intents and purposes of the Act would be fully taken into account. The copying of the server in order to subsequently review the entire archives constituted an interference that could not be justified as proportionate and necessary for the purposes of Article 8 of the Convention. 37. In additional written pleadings to the Supreme Court dated 6 July 2007, the applicant companies stated, inter alia : “In this context, it is noted that the references to Article 8 of the Convention in the notice of appeal do not constitute a new submission. As the Attorney General also indicates, reference to the Convention was made during the oral proceedings in the lower courts. In the High Court the respondent made reference to a decision of the Icelandic Supreme Court which considered the relationship between Article 8 of the Convention and the country’s competition law. The decision is enclosed in the joint case documents before the High Court, on page 109 et seq.” E. The Supreme Court’s judgment 38. In its judgment of 20 November 2007 ( Norsk Retstidende 2007 p. 1612) the Supreme Court upheld the High Court’s judgment by four votes to one and held that no award should be made for costs. 1. Opinion of the majority 39. Mrs Justice Stabel, whose opinion was endorsed in the main by the other members of the majority, observed that the case raised three questions, all related to section 4-10 (1) (b) of the Tax Assessment Act concerning the inspection of records located on a computer server: First, whether the tax authorities could demand access to all the records, regardless of content; secondly, whether this also applied in cases where the records included material belonging to other taxpayers; and, thirdly, whether the tax authorities could demand access in order to copy material for subsequent inspection at the tax office. 40. Section 4-10 (1) (a) of the Tax Assessment Act empowered the tax authorities to order a tax subject to hand over specific documents of significance for a tax assessment. Sub-paragraph (b) provided, in addition to the on-site visit and review of the taxpayer’s assets, a legal basis for the imposition of a review of the company’s archives. With the exception of the rule on review of archives (“ arkivgjennomsyn ”) in sub-paragraph (b), those provisions were essentially a continuation of the earlier ones of the Taxation Act on the duty to provide information and allow special inspections. Since the rule on review of archives had been added during the consideration of the Bill by the Parliamentary Committee on Financial Matters’, the preparatory work had been rather sparse. On the other hand, the Committee had pointed out that an order to produce a document pursuant to sub ‑ paragraph (a) presupposed knowledge about the existence of the document, and that the refusal to allow access to review archives constituted a hindrance to effective inspection. 41. From the context, it transpired that the purpose of the provision in section 4-10 (1) (b) was to provide a basis for the tax authorities to assess whether a tax subject possessed documents which he or she could be ordered to produce under sub-paragraph (a). The duty to produce documents was not limited to accountancy documents. What was decisive was whether the documents were significant for the taxpayer’s tax assessment and the authorities’ review of the latter. It was clear that also electronic documents were covered by sub-paragraph (a). 42. Sub-paragraph (b) should naturally be interpreted in the light of its purpose. The aim of an inspection was to find out whether an archive contained documents that could be significant for tax assessment purposes. Access should therefore comprise all archives which the tax authorities had reason to assume contained information of significance for the tax assessment, not just those archives or parts of archives that included accountancy material. In the interests of efficiency of the tax audit, access at that stage should be relatively wide. Therefore, the companies’ argument that it should be up to each tax subject to give binding indications as to which parts of the archive contained documents of significance for the tax assessment or the audit had to be rejected. 43. Access to archives could not be compared to search and seizure, as argued by the applicant companies. Measures taken under Chapter 4 of the Tax Assessment Act formed part of ordinary administrative procedures with a view to ensuring that a correct tax assessment was made. An accountancy audit could be initiated independently of any suspicion of the commission of a criminal offence. An order imposed pursuant to section 4-10 also involved compulsion of a different character than enforcement measures (“ tvangsmidler ”) in the context of criminal proceedings, where the prosecution executed the measure by way of enforcement (“ tvangsgjennomføring ”). The principle of the duty to submit tax returns, supplemented by the tax subject’s duty to provide information under section 4-2, presupposed that it should be possible to verify and depart from the information provided by the tax subject. The consequences of a tax subject’s refusal to cooperate were exclusively administrative (discretionary tax assessment). 44. As to the applicants’ argument that the server contained archives belonging to several companies, Mrs Justice Stabel observed that where several companies shared an archive and the areas belonging to the different users were clearly separated, the authorisation to access the archives was limited to the tax subject concerned. The problem arose where it was not possible, at least in advance, to ascertain whether the respective parts were clearly separated, typically where the data were stored electronically on a common server. On this point she agreed with and cited the Directorate of Taxation’s distinction between separate and common (mixed) archives in its decision of 1 June 2004: "When several tax subjects share an archive, one must, in the opinion of the Directorate, distinguish between cases in which the archives are clearly physically separated and cases in which there is a common (mixed) archive. Whether or not an area will be considered as clearly separate must be assessed in the specific case. The Directorate emphasises that, at present, there is insufficient information in this case to make that assessment." 45. Mrs Justice Stabel further agreed with the High Court that, as a starting point, where full access was not given to the tax authorities, it should be possible to impose full access if the archive was organised in a manner making the tax authorities dependent on indications by the tax subject in order to identify relevant information. It would be up to the companies whether they wished to organise clearly separate archives or to maintain mixed archives which, in practice, would lead to an extension of the tax authorities’ powers. 46. In the present case, the companies had disputed that there had been a mixed archive of the type described. They had argued that B.L.H.’s representative should be able to identify which users had been working on matters pertaining to them and which files had been relevant to their activities. However, it followed from the facts established by the High Court that B.L.H. did not have its own administration but was serviced by a small number of persons in Bergen Underwater Services AS located at the same address, as was the situation of the other companies using the server in question which was owned and run by Kver. B.L.H. did not have its own user area, but the persons who provided services to the company stored the company’s documents under their own user names and passwords. 47. It would have been impossible for the tax authorities to identify immediately the areas of the server where the relevant information was stored. The archive was not organised with clear separations between the different companies, and the distinction between each service person’s user area was not such as to enable the tax authorities to identify information of significance for the tax assessment. In this situation, the High Court had correctly considered that the tax authorities could not depend on B.L.H. indicating the files that might be relevant for the tax assessment of the company. Therefore, the authorities ought to be vested with powers to review all the data on the server. Like the High Court, she also attached some weight to the fact that it had been fully possible to organise the cooperation regarding the use of the server differently, for example by applying consistently own user names. 48. As to the third question, the manner in which the review of the relevant data should take place, Mrs Justice Stabel took note of the fact that the backup tape containing all the information on the server had been prepared, sealed and taken to the tax office, pending a final judgment in the case. A backup tape contained all the files stored in the archive but, unlike a mirror copy, not the computer programmes and deleted material, as the tax authorities had initially wanted. 49. The question was whether the imposition of a duty to allow access with a view to take copies for subsequent inspection at the tax office could be deduced from the right to demand access to the company’s archives. The answer did not follow directly from section 4-10 (1) (b) of the Tax Assessment Act. Unlike sub-paragraph (a), which expressly stated different alternatives for access to documents, sub-paragraph (b) made no mention of how the review should take place. That provision was supplemented by section 4-10 (3), which authorised the tax authorities to demand the presence of a representative of the tax subject in order to provide the necessary guidance, assistance and access to the company’s premises. 50. The question of copying was twofold: did the tax authorities have a right to require a copy and, if so, could the tape then be inspected at the tax office? 51. Very little preparatory work had been carried out on that provision and that particular point had not been dealt with. Since archives had been almost exclusively paper based at the time when the provision had been enacted, the question of copying a whole archive had been unlikely to arise. In view of its purpose, there was no reason to interpret the provision to the effect that it hindered the imposition of a requirement to take a copy where the review of a copy was desirable. The central question was whether the measure imposed by the tax authorities could also include the taking of material to the tax office. 52. The rationale behind sub-paragraph (b) – namely to remove obstacles to an effective audit occasioned by the requirement on the tax authorities to show that the archives contained documents that were significant for tax assessment purposes – militated strongly in favour of an interpretation adapted to the current situation. According to the Directorate of Taxation, an on-site inspection would be particularly time-consuming, and if the authorities were unable to take copies for inspection at the tax office, they would face difficulties in implementing the audit. 