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848 | null | 2. The applicant was born in 1969 and lives in Bratislava. He was represented by Škubla & Partneri s.r.o., a law firm with its registered office in Bratislava. 3. The Government were represented by their Agents, Ms M. Pirošíková, who was succeeded by Ms M. Bálintová. 4. The facts of the case may be summarised as follows. BACKGROUND 5. The applicant is a prominent businessman associated with an influential finance group. He is the business partner of the applicant in the case of Zoltán Varga, (cited above), mentioned in paragraphs 6, 66-7, 85 and 159 of the above-cited judgment. Surveillance and its products 6. It is undisputed that the applicant was affected by the implementation by the SIS of two surveillance warrants issued by the Bratislava Regional Court (“BRC”) on 23 November 2005 and 18 May 2006. The former was aimed at monitoring Mr Varga and meetings taking place in a flat that belonged to him. It can be understood that, in addition to Mr Varga, the latter warrant was concerned with monitoring another person. The applicant submitted that he had reasons to believe that that other person was him. 7. The warrants were implemented by way of the flat being subjected to audio surveillance. This resulted in primary (audio recording or the transcription thereof) and derivative material (summaries and analytical notes). This material was or has been kept by the SIS as follows. 8. It was taken by the domestic authorities as established that the SIS had destroyed the primary material on 2 April 2008, the reason being that it had contained nothing that could serve the operation’s purpose. 9. The derivative material is archived by the SIS in the manner specified in section 17(6) of the SIS Act (Law no 46/1993 Coll., as amended) – that is to say “in a way that excluded access to it by anyone except a court”. The rules for the retention of such material are provided in an internal regulation issued by the SIS Director under section 17(8) of the SIS Act. 10. In addition, some further material based on or linked to the two warrants (namely SIS’s applications for the warrants and an SIS report on the implementation of the first of them and an application for the early discontinuance of the second one) was kept within the control of the BRC. The BRC files concerning these warrants, including the further material mentioned, were destroyed on 13 April 2016 and 8 March 2017, as the prescribed archiving term had expired. 11. Meanwhile, on 20 November 2012, the Constitutional Court decided on the merits of an individual complaint lodged by Mr Varga. It quashed the warrant of 23 November 2005 in its entirety and that of 18 May 2006 “in so far as it concerned Mr Varga”. It found that the warrants were unjustified and unlawful as they lacked several fundamental elements and that, accordingly, by issuing them the BRC had violated several of Mr Varga’s fundamental rights. A similar complaint lodged by the applicant was rejected on 14 March 2012 as belated. Written and audio material linked to the Gorilla operation 12. In December 2011 some written text was anonymously posted on the Internet. Indicating that it was the result of the implementation of the two warrants, this text could be defined as a descriptive analytical summary, purportedly produced by the SIS, of what had occurred at the flat. There had purportedly been meetings between the applicant and other persons at which had been discussed and coordinated – among other nefarious matters – massive corruption within the context of the privatisation of strategic State-owned enterprises. By the applicant’s count the material mentioned his name more than 800 times. 13. In the course of a home search conducted in 2018 in an unrelated criminal investigation (into the murder of a journalist), a portable data storage device was seized which contained a digital audio track that appeared to be the audio recording on which the text mentioned in the preceding paragraph was based. 14. After it had been established that the content of this device had no link to the investigation in question, it was forwarded to the investigation that had meanwhile been opened into suspicions of corruption, as revealed by the material posted on the Internet (“the Gorilla investigation” – for details see paragraphs 20 and 43 et seq. below). It appears that copies of the recording are being used in other criminal investigations as well. 15. In December 2018 the fact that the above-mentioned seizure had taken place was reported by the media. In October 2019 a digital audio track was anonymously forwarded to the media and posted on the Internet. It purported to be the audio recording on the basis of which the text mentioned in paragraph 12 above had been compiled. 16. The authenticity of the text and of the audio recording, which was publicly accessible on the Internet, has not been officially confirmed. They are, however, commonly referred to as having a connection to operation Gorilla. 17. The Prosecutor General and the Office of Special Prosecutions ( Úrad Špeciálnej prokuratúry – “the OSP”), which is the body supervising the Gorilla and other related investigations, have recently issued a decision and a statement (for details, see paragraphs 56 et seq. below), which may be read as indicating that there were grounds to believe that the audio recording retrieved in the home search in 2018 was in fact the recording made by the SIS in the course of the Gorilla operation. Investigations 18. In connection with the above-mentioned matters, three main lines of inquiry were pursued by the authorities. 