53. It could be questioned whether access would entail such an additional burden for the tax subject that the above interpretation would be incompatible with the principle of legality ( legalitetsprinsippet ). In the view of Mrs Justice Stabel, it was difficult to see that this could be the case. Indeed, the inspection as such would be less burdensome in that the tax subject would at no time be deprived of access to the archive. The requisite safeguards were preserved as the tax subject had a right, under section 3 ‑ 5 (1) of the Tax Assessment Act, to be notified about and to be present during the authorities’ review of the tape. If the measure was the subject of a complaint, the material had to be sealed pending examination of the complaint (section 3-6 (4)). In most instances, there was reason to believe that it would also be in the tax subject’s interest that the review took place at the tax office. In any event, there was little reason to oppose that. 54. Mrs Justice Stabel agreed, however, that the protection of privacy (“ personvernhensyn ”) had to be taken into consideration, because the review of the archive was not limited to accountancy documents but included other documents in the archives which the tax authorities had reason to believe might be of relevance for the tax assessment. However, the tax authorities could also access such sensitive information even if the review were carried out on the tax subject’s premises. Even though, theoretically, there would always be a danger of abuse, which might be somewhat greater if the copied material were taken to the tax office, that risk was hardly so great as to be decisive. 55. It had not been alleged that the backup copy contained more data than what would have been accessible had the review been carried out on-site. The legal safeguards described above would be observed during the review. It was further understood that once the review had been completed, the copy would be destroyed and all traces of the contents would be deleted from the tax authorities’ computers and storage devices. In addition, the review was to provide a basis for orders pursuant to section 4-10 (1) (a). The tax authorities would not be authorised to withhold documents from among the material that had been taken away unless the tax subject accepted the measure. 2. Dissenting opinion 56. The dissenting member of the Supreme Court, Mr Justice Skoghøy, agreed with the view held by the majority that the tax authorities could require B.L.H. to give access in order to enable them to carry out an inspection of the server used jointly by the applicant companies. 57. As to the further issue of whether the tax authorities could demand a copy of the server on which the archive was stored with a view to subsequent review at the tax office, Mr Justice Skoghøy observed as follows. In his view, section 4-10 (1) (b) could not reasonably be understood to mean that it authorised the tax authorities to demand a copy of the archive. The provision was limited to “review”. To demand a copy was something else and much more far-reaching. 58. The reason why the majority in Parliament in 1980 had been in favour of conferring on the tax authorities a power to search and seize material was that they had believed that the authorities should be able to ensure that important documents had not been “hidden or destroyed (notably burned)”. If the tax authorities were allowed to demand a copy of the archive, they would in reality be empowered to seize, a power which the majority in Parliament in 1984 had not wished to give them when removing a provision to that effect before the entry into force of the relevant part of the Tax Assessment Act. 59. He agreed with the majority that the right to review archives under section 4-10 (1) (b) comprised not only archives containing accountancy material but all archives that potentially contained documents of significance for the tax assessment. This meant that the archived material which the tax authorities could demand to review included a great quantity of sensitive personal data. If the tax authorities were to be empowered to demand the copying of archives, the risk of dissemination and abuse of sensitive personal data would increase considerably beyond what followed from a review on the taxpayer’s premises. This applied especially to the copying of electronic archives. The search facilities for an electronic archive were different from those used for a traditional paper-based archive. Even if electronically stored data were deleted, they could be reconstructed. Also, electronically stored data might be disseminated far more easily and effectively than information on paper. The right of the tax subject to be present when the tax authorities opened and reviewed the archive did not constitute a guarantee against abuse. There was no way of ensuring that that right had been respected. Therefore, weighty considerations of legal security and protection of privacy militated against conferring on the tax authorities a right to demand a copy of the archive. As the majority in Parliament had pointed out in the context of the legislative amendment in 1984, the requirements of legal security and protection of privacy were an overriding political aim in a democratic society. In particular, since the parliamentary majority had voted strongly against search and seizure, and since copying for subsequent review at the tax office was in reality a form of seizure, Mr Justice Skogøy found that the tax authorities clearly should not be empowered to require a copy without the question being first considered by the legislator and a clear statutory power given for copying. 60. On that ground, Mr Justice Skoghøy voted for quashing the Directorate of Taxation’s decision of 1 June 2004 in respect of B.L.H. authorising the copying of the server. F. Process for review of the backup tape 61. On 28 January 2008 the Tax Administration ( skatteetaten, Skatt Vest ) notified the applicant companies of their intention to open the tape with a view to ordering the production of documents. It notified them of the dates, time and place of the review, its object, certain preparatory processing not involving searching or opening of documents, and the identity of the companies concerned. It also invited them to appoint a common representative to attend the said preparations, and the opening and review of the tape. 62. In a letter to the applicant companies dated 30 April 2008, the Tax Administration responded, inter alia, to certain complaints made by the applicant companies in their letter of 22 February 2008. 63. In response to the applicant companies’ complaint that the backup tape had been secretly copied, the Tax Administration reiterated that they had already informed the applicant companies in a letter of 19 June 2007 that after their meeting on 5 June 2007, the contents of the tape had been copied to hard disk. This had been necessary in order to be able to open and read the files, and the data would be carefully secured pending further proceedings. Except for in the limited context of the criminal investigation described in paragraph 65 below, the files had not been opened and read. 64. As regards the applicant companies’ demand that either the two hard disks in question be handed over to B.L.H., or the copied material be deleted, the Tax Administration replied that they could not see that the Supreme Court’s judgment of 20 November 2007 would prevent them from copying the contents of the backup tape to hard disk, or that the actual review could be carried out on this instead of the backup tape. They referred to the Supreme Court’s reasoning summarised in paragraph 49 above. The copying of the data onto an independent, free and unused hard disk was necessary in order to be able to carry out an appropriate review of the contents of the backup tape. In that connection, the tax office took note of the Supreme Court’s understanding that, once it had been reviewed, the copy would either be returned or destroyed, and all traces of the contents would be deleted from the tax authorities’ computers and storage devices. The Supreme Court’s reasoning thus appeared to be based on the presumption that the contents of the server could be copied temporarily as described. The tax office would not hand over the hard disks or delete information from the backup tape stored on them until completion of the review. 65. In reply to a request by the applicant companies for the names of personnel who had dealt with the case, including those who had viewed documents on the backup tape, the tax office stated that the correspondence, faxes and e-mails that the tax authorities had produced in connection with the case indicated sender’s identity. Moreover, representatives of the tax office had presented themselves by name during meetings and telephone conversations that had taken place. Furthermore, in the context of a separate tax investigation of the applicant companies and other companies within the same ownership sphere that were linked to a certain Mr X and criminal proceedings against the latter, the regional tax office had filed a complaint against him to the police alleging that he had committed aggravated tax fraud. During the criminal investigations the police had obtained a judicial order authorising the seizure of the backup tape. The tax office accepted to assist the police, in accordance with relevant agreements and instructions. The assistance had consisted of the reviewing of the backup tape, during the period between January and March 2006, by certain named expert accountants and a tax lawyer. After completion of the work, the police had demanded that the Office delete all documents stored electronically and shred all paper copies taken. That had been done immediately. In the proceedings before the High Court in the present case, the parties agreed to distinguish these from the afore-mentioned criminal proceedings. 66. The Tax Administration agreed with the applicant companies that it would be problematic with respect to the duty of confidentiality if the representative(s) of all taxpayers present were to be given the opportunity to view the computer screen during the review of documents. For that reason – and because it would have made working conditions difficult if the officer had the said representative(s) just behind his back while working on the backup tape – it had been decided that the representative(s) would not have access to the screen or to read printed documents continuously during the inspection (section 3-13 (1), first sentence, and section 3-5 (1), second sentence, of the Tax Assessment Act). The representative(s) would therefore be directed to another part of the premises where they could observe the processing but not the documents being reviewed. As the officers identified documents that the taxpayer would be ordered to produce, the documents would be printed out and listed. After completion of the review, the printed and listed documents would be sorted for each taxpayer in the case complex. The representative of the individual taxpayer would then be given access to the document which concerned him and would, in so far as desirable, be able to comment. III. THE COUNCIL OF EUROPE DATA PROTECTION CONVENTION 76. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). Article 5, which deals with quality of data, provides: “Personal data undergoing automatic processing shall be: a. obtained and processed fairly and lawfully; b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes; c. adequate, relevant and not excessive in relation to the purposes for which they are stored; ... e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.” 77. Article 7 on “Data security” states: “Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.” 78. Article 8, providing for “Additional safeguards for the data subject”, reads: “Any person shall be enabled: a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file; b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form; c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this convention; d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.” 79. Article 9, setting out the conditions for “Exceptions and restrictions”, provides: “1. No exception to the provisions of Articles 5, 6 and 8 of this convention shall be allowed except within the limits defined in this article. 2. Derogation from the provisions of Articles 5, 6 and 8 of this convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of: a. protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences; b. protecting the data subject or the rights and freedoms of others. 3. Restrictions on the exercise of the rights specified in Article 8, paragraphs b, c and d, may be provided by law with respect to automated personal data files used for statistics or for scientific research purposes when there is obviously no risk of an infringement of the privacy of the data subjects.” | This case concerned the complaint by three Norwegian companies about a decision of the tax authorities ordering tax auditors to be provided with a copy of all data on a computer server used jointly by the three companies. The applicants maintained that this decision had breached their rights to respect for home and correspondence, alleging in particular that the measure had been taken in an arbitrary manner. |
76 | Parental authority, child custody and access rights | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1967 and lived in Achern, Germany, before moving to Spain in 2008. 1. Background to the case 8. The applicant, who was born in Nigeria, entered Germany in 2003 and applied for asylum. His asylum request was dismissed, a decision which became final in February 2006. 9. Starting in June 2003 the applicant had a relationship with Mrs B. who was married to Mr B.; the spouses have three children born in 1996, 1998 and 2000. Although she initially considered a divorce, Mrs B., who never lived with the applicant, left the applicant in August 2005 and lived with her husband, Mr B., and the children again. 10. In December 2005 Mrs B. gave birth to twins. The applicant is the biological father of the twins. Mr and Mrs B. are bringing up the twins together. According to Article 1592 no. 1 of the Civil Code (see paragraph 2 8 below), Mr B. is their legal father. Mr and Mrs B. repeatedly refused requests made by the applicant, both before and after the twins ’ birth, to be allowed contact with the twins. 2. Proceedings before the District Court 11. On 27 September 2006 the Baden-Baden District Court, having heard the applicant and Mr and Mrs B. in three hearings, granted the applicant contact with the twins once per month for one hour, initially in the presence of a third person and of either Mr or Mrs B. if they wished to be present. 12. The District Court found that the applicant was entitled to access under Article 1685 § 2 of the Civil Code (see paragraph 27 below) as he was a person with whom the children had close ties. The fact that he had not yet borne any responsibility for the children did not hinder that entitlement, as the applicant had had no possibility to take such responsibility since the twins had been born in December 2005. Hence his access rights could not be denied. 13. The District Court further considered that contact between the applicant and the twins was in the children ’ s best interest. It agreed with the findings of the psychological expert it had consulted, who, having heard Mr and Mrs B. and the applicant, had concluded that contact with the applicant was beneficial for the children ’ s welfare. Particularly in view of their African-German origins, a relationship with the applicant, their natural father, would be essential for them to get to know their roots, to build up their identity, to understand why they were different and to develop normal self-esteem. The District Court also found that the applicant ’ s access rights could not be delayed any further as they were being increasingly contested by Mr and Mrs B. The applicant ’ s access to the twins would not adversely affect Mr and Mrs B. ’ s other three children because, as the psychologist had convincingly argued, dealing frankly with the realities would be in the best interest of all concerned. 14. In coming to its decision, the District Court took into consideration that when Mrs B. and the applicant had separated in August 2005, the applicant had agreed that the twins could stay with the B. family but had stated that “he wanted to have a chance in the asylum proceedings”. He had subsequently asked to be granted access to the twins after their birth, which Mr and Mrs B. had refused. He had argued that if he did not stay in Germany, it would be impossible in practice for him to have any contact with his children and build up a relationship with them. In Mr and Mrs B. ’ s submission, the applicant wanted access to his children only in order to obtain a residence permit in Germany. The psychological expert, for her part, stated that it appeared that Mr and Mrs B. were now interpreting the applicant ’ s relationship with Mrs B. – wrongly and in accordance with common prejudices – as a mere attempt to obtain a residence permit, in order to blame him for their own difficult situation. 3. Proceedings before the Court of Appeal 15. On 12 December 2006 the Karlsruhe Court of Appeal allowed an appeal lodged by Mr and Mrs B., quashed the decision of the District Court and dismissed the applicant ’ s request for access to the twins. 16. The Court of Appeal found that the applicant was not entitled to access to the children under Article 1684 of the Civil Code (see paragraph 26 below) because the provision only referred to the entitlement of the legal father (as opposed to the biological father), who in the present case was Mr B. (Article 1592 no. 1 of the Civil Code, see paragraph 28 below). As the children were living with their legal father, the applicant was also not entitled to acknowledge paternity (Article 1594 § 2 of the Civil Code, see paragraph 29 below ) nor could he contest Mr B. ’ s paternity (Article 1600 § 2 of the Civil Code, see paragraph 30 below ). 17. The Court of Appeal further found that the applicant was not entitled to access under Article 1685 of the Civil Code. Being the biological father of the twins, he was, in principle, considered a person with whom the children had close ties ( enge Bezugsperson ) within the meaning of that provision. He nevertheless had not fulfilled the remaining requirements of Article 1685 of the Civil Code, as he had not borne any responsibility for the children in the past and thus had no social and family relationship with them. 18. As the applicant was therefore not entitled to claim access, it was irrelevant whether contact between him and the twins was in the children ’ s best interests. 19. The fundamental right to respect for one ’ s family life and one ’ s parental rights under Article 6 of the Basic Law (see paragraph 2 4 below) and Article 8 of the Convention did not require a different interpretation of the provisions of the Civil Code. With regard to Article 6 of the Basic Law, the Court of Appeal found that the applicant, being the biological, but not the legal father of the twins, was not a “parent” within the meaning of paragraph 2 of that provision, in particular because the coexistence of two fathers was not consistent with the notion of parental responsibility. Moreover, Article 6 § 1 of the Basic Law protected the access of the biological father to his child only where a social and family relationship between them had already existed in the past; it did not protect the wish to build up a relationship with the child in the future. The reasons why there was no relationship between the biological father and the child were irrelevant. 20. The Court of Appeal noted that the refusal to grant the applicant access to the children would mean that he would be unable to build up a relationship with them and would be expelled to Nigeria. Therefore, the children would most probably never be able to get to know their biological father. However, that was because the twins lived in a family together with their legal father who was actually assuming the father ’ s role. It was the legislator ’ s evaluation, expressed in Article 1600 § 2 of the Civil Code, that the existing relationship between legal father and child took precedence over the relationship between biological father and child. 21. With regard to Article 8 of the Convention, the Court of Appeal observed that there had never been a family bond between the applicant and the twins. It also distinguished the present case from the case of Görgülü v. Germany ( no. 74969/01, 26 February 2004 ) inasmuch as the applicant in that case had also been the legal father of his child and had obtained the right to custody. 4. Proceedings before the Federal Constitutional Court 22. On 29 March 2007, without giving reasons, the Federal Constitutional Court declined to consider the applicant ’ s constitutional complaint, in which he had claimed that the refusal to grant him access to the twins had violated his right to respect for his family life (file no. 1 BvR 183/07). 5. Subsequent developments 23. On 15 May 2007 the Freiburg Administrative Court dismissed the applicant ’ s request for an interim order suspending his expulsion until the European Court of Human Rights had decided upon his application. The applicant did not appeal against that decision. The main proceedings before the Freiburg Administrative Court, in which the applicant again applied for a residence permit, are apparently still pending. The applicant moved to Spain in 2008. | This case concerned the refusal of German courts to allow the applicant to see his biological children, twins, with whom he had never lived. |
627 | Authors and publishers of books | I. THE CIRCUMSTANCES OF THE CASE 9. The first applicant is a writer and the second is the chairman of the board of directors of the publishing company P.O.L.; the third was the publication director of the daily newspaper Libération. They were born in 1955, 1944 and 1949 respectively and live in Paris. A. The conviction of Mr Lindon and Mr Otchakovsky-Laurens (application no. 21279/02) 1. The publication of the novel “ Jean-Marie Le Pen on Trial ” 10. The first applicant is the author of a book presented as a novel under the title Le Procès de Jean-Marie Le Pen ( “ Jean-Marie Le Pen on Trial ” ), published in August 1998 by P.O.L. 11. The novel recounts the trial of a Front National militant, Ronald Blistier, who, while putting up posters for his party with other militants, commits the cold-blooded murder of a young man of North African descent and admits that it was a racist crime. He is defended by a Jewish, left-wing and homosexual lawyer, Pierre Mine. The novel is based on real events and in particular the murders, in 1995, of Brahim Bouaram, a young Moroccan who was thrown into the Seine by skinheads during a Front National march, and of Ibrahim Ali, a young Frenchman of Comorian origin who was killed in Marseilles by militants of the same party. Those militants were convicted in June 1998 after a trial in the Assize Court during which Front National leaders, Mr Le Pen included, declared that the case was no more than a provocation and a put-up job through which the party ’ s enemies sought to harm it. The author builds the plot around the lawyer, the main protagonist, who throughout the trial finds himself embroiled in a political debate. At the very beginning he raises the question of Mr Le Pen ’ s responsibility: “ Isn ’ t the Chairman of the Front National responsible for the murder committed by one of his teenage militants inflamed by his rhetoric? ” (page 7). The novel focuses on a number of figures who are characterised by their moral or political positions in relation to the ideology and political party of the far right. The work also seeks to highlight the difficulties and contradictions of certain “ anti-racist ” stances. 12. The text on the back cover of the book describes the novel as follows: “ How can Jean-Marie Le Pen be fought effectively? The youth Ronald Blistier, member of the Front National, has committed a cold-blooded racist murder, killing an Arab youth in the open street. The case has caused an outcry and it is generally agreed that Blistier ’ s trial should really be that of his mentor. Thirty-year-old Jewish lawyer Pierre Mine is defending the murderer. He has certain ideas about how best to fight Jean-Marie Le Pen. – Set a trap for Le Pen? But it would backfire on all of us, warns his boyfriend Mahmoud Mammoudi. Pierre Mine pursues his fight regardless. His strategy is unfathomable. Won ’ t he become the punchbag of the anti-racists and the champion of those he seeks to defeat? Jean-Marie Le Pen pretends to show him some respect. He is beset with troubles on all sides – it ’ s as if those who have no real success in their fight against the Front National are nevertheless suspicious of anyone trying a different approach. ” 13. By originating summonses of 20 and 27 November 1998, the Front National and Mr Le Pen brought proceedings against the first two applicants in the Paris Criminal Court for the offence of public defamation against a private individual, as a result of the novel ’ s publication, under sections 29(1) and 32(1) of the Freedom of the Press Act of 29 July 1881. Six extracts from the novel were the subject of particular complaint: those ( on pages 10, 86, 105-06 and 136) that were reproduced in a judgment delivered by the Paris Court of Appeal on 13 September 2000 (see paragraph 1 8 below), and the following two passages : On page 28 the author attributes the following remarks to Mrs Blistier, Ronald ’ s mother: “ It might have crossed his mind, but he was never much good at shooting – my husband didn ’ t like Ronald using his rifle. But maybe the lad was humiliated because he ’ d never beaten anyone up, when all his mates from the Front National were bragging about their weekly clean-up rounds on the housing estates. ” On page 118, concerning a Front National demonstration, the author writes: “ The crowd assembled on Place de la Bastille, now whipped up by their master ranter, mostly consists of youths. If you searched them you ’ d find handguns by their hundreds. They ’ re ready for a fight – they ’ re only too pleased if far-left organisations think it ’ s a good strategy to confront them. The atmosphere is in some ways one of pre-insurrection, but as the journalists present have observed, the feeling on the side of the democrats is more one of disgust than of panic. A fascist coup d ’ état isn ’ t yet on the cards, there is more a fear of gangrene setting in – a social disease that can occasionally be stopped from spreading or curbed temporarily. ” 2. The Paris Criminal Court ’ s judgment of 11 October 19 9 9 14. In a judgment of 11 October 1999, the Paris Criminal Court convicted the second applicant of defamation and the first applicant of complicity in that offence, taking account, however, of only four of the six offending extracts, namely those on pages 10, 86, 105-06 and 136 of the book. They were each sentenced to pay a fine of 15,000 French francs (FRF) ( equivalent to 2,286.74 euros (EUR) ) and ordered jointly and severally to pay FRF 25,000 (EUR 3,811.23) in damages to each of the civil parties, together with the cost of publishing an announcement of the judgment. In its judgment the court found as follows: “ Whether the publication was defamatory : It should first be noted that, whilst the author chose to write a ‘ novel ’, as indicated on the front cover of the book, he portrays, along with a number of fictional characters, an actual and living political figure, namely Jean-Marie Le Pen, and his party, the Front National. In addition, the author announces the subject matter of his work in the title itself, ‘ Jean-Marie Le Pen on Trial ’. On the back cover he asks the question ‘ How can Jean-Marie Le Pen be fought effectively? ’ and in the first few lines of the book he raises another question: ‘ Isn ’ t the Chairman of the Front National responsible for the murder committed by one of his teenage militants inflamed by his rhetoric? ’ The reader thus immediately becomes aware that the fictional trial is a vector for direct criticism of Jean-Marie Le Pen, especially since the facts described are largely, and obviously, inspired by actual events which have had a great impact on public opinion. Accordingly, although it is a novel, and although the offending remarks are only made by fictional characters, it can nevertheless be observed that the work seeks to impart clearly expressed ideas and to communicate a certain image of Jean-Marie Le Pen, his party and their behaviour. The classification of the charge cannot therefore be ruled out purely on the basis of the technique used to that end. The text, regardless of its literary genre, is capable of harming the honour and reputation of the civil parties and it is appropriate to examine each of the offending extracts to establish their meaning and significance and to determine whether, for the charge of defamation to be made out, they are precise enough for the issue of proof to be addressed. First passage, page 10: To allege that Jean-Marie Le Pen is the chief of a gang of killers – in other words, that he heads a group of murderers – constitutes, in the context of the book, an evidently defamatory allegation of sufficiently precise conduct, reference being made to the racist crime committed by the novel ’ s protagonist, a young Front National member whose criminal act is said to have been inspired by the ideas advocated by Jean-Marie Le Pen. It is of no consequence that the crime of ‘ Ronald Blistier ’ is not real, because the author ’ s intention is not to write a satire about an impossible event but, on the contrary, to make the reader believe that, given Jean-Marie Le Pen ’ s ideology, such a scenario is quite plausible and that he would be accountable for it. The story also evokes – inevitably, for the reader – the trial in June 1998 of the Front National billstickers accused of killing a Comorian youth, Ibrahim Ali, in Marseilles. Similarly, when the author, a few passages further on, recounts the killing of a black youth called ‘ Julien Thoris ’, who is thrown into the Seine during a demonstration at which the Front National is present, the reader is bound to recall the real murder of Brahim Bouaram, whose killers were taking part in a march held by that party. The precision of the facts described in the offending extract is thus sufficient to constitute defamation against the civil parties, and the facts thus alluded to were susceptible of proof. Second passage, page 28: The assertion that ‘ all his mates from the Front National were bragging about their weekly clean-up rounds on the housing estates ’ is not clarified by other remarks or illustrated by any given facts. It may stem from the boastfulness attributed to the character in the novel and is too vague to justify prosecution. Third passage, page 86: The Front National is accused of using violence against those who leave the party. The author has one of his characters warn Ronald Blistier ’ s lawyer against ‘ the Front National ’ s common strategy ’ of ‘ battering ’ anyone who leaves it ( ‘ to beat you up ... ten against one, with metal bars, truncheons and steel-capped boots, one night as you ’ re leaving the house ’ ). This extract, which concerns facts that are precise and susceptible of proof, namely the attacking or even killing of anyone who dares to betray and leave the party, damages the honour of the Front National. Fourth passage, pages 105-06: To accuse Jean-Marie Le Pen of making statements ‘ with racist overtones that are barely concealed at best ’ and to write that ‘ from behind each of his assertions looms the spectre of the worst abominations of the history of mankind ’ constitutes defamation against him in that he is accused of a form of racism that reminds the reader of the worst atrocities ever perpetrated. The author moreover explains a few lines further on that Jean-Marie Le Pen can put the idea of a racist murder into simple minds like that of Ronald Blistier, who ‘ would not have had a gun in his hand and a North African kid at the end of it if Jean-Marie Le Pen had not made it possible ’ (p. 106). Fifth passage, page 118: This passage, which describes the young Front National militants firstly as being whipped up by their ‘ master ranter ’ and secondly as being armed by the hundreds and of creating an atmosphere of ‘ pre-insurrection ’, is certainly insulting to Jean-Marie Le Pen, but too imprecise to constitute defamation; the subsequent remarks do not concern the Front National but participants in that party ’ s demonstrations and cannot therefore be taken into