19. Firstly, an investigation was carried out into whether the SIS had failed to transmit the outcome of the operation to the prosecuting authorities and whether its agents had abused their authority by using that outcome for the purposes of extortion. In a similar matter, charges were brought against the applicant but then withdrawn (see paragraphs 55 and 56 below). As a complement to those investigations, an inquiry was carried out into suspected abuse of official powers in connection with the SIS’s applications for the warrants in question and the issuance of those warrants by the BRC. The status of these investigations is not entirely certain, but there is no indication that anyone is presently facing any charges. 20. Secondly, “the Gorilla investigation” was opened against one or more persons unknown into suspected corruption, as revealed by the material posted on the Internet. It is ongoing and no one is currently charged with any offence. More details of the investigation and any links that it has to the applicant are indicated in paragraphs 43 et seq. below. 21. Thirdly, an investigation was carried out into a suspicion that the Minister of the Interior committed slander when making his statements about the matter in press conferences (see paragraph 45 below). The information available suggests that the investigation was terminated on 18 December 2017 with no one having been charged. THE APPLICANT’S RESPONSE TO THE GORILLA OPERATION AND MATERIAL, HIS LINKS AND RESPONSE TO THE GORILLA INVESTIGATION AND THE CHARGES AGAINST HIM 22. Following the constitutional judgment obtained by Mr Varga (see paragraph 11 above and paragraphs 31 et seq. of the Zoltán Varga judgment), and relying on that judgment, the applicant pursued several lines of response, as described below. Response to the Gorilla operation and materialVarious requests, complaints and actions Various requests, complaints and actions Various requests, complaints and actions 23. The applicant addressed a number of requests to the SIS, mainly seeking that any material originating from the operation be completely destroyed. His subsequent complaint that the SIS had refused those requests was handled successively by the Office of the Government and the Secretariat of Parliament. 24. In a letter of 29 November 2013 the Office of the Government informed the applicant, inter alia, that it had no authority to deal with his complaint. Although it was true that the director of the SIS was answerable to the Security Council of the Slovak Republic, there was no organ hierarchically superior to the SIS. Nevertheless, the applicant’s complaint had been forwarded to a special parliamentary committee for the supervision of SIS activities. 25. In a letter of 13 February 2014 the Secretariat of Parliament, for its part, acknowledged receipt of the applicant’s complaint, which the Office of the Government had forwarded to it. It went on to say that as the applicant had meanwhile been asserting his rights before the administrative-law judiciary (see below), his complaint was considered to have become moot. 26. Unsatisfied with the outcome, the applicant further pursued his claims before the Constitutional Court by way of a complaint lodged on 26 August 2013. 27. In addition to the requests mentioned above, he also requested access to an SIS internal regulation issued under section 17(8) of the SIS Act (see paragraph 9 above). Under that legislation, the SIS director was to issue a regulation governing the type of records to be kept by the service, the way in which they were to be kept, and the procedures for gaining access to them. The SIS acknowledged the existence of such a regulation but refused to grant access to it on the grounds that it was classified. The applicant challenged that response by bringing an administrative-law action. On 31 October 2014 the BRC dismissed that action. That decision was upheld by the courts, the final decision being given by the Constitutional Court on 15 February 2018. It noted that legal rules governing the area of State security were based on trust in the intelligence held by the SIS and on supervision that was mainly political in nature. By implication, any element of judicial supervision in relation to matters such as what material fulfilled the statutory requirements for being classified was limited. 28. Moreover, the applicant requested that the Prosecutor General step in with a view to reviewing the lawfulness of the treatment of the material derived from the Gorilla operation. In response, in a letter of 6 September 2013 the Prosecutor General confirmed his previous position to the effect that the Public Prosecution Service (“the PPS”) had no authority to examine whether the SIS had breached the law by allegedly failing to destroy material resulting from the implementation of the warrants in question. 29. Furthermore, the applicant brought two administrative-law actions, complaining that the SIS had interfered with his rights by, respectively, its actions and its failure to take action in respect of the continued existence of material resulting from the implementation of the warrants in question. On 29 October 2013 and 29 January 2014 the Supreme Court declared those actions inadmissible on the grounds that although the SIS was a State authority, it was not a public administration body. Accordingly, its actions and omissions did not fall within the jurisdiction of the administrative-law courts. The applicant challenged those decisions before the Constitutional Court by lodging complaints on 23 December 2013 and 17 April 2014. 