account. Sixth passage, page 136: Jean-Marie Le Pen is accused of being a ‘ vampire ’ who thrives on ‘ the bitterness of his electorate ’ and ‘ the blood of his enemies ’, and of being a liar, defaming his opponents to protect himself from the accusations against him. The author develops this image and the term ‘ vampire ’ by writing, just after the offending passage: ‘ ... Jean-Marie Le Pen used Ronald Blistier ’ s life and is now using his death to stir up other Ronald Blistiers, to transform other lost youths into puppets who will have their lives and deaths manipulated by this ruthless puppeteer. ’ These allegations about using the life and death of young militants, in driving them to murder and suicide, for personal political ends, are precise and damage the honour and reputation of Jean-Marie Le Pen. As to the existence of good faith : Defamatory allegations are, in law, deemed to have been made with the intention of causing harm, but they can be justified if the writer shows that he was acting in good faith. The court observes in this connection that the author did not simply write a work of fiction. He portrayed to his readers Jean-Marie Le Pen, engaged in his usual activities as Chairman of the Front National, with the intention of criticising him and his party and of challenging their ideas. Mathieu Lindon indeed stated at the hearing that he had made much use of information in the news and, as a result, the reader may not be able to distinguish clearly between fact and fiction, so clear was the intention to associate the situations and remarks with recent events. Although, in the sphere of political polemics and ideological debate, the greatest freedom of expression must be afforded to the author, that freedom is not unrestricted, and stops when it comes to personal attacks, whether they are made directly by the author or through the intermediary of fictional characters, and is discredited by the distortion of facts and by immoderate language. Whereas the defence has asserted that this story reflects reality and does not twist it, the documents produced, which are mainly press articles, being devoid of evidentiary value, are insufficient to substantiate the defamatory allegations taken into account by the court concerning the criminal conduct imputed to the civil parties. No relevant judicial decision against them, which might have justified such assertions, was produced in the proceedings, and in the absence of documents the court can only find that Mathieu Lindon distorted the facts to reinforce the hostility of his readers towards Jean-Marie Le Pen and his party. Furthermore, whilst authors and polemicists are afforded freedom to use a specific register, this does not authorise the particularly excessive remarks that appear in the text. It cannot therefore be accepted that the defendants acted in good faith and the charge of defamation to the detriment of Jean-Marie Le Pen and the Front National is accordingly made out ... ” 3. The Paris Court of Appeal ’ s judgment of 13 September 2000 15. The first two applicants appealed against the above judgment in the Paris Court of Appeal. They challenged the finding that the offending extracts were defamatory in nature. They argued that it was simply a work of fiction portraying fictional characters, as the reader could see from the very first page. They also argued that the remarks merely amounted to value judgments about the claimants, reflecting a public debate, treated with distance and irony, about how best to combat the rise of the far right. In the alternative, pleading good faith, they submitted that the ideas of Mr Le Pen and the Front National had not been distorted by the book and its characters, and that the offending passages consisted exclusively of remarks made by the fictional characters without reflecting the ideas of the author, who, for his part, had sought to criticise the strategy adopted by anti-racist associations and left-wing intellectuals in general, in their fight against the Front National. The applicants relied on Article 10 of the Convention, claiming that this provision precluded any conviction because a work of fiction was entitled to reflect debate as to the moral responsibility borne by the Front National and its leader ’ s ideas in the commission of racist crimes. They emphasised that the freedom to hold opinions would be infringed if the author of a value judgment were to be penalised on the pretext that he could not prove the pertinence of his opinion, and referred in this connection to the Lingens v. Austria judgment ( 8 July 1986, Series A no. 103). Lastly, they argued that equally aggressive and defamatory remarks against the civil parties had been made in the past by politicians or journalists, and that Mr Le Pen himself had been convicted several times of incitement to racial hatred. 16. In a judgment of 13 September 2000, the Paris Court of Appeal ( Eleventh Division, consisting of Mr Charvet, President, Mr Blanc and Mr Deletang) upheld the judgment of 11 October 1999 as regards the defamatory nature of three out of the four passages taken into account by the Criminal Court, together with the fines imposed and the damages awarded by that court. 17. In its judgment the Court of Appeal considered, firstly, that the work in question was a “ novel ”, “ a ‘ creation of the imagination ’ as defined by the Petit Robert dictionary ”, whose story line was constructed around the dilemma facing the main character : “ The author has developed a plot, based on that framework, running from the beginning of the proceedings against the young defendant until his suicide in prison before counsel ’ s address and the prosecution speech, and has given expression to many characters who mainly appear as stereotypes characterised by their moral or political position in relation to the civil parties, who themselves are explicitly real people. ” It further observed that Mr Le Pen and the Front National, both appearing under their real and current identities, were constantly at the forefront not only of the debate conducted in open court but also of the exchanges between the various characters, “ and even at the heart of the intimate contradictions facing the main protagonist ”. The court then noted that, on a number of occasions, words had been put into the mouth of Mr Le Pen, who “ express[ed] views that [ were ] close or identical to those [that he took] in reality, but which [had not been] regarded by the civil parties as impugning his honour and reputation or those of the party of which he [was] the leader ”. It further considered that the subject of the book was the question set out on the back cover, “ How can Jean-Marie Le Pen be fought effectively? ”, adding that “ to ask that question, even in a novel, [was] not per se defamatory against him ”. 18. The court went on to point out that section 29 of the Act of 29 July 1881 defined defamation as “ any statement or allegation of a fact that impugns the honour or reputation of [a] person ” and that the law made no distinction based on the nature of the writing in issue. On that basis, any writing, whether political, philosophical, novelistic or even poetical, was governed by the applicable rules in such matters, with regard both to public order and to the protection of individuals. However, the court added that “ the application of the rules on defamation in respect of a press article or other text directly expressing the view of its author requires, if the text is a work of fiction, an examination of the question whether the civil parties are actually the individuals concerned by the offending remarks, and then of the meaning attributed by the author to the words of his characters in the light of the ideas that he expounds in reality in his work ”. As to the second point – the first being manifestly established – the court found as follows: “ ... a distinction has to be made between the offending passages on pages 10, 86, 105, and, lastly, 136, the only extracts now to be taken into account: some of them express the view of the narrator and coincide with the author ’ s ideas as they emerge from the work as a whole, whilst others can be attributed only to the character making the remarks in question, in so far as the author genuinely distances himself from those remarks throughout the work, either through the narrator or by other means. ” Using that method the court ruled as follows on the four passages in question : “ 1. Page 10: ‘ ... an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn ’ t the Chairman of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too ’ [this view is attributed by the author to anti-racist demonstrators who have gathered outside the law courts]. This segment of text is preceded by another, which has not been mentioned by the civil parties: ‘ For them, it ’ s not sufficient to call Ronald Blistier the murderer ’, following the narrator ’ s description of the crowd of ‘ anti - racists ’ which assembles in front of the law courts during the trial of Ronald Blistier. To assert that Jean-Marie Le Pen is not the Chairman of a political party but the chief of a gang of killers, and then in addition to equate him with Al Capone, is clearly defamatory, as was quite rightly observed by the court below. There is nothing in the preceding or following sentences to suggest that any distance has been taken by the narrator – and therefore, in view of the book ’ s literary construction, by the author himself – from this statement, which is attributed to the demonstrators gathered outside the law courts, and which, moreover, echoes the question presented on the back cover as the subject of the book: ‘ How can Jean-Marie Le Pen be fought effectively? ’ This extract accordingly constitutes defamation against the civil parties. 2. Page 86: ‘ He (Blistier [the accused]) wants to frighten you, Pierrot [the lawyer]. He wants to brand you as a member of his clan: that ’ s a common Front National strategy, to make you look like a traitor if you later make the slightest criticism of Le Pen or his followers, and so they ’ ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots, one night as you ’ re leaving the house, and give you a clear message that those who join the team stick together for life. Nobody leaves the Front National with impunity. Please don ’ t try and be clever, Pierrot. I don ’ t want them to kill you. ’ These words are spoken by the boyfriend of the lawyer, Mr Mine, the main protagonist. The speaker is giving his own explanation about the defendant ’ s attitude towards his counsel during the hearing, in response to a question from Mine. This passage contains comments that are specific to the fictional character, albeit derogatory with regard to the civil parties, as observed by the court below. Nevertheless, and contrary to the assessment of the lower court, they do not appear to be susceptible of proof within the meaning of the Act of 29 July 1881: being attributed to a fictional character, in a situation which is itself fictional, the text does not suggest that they may necessarily be regarded as corresponding to the author ’ s opinion. This passage is not found to be defamatory. 3. Pages 105 - 06: ‘ Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt ’ [here the lawyer is addressing the court]. It is clearly defamatory to accuse Jean-Marie Le Pen of ‘ proffering words or assertions with racist overtones that are barely concealed at best and from behind which looms the spectre of the worst abominations of the history of mankind ’. Such an accusation is susceptible of debate as to whether or not it holds true in relation to the actual discourse of Jean-Marie Le Pen and the Front National. The defendants cannot legitimately claim impunity for such remarks on the grounds that they derive from novelistic fiction and at the same time that they are covered by the statutory impunity concerning statements made during a judicial hearing. The allegation by the character Mr Mine, the lawyer, that ‘ what Ronald Blistier did was precisely what Jean-Marie Le Pen advocates ’, following the narrator ’ s comment – just before the paragraph containing the passage in question – that ‘ once again, everyone agrees that this trial should be that of Jean-Marie Le Pen rather than that of Ronald Blistier, otherwise it would never have had such an impact ’, shows that through the remarks attributed to his main protagonist it is in fact Mathieu Lindon who is expressing himself here with reference to the civil parties. This extract constitutes defamation against the civil parties. 4. Page 136: After the defendant ’ s suicide in prison, his lawyer gives the following statement on television: ‘ How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier ’ s suicide? Isn ’ t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse democrats of the alleged murder of Ronald Blistier? Because he isn ’ t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he ’ s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself. ’ To describe Jean-Marie Le Pen, Chairman of the Front National, as ‘ a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies ’, impugns the honour and reputation of the two civil parties. This passage is part of a long television appearance by the main protagonist – the only one who, apart from his boyfriend, is portrayed in a positive light in the novel, as both characters convey, so to speak, the contradictions and values of the narrator – following the defendant ’ s suicide in prison. It is evident that this speech, which takes the form of an indictment, and which is presented as the only interview given to the media by the lawyer, who has previously turned down many other requests, constitutes both the synthesis and the final conclusion through which the author seeks to give his character an opportunity to express, with a certain solemnity in the context of this fiction, the author ’ s own view as a militant writer. Moreover, in the last two pages of the book, following the television statement, no distance whatsoever is introduced between the narrator and the remarks made. This extract thus constitutes defamation against the civil parties. ” 19. The Court of Appeal further dismissed the argument that the applicants had acted in good faith, on the following grounds: “ Defamatory allegations are deemed to have been made in bad faith unless the defendant can show that they fulfil all of the following conditions: they must correspond to the pursuit of a legitimate aim; they must not reflect any personal animosity on his part towards the civil party; there must have been a serious preliminary investigation; and the language used must be dispassionate. In the present case, the legitimacy of the aim pursued by the defendants through the novel, namely ‘ to fight against Jean-Marie Le Pen effectively ’, in other words to engage in a political combat, cannot be challenged in a democratic society. With its claim to be a ‘ combative ’ work, the novel in question, and in particular the passages found to be defamatory, attest to patent animosity towards the civil parties. However, that animosity is explicitly related to the aversion felt by the defendants in reaction to the ideas and values presented for public debate by the civil party as Chairman of the Front National. That animosity, which is not directed against the civil party in person, cannot be regarded as reprehensible per se. Since this is a work of fiction, the question of the seriousness of the investigation underpinning the work cannot be assessed as if it were a text intended to inform the reader of real facts or comment on such facts. However, the principle adopted for the construction of the work in issue, as can be seen explicitly from a reading of the text and as the defendants have asserted before the court, is based on the juxtaposition within an imaginary plot of, on the one hand, various fictional characters, and on the other, the Chairman of the Front National, a real figure, who represents the focus in relation to which the imaginary characters take shape and around which they revolve throughout the novel. Furthermore, the ideas, rhetoric, acts and gestures of Jean-Marie Le Pen are accurately described in the novel – as the defendants have claimed, producing cogent evidence to that effect – in relation to the reality of the various public manifestations of his political activity. Accordingly, it is appropriate to examine whether the use of the defamatory comments chosen by the author was preceded by an investigation sufficiently serious to justify the comments in question. In this connection, whilst the rhetoric and ideas attributed to the civil parties, together with the ensuing debates, are unquestionably consonant with the actual representation of the ideas of the Front National in reports on French political life today, the defendants have failed to adduce any specific evidence to show that the use of the wording found to be defamatory was preceded by basic verification as to the reality supposed to be evoked by that wording. Similarly, it cannot be said that the form of expression used in the three extracts found to be defamatory is sufficiently dispassionate : to liken Jean-Marie Le Pen to the ‘ chief of a gang of killers ’ (page 10), to assert that the murder committed by Blistier – a fictional character – was ‘ advocated ’ by Jean-Marie Le Pen – a real person – and to describe the Chairman of the Front National – a real person – as a ‘ vampire who thrives on the bitterness of his electorate, but sometimes also on their blood ’, clearly oversteps the permissible limits in such matters. It cannot therefore be accepted that the defendants acted in good faith. Lastly, the argument derived from the application of Article 10 of the European Convention on Human Rights and the Lingens v. Austria judgment of 8 July 1986, whereby ‘ a value-judgment made about a politician is by nature not susceptible of proof ’ is ineffective. The allegations found in the present case to be defamatory, directed against a real politician, do not merely constitute value-judgments within the meaning of the judgment of the European Court of Human Rights cited above, in a case where a journalist had described the conduct of a politician as ‘ the basest opportunism ’, ‘ immoral ’ and ‘ undignified ’. In Mr Lindon ’ s case, he accuses the civil party of certain concrete practices (describing him as the ‘ chief of a gang of killers ’, ‘ advocating the perpetration of a murder ’ and ‘ a vampire who thrives on the bitterness and the blood of his voters ’ ). ” 4. The Court of Cassation ’ s judgment of 27 November 2001 20. In a judgment of 27 November 2001, the Court of Cassation dismissed an appeal on points of law lodged by the first two applicants. It rejected as follows the ground based on an alleged breach of Article 10 of the Convention: “ ... In finding the defendants guilty of public defamation against a private individual, taking into account three extracts from the work, the judges, who made an accurate assessment of the meaning and significance of the offending writings, justified their decision without breaching the Convention provisions referred to in the ground of appeal. Whilst Article 10 of the Convention ... recognises, in its first paragraph, that everyone has the right to freedom of expression, that provision states, in its second paragraph, that the exercise of this right, carrying with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation of others. ... ” B. The conviction of Mr July (application no. 36448/02) 1. The article published in the daily newspaper Libération 21. In its edition of 16 November 1999, in a column entitled “ Rebonds ” ( “ reactions ” ), the daily newspaper Libération published an article signed by ninety-seven contemporary writers concerning the first two applicants ’ conviction, on charges of defamation and complicity in defamation, by the Paris Criminal Court in its judgment of 11 October 1999 (see paragraph 1 4 above). The article took the form of a petition and read as follows: “ Petition. The passages from the book ‘ Jean-Marie Le Pen on Trial ’ for which Mathieu Lindon and his publisher were convicted are not defamatory. We are prepared to write them in a novel. We will write against Le Pen. Novels cannot be granted unlimited rights. But they have the right to exist and to evoke the real world in which the author and his peers live. Mathieu Lindon and his publisher Paul Otchakovsky-Laurens were convicted of defamation against Jean-Marie Le Pen on account of four passages in the novel ‘ Jean-Marie Le Pen on Trial ’. To write, in a novel, that demonstrators who pay tribute to the victim of a racist murder consider that: ‘ For them, it ’ s not sufficient to call Ronald Blistier the murderer; an effective way to fight Le Pen is to call for him to be put in the dock and show that he isn ’ t the Chairman of a political party but the chief of a gang of killers – after all, people would have voted for Al Capone too ’ is not defamatory in my view and I am prepared to write this in a novel. To write, in a novel, that the boyfriend of a lawyer defending a murderer who belongs to the Front National gives the lawyer this warning: ‘ He wants to frighten you, Pierrot. He wants to brand you as a member of his clan: that ’ s a common Front National strategy, to make you look like a traitor if you later make the slightest criticism of Le Pen or his followers, and so they ’ ll feel morally entitled to beat you up – to come after you, ten against one, with metal bars, truncheons and steel-capped boots, one night as you ’ re leaving the house, and give you a clear message that those who join the team stick together for life. Nobody leaves the Front National with impunity. Please don ’ t try and be clever, Pierrot. I don ’ t want them to kill you ’ is not defamatory in my view and I am prepared to write this in a novel. To write, in a novel, that a lawyer, in defending his client who is accused of a racist crime puts the following arguments to the court: ‘ Read the papers, listen to the radio and television, every statement by Jean-Marie Le Pen is bedecked – or rather bespotted and bespattered – with racist overtones that are barely concealed at best. Each of his words is a veil for others and from behind each of his assertions looms the spectre of the worst abominations of the history of mankind. Everyone knows it, everyone says it. What Ronald Blistier did was precisely what Jean-Marie Le Pen advocates. Perhaps not explicitly – he tries to abide by the law, even though he does not always manage to do so. But when you consider the situations in which he speaks, the innuendos he makes and the figures he supports, there can be no doubt ’ is not defamatory in my view and I am prepared to write this in a novel. To write, in a novel, that a lawyer who has poorly defended his client, a Front National member accused of a racist murder, makes the following analysis: ‘ How can Jean-Marie Le Pen be allowed to play the victim after Ronald Blistier ’ s suicide? Isn ’ t the Front National Chairman a vampire who thrives on the bitterness of his electorate, but sometimes also on their blood, like the blood of his enemies? Why does Le Pen accuse the democrats of the alleged murder of Ronald Blistier? Because he isn ’ t afraid of lies – because engaging in defamation against his opponents always appears useful for him, of course, but it is also quite simply a means to deflect suspicion; he ’ s the one who shouts the loudest in the hope that his ranting will drown out the accusations against himself ’ is not defamatory in my view and I am prepared to write this in a novel. If these passages are to be considered defamatory in a novel, they are also defamatory in reality. I should be sued by Jean-Marie Le Pen and convicted by a court, if they are true to their own logic, for having reproduced those extracts here. ” 2. The Paris Criminal Court ’ s judgment of 7 September 2000 22. It was on account of the above article that Mr Le Pen and his party summoned the third applicant to appear before the Paris Criminal Court in his capacity as publication director of Libération, alleging that he had committed the offence of public defamation against a private individual (under sections 29(1), 32(1) and 42 of the Freedom of the Press Act of 29 July 1881). 23. In a judgment of 7 September 2000, the court found the applicant guilty of the criminal offence of defamation and sentenced him to pay a fine of FRF 15,000 ( EUR 2,286.74 ). It also awarded FRF 25,000 (EUR 3,811.23) in damages. The court, after observing that Libération had reproduced in extenso passages from the work that it had characterised as defamatory in its judgment of 11 October 1999, found that “ the defamatory nature of the remarks, which ha [ d ] already been found to have impugned the honour and reputation of another and ha [ d ] been repeated in the offending article, [ was ] ... not in doubt ”. As to the question of good faith, the court found that, whilst the newspaper Libération was entitled to comment on a judicial decision and to impart ideas and information on questions that formed the subject of public debate, it was nevertheless true that there was “ a distinction between the right of petition and the publicity given to a petition by the use of objectionable terms ”. In the court ’ s view, the publication of the defamatory passages in abstracto, outside their literary context, strengthened the dishonouring force of the allegations, which were shifted to the terrain of reality and plausibility, without any debate of ideas, as the signatories of the article had emphasised in concluding: “ If these extracts are to be considered defamatory in a novel, they are also defamatory in reality. ” The court added that other newspapers had reported on the debate triggered by the publication of “ Jean-Marie Le Pen on Trial ” and the petition following the conviction of its author but had not reproduced the offending comments in extenso. It inferred that the third applicant “ could ... have reported on the offending petition and informed readers of the views of numerous writers and journalists, without, however, reiterating the offence of which Mr Lindon and his publisher had been convicted by reproducing the passages that had been found to be defamatory in the court ’ s previous decision ”. 3. The Paris Court of Appeal ’ s judgment of 21 March 2001 24. On 12 September 2000 the third applicant lodged an appeal against the judgment. He contended that the impugned article was part of a broader political debate concerning the Front National and its Chairman, and that the debate was intense because of events that had actually taken place. It was those events which had provided the inspiration for the novel by the first applicant, whose cause had been defended by the signatories of the petition, reacting in a democratic spirit and out of vigilance towards the far-right movement. The third applicant explained that the column “ Rebonds ” was specifically reserved for the opinions of commentators from outside the newspaper who expressed their views with the intention of triggering debate and provoking reactions among readers. He added that the column, in principle, was not supposed to be objective or impartial but to convey opinions and therefore entailed the freedom to hold those opinions. He argued that the free discussion of political matters should not be hindered by excessive requirements relating to the protection of the rights of others or the prevention of disorder. 25. In a judgment of 21 March 2001, the Eleventh Division of the Paris Court of Appeal (consisting of Mr Charvet, President, and Judges Deletang and Waechter) upheld all the provisions of the judgment under appeal. The court pointed out that, in its judgment of 13 September 2000 (see paragraphs 1 6 -1 9 above), it had upheld the conviction of the first two applicants on account of three out of the four offending passages in the novel. It reproduced those passages and, as regards the defamatory nature of the article, referred back to the grounds set out in the 13 September 2000 judgment, of which, it stated, the reasoning “ remain [ ed ] applicable ”. It went on to dismiss the defence of good faith on the following grounds : “ The existence of controversy surrounding Mr Le Pen and the Front National has been patent for many years, and that controversy has taken on a polemical aspect at certain times. As regards the work ‘ Jean-Marie Le Pen on Trial ’, the court found in its previous judgment that it was established that its very subject matter was the fight against the political ideas of the civil parties, which in this case had taken the form of a novel. Such a medium does not preclude the application of the Act of 29 July 1881 where, firstly, the characters portrayed can be identified as real people, and, secondly, the defamatory allegations against them are a reflection not of the narrative process but of the author ’ s own views. On the basis of that analysis, the court considered that this situation obtained in respect of the novel itself. It is all the more true for the impugned article, which is presented as a shift from fiction in two ways, being published even though the passages in question had formed the basis of a conviction and by clearly indicating that shift: ‘ If these passages are to be considered defamatory in a novel, they are also defamatory in reality. We will write against Le Pen. ’ The authors of the text in issue had no other aim than that of showing their support for Mathieu Lindon by repeating with approval, out of defiance, all the passages that had been found defamatory by the court, and without even really calling into question the defamatory nature of the remarks. The polemical aim of a text cannot absolve it from all regulation of expression, especially when, far from being based merely on an academic debate, its line of argument is built around reference to precise facts. There was therefore an obligation to carry out a meaningful investigation before making particularly serious accusations such as incitement to commit murder, and to avoid offensive expressions such as those describing Mr Le Pen as the ‘ chief of a gang of killers ’ or as a vampire. The defence of good faith cannot be admitted ... ” 4. The Court of Cassation ’ s judgment of 3 April 2002 26. On 23 March 2001 the third applicant appealed on points of law, claiming in particular that there had been a violation of Articles 10 and 6 of the Convention. In respect of Article 6 he contended that the Court of Appeal had already ruled on the defamatory nature of the book in question and that it had relied on that earlier judgment, so that the appeal had not been heard by an impartial tribunal but by a “ court which openly regarded itself as clearly targeted by the offending article ”. 27. In a judgment of 3 April 2002, the Court of Cassation dismissed the appeal in the following terms: “ ... It is apparent from the decision appealed against that Serge July, publication director, was summoned to appear before the Eleventh Division of the Court of Appeal on a charge of public defamation against a private individual, on account of having published an article. That article incorporated certain passages from a book for which the author had previously been found guilty under section 29 of the Act of 29 July 1881 by a bench of the Court of Appeal consisting of President Charvet and Judges Blanc and Deletang. The appellant is not entitled to complain that Judges Charvet and Deletang sat on the bench of the appellate court before which he appeared, in so far as the participation in this case of a number of judges of the criminal division of the Court of Appeal in proceedings concerning charges brought, firstly, against the author of a defamatory text and, secondly, against the publication director who allowed certain passages from that text to be published, is not contrary to the requirement of impartiality enshrined in Article 6 § 1 of the Convention. In addition, contrary to what has been alleged, there is nothing in the judgment appealed against to suggest that the judges deemed themselves to be targeted by the offending text or that they expressed an opinion contrary to the requirement of impartiality. ... In finding Serge July guilty ... the Court of Appeal stated that the polemical aim of a text could not absolve it from all regulation of expression, when, far from being based merely on an academic debate, its line of argument was built around reference to precise facts. The court added that, in this case, the accusations that had been made without a meaningful prior investigation were particularly serious ones, the civil party having been described as the ‘ chief of a gang of killers ’ or as a vampire. In these circumstances the Court of Appeal justified its decision without breaching Article 10 of the Convention ... ” | This case concerned the criminal conviction of the author and publisher of a novel, the first two applicants, for defamation against a political party of the far right and its chairman, together with the conviction for defamation of the third applicant, the director of a prominent national daily newspaper, which had published a petition reproducing the offending passages of the novel and protesting about the convictions of the author and publisher. The book had openly raised the issue of the responsibility of the party and its chairman in the development of racism in France and the difficulty of combating this scourge. The applicants argued that their criminal conviction had entailed a violation of their freedom of expression. |