30. In addition, the applicant made several applications to the BRC and the Ministry of Justice seeking to press the BRC to exercise what he considered to be a part of its supervisory duty in relation to the implementation of the warrants in question. In particular, he considered that it was up to the BRC to follow up on the Constitutional Court’s judgment in respect of Mr Varga (see paragraph 11 above) by ensuring that the SIS destroy any material based on the operation. As he was not satisfied with the outcome of those applications, the applicant continued pursuing his rights by way of a separate constitutional complaint lodged on 28 April 2015. Following the Constitutional Court’s decision in respect of that complaint (see the following paragraphs), on 23 March 2016 the applicant again unsuccessfully applied to the BRC. Constitutional Court’s decision 31. The applicant’s constitutional complaints of 26 August and 23 December 2013, 17 April 2014 and 28 April 2015 (see paragraphs 26, 29 and 30 above) were joined into a single set of proceedings together with similar complaints pursued by Mr Varga. The admissibility of all those complaints was determined in a decision of 6 October 2015. 32. As for the applicant’s complaints in relation to the SIS, the Constitutional Court noted that similar complaints had already been examined and declared inadmissible by a decision of 14 March 2012 (see paragraph 11 above). Their examination was accordingly precluded by the principle of res judicata. 33. However, on the basis of essentially the same complaints that had been advanced by Mr Varga, the Constitutional Court referred to the conclusions reached in its decision on the admissibility of Mr Varga’s previous constitutional complaint to the effect that it had no jurisdiction in relation to supervising the implementation of surveillance warrants by the SIS and that Mr Varga had failed to exhaust the available ordinary remedies in that respect. 34. As for the remaining complaints, the Constitutional Court noted that, in the applicant’s own submission, the underlying fundamental motive of all his complaints was to achieve the destruction of the material resulting from the implementation of the contested warrants that fell within the control of the SIS. In that respect, the Constitutional Court acknowledged that when surveillance warrants were annulled, any recordings made under them had to be destroyed as a matter of responsibility of the issuing court and the SIS. 35. However, as noted by the SIS in its observations in reply to the applicant’s constitutional complaints, and as certified by minutes dated 2 April 2008 that the SIS had submitted in support of those observations, the SIS had itself destroyed the recordings resulting from the implementation of the two warrants. 36. As regards the “data extracted from the recordings”, the Constitutional Court observed that the statute did not provide that such data should be destroyed. Such material had to be deposited by the SIS in the way specified in section 17(6) of the SIS Act. It was inadmissible to use it for any official purpose and it could not acquire any lawful status and be used as evidence in any proceedings before public authorities in the future. 37. The remainder of the applicant’s constitutional complaints had thus become moot and was accordingly manifestly ill-founded. The action in the civil courts 38. Assuming that he had been the other target of the warrant of 2006, and being affected by the implementation of both warrants, the applicant brought an action in the ordinary courts. Relying on the State Liability Act (Law no. 514/2003 Coll., as amended – “the SL Act”) and the legal rules concerning the protection of personal integrity, he sought orders requiring the SIS to refrain from making any use of, and to destroy, any material resulting from the implementation of those warrants. 39. The action is being examined in two separate sets of proceedings, separated according to how the applicant formally identified the defendant. 40. To the extent that the defendant was identified as being the SIS itself, the proceedings were terminated by the Bratislava I District Court (21 September 2017) on the grounds that the ordinary courts had no power to issue orders to it as to a State organ acting in an area entrusted to it by law. However, following an appeal lodged by the applicant, this decision was quashed by the Bratislava Regional Court (20 November 2019) owing to errors of law and the matter was remitted to the first-instance court. On 20 November 2020 the District Court stayed the proceedings pending the outcome of an appeal on points of law by the defendant in a similar action by Mr Varga. 41. To the extent that the applicant identified the defendant as being the State (in the person of the SIS), the action was dismissed by the District Court (7 July 2017) and, following an appeal lodged by the applicant, that decision was partly upheld and partly quashed by the Regional Court (29 September 2020). In particular, the court of appeal held that, when acting in an official capacity, the State fell outside the private ‑ law rules on protection of personal integrity. Nevertheless, as a matter of principle, in that capacity it had standing to be sued under the SL Act. The court’s jurisdiction under that legislation was limited to determining compensation. In so far as the applicant might be understood as essentially bringing any claims of that nature, they were remitted to the court of first instance for re-examination. In so far as the applicant had been seeking that the SIS be ordered to act or refrain from acting in a certain way, the SL Act provided no basis for issuing such orders, and the dismissal of such claims was to be upheld. 42. The applicant challenged the judgment of 29