48 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and lives in Zurich. 6. The applicant is a Polish national. He married M.S. , another Polish national, in 1994. Shortly afterwards they moved to Switzerland where the applicant works as a software specialist. In 1998 their son P. was born and in 2002 their daughter J. 7. In autumn 2007 the applicant began an affair with H. 8. In February 2008 the applicant and M.S. decided to separate and he moved to another flat. However, the applicant ’ s flat was located opposite the flat of his family and he kept regular contacts with his children. A. Divorce proceedings 9. On 24 September 2008 M.S. filed a petition for divorce with the Kraków Regional Court. M.S. applied for an interim order granting her temporary custody over P. and J. for the duration of the divorce proceedings. She had also informed the court that she would be in Kraków between 4 and 28 October 2008. 10. On 4 October 2008 M.S. took the children to Poland for school holidays. She promised to return on 20 October 2008. The applicant was informed about the trip and consented to the travelling dates. 11. On 15 October 2008 the Regional Court granted the request of M. S. for an interim custody order. The applicant was neither informed of nor summoned to the court session concerning this order. 12. Subsequently, on 24 October 2008 the applicant lodged a request for return of his children under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) (see paragraphs 20-30 below). 13. On 12 November 2008 the applicant requested the Kraków Regional Court to stay the execution of the interim custody order of 15 October 2008. He also appealed against that order. 14. On 11 December 2008 the Kraków Regional Court dismissed the applicant ’ s request for stay of the execution of the interim order and instead stayed the divorce proceedings. The court referred to the pending proceedings under the Hague Convention (see below). The applicant ’ s appeal against this decision and against the interim custody order was dismissed by the Kraków Court of Appeal on 26 February 2009. 15. On 3 March 2010 the Kraków Regional Court gave an interim order and determined the applicant ’ s contacts with P. and J. for the duration of the divorce proceedings. 16. On 6 May 2011 the Kraków Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno-Konsultacyjny ) submitted an expert report to the Kraków Regional Court. According to the report, M.S. should continue to exercise custody of the children as she had always been more involved in their upbringing. Moreover, the experts considered that another separation from a parent and another change of environment would be detrimental to the children. They further noted that the applicant should be allowed to have contacts with his children outside the territory of Poland as long as there was no risk of destabilisation of their situation. He should have the right to spend with them half of summer vacation, holidays and weekends and to visit them 1-2 times a month. 17. On 24 July 2012 the Kraków Regional Court dissolved the applicant ’ s marriage. It found that the applicant had been at fault in the breakdown of the marital relationship. It further held that full parental authority was to be exercised by M.S., whereas the parental rights of the applicant were limited to decisions regarding the children ’ s upbringing, health and education. He was authorised to have contacts with P. and J. two afternoons per week and two weekends per month. He was further ordered to pay child maintenance and alimony. 18. The applicant appealed. He argued, in particular, that, due to the fact that he resided in Switzerland, his visiting rights during holidays and summer vacation should have been regulated by the court. 19. On 15 March 2013 the Kraków Court of Appeal dismissed the applicant ’ s appeal and upheld the first instance ’ s judgment. B. Proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 20. On 24 October 2008 the applicant lodged with the Swiss Central Authority a request concerning the return of the children to Switzerland under the Hague Convention. It was transmitted to the Administrative Division of the Kraków Regional Court on 25 November 2008. 21. Subsequently, in a letter of 13 March 2009 the Swiss Central Authority confirmed that the applicant and M.S. had exercised joint custody over P. and J. The authority expressed the view that since the Swiss authorities had not been aware of any decision of Swiss courts or authorities limiting the applicant ’ s custody rights, the fact that the children stayed in Poland after 20 October 2008 without their father ’ s consent constituted a wrongful removal under Article 3 of the Hague Convention. 22. Meanwhile in Kraków, on 9 December 2008 a local assessment ( wywiad środowiskowy ) was conducted at the home of M. S. by a court ‑ appointed guardian with a view to establishing the children ’ s situation. The report confirmed that the children ’ s living conditions with their mother were very good and that they continued their education in private schools. 23. On 17 December 2008 the Kraków District Court held the first hearing in the proceedings under the Hague Convention. The court also gave an interim order and allowed the applicant to visit the children on that day in the afternoon. 24. On 5 January 2009 the court requested a psychologist to prepare a report concerning the children ’ s mental and emotional maturity and their capacity to express views on the matter of their return to Switzerland. 25. On 9 January 2009 another hearing took place. 26. On 21 January 2009 the expert submitted his report to the court. 27. On 27 January 2009 the District Court allowed the applicant another exceptional contact with his children. They were to stay with him from 30 January until 1 February 2009. However, the applicant was not allowed to leave Poland with the children. 28. On 11 February 2009 the Kraków District Court gave a decision and refused to grant the applicant ’ s request for the children ’ s return to Switzerland. The court referred to the applicant ’ s and M.S. ’ s consistent testimonies and the information included in the divorce file. The court established that on 4 October 2008 M.S. had come to Poland together with P. and J. and the applicant had consented to this trip. On 20 October 2008 M.S. had not returned to Switzerland and stayed in Poland together with the children. The applicant had not accepted this decision. The court subsequently stressed that in the proceedings under the Hague Convention it should be firstly established whether wrongful removal or retention took place. It further held that in the case at issue there had been no wrongful removal since the applicant had agreed to P and J ’ s trip to Poland on the 4 October 2008. With reference to the fact that M.S. failed to return on 20 October 2008 (the date agreed with the applicant), the court noted that she had been granted temporary custody over her children for the duration of the divorce proceedings. When the interim order was delivered, that is between 4 and 20 October 2008, the children remained in Poland with their father ’ s consent. Consequently, M.S. could have decided to stay in Poland also after 20 October 2008 and there had been no wrongful retention in the case. The court also considered that the interim custody order was not contrary to Article 16 of the Hague Convention, since the applicant ’ s request for return of his children had been received by the Kraków Regional Court only on 25 November 2008 while the custody order had been delivered on 15 October 2008. Lastly, the court held that the refusal to grant the request for return was not contrary to Article 17 of the Hague Convention, since that provision concerned custody decisions delivered after the removal of a child. 29. On 24 March 2009 the applicant lodged an appeal against the first ‑ instance decision. He argued that the contested decision was in breach of Article 3 of the Hague Convention. He further argued that Article 17 of that Convention was also breached as the first-instance court had relied on a decision which was merely of a temporary character, whereas this provision expressly prohibited to refuse an application for return on the basis that a decision on custody was given in the country to which children were abducted. 30. On 2 June 2009 the Kraków Regional Court dismissed the applicant ’ s appeal. The court first refused to accept as evidence the document from the Swiss Central Authority since that document failed to refer to the interim custody order of 15 October 2008. It its decision, the Kraków Regional Court referred in particular to the events leading to the breakdown of the applicant ’ s marriage. It also noted that when M.S. had discovered that the applicant ’ s new partner had been pregnant, she had decided to institute divorce proceedings. However, she had been informed by a Swiss lawyer that in view of the applicant ’ s lack of consent to a divorce, she could only have filed a petition in Switzerland after two years of separation. For these reasons she had decided to file a petition for divorce with the Polish courts. The court further noted that on 4 October 2008 M.S. had arrived in Kraków with her children in order to spend two weeks of school holidays there, after having obtained the applicant ’ s consent for their trip. The court further stressed that M.S. decided to stay in Poland permanently only when she was granted temporary custody. Consequently, in the court ’ s opinion the removal of the children was not a wrongful removal within the meaning of Article 3 of the Hague Convention. The decision was served on the applicant on 28 July 2009. It is final. | The applicant, whose children were retained in Poland by their mother, argued that the Polish courts had failed to correctly apply the Hague Convention of 25 October 1980 when deciding on his request for the return of his children to Switzerland. Notably, the courts, basing their decision on the custody decision issued in the divorce proceedings in Poland, had allegedly failed to take into account the fact that he had never given his agreement to their permanent stay in Poland and that the children’s habitual place of residence at that time had been in Switzerland. |
Subsets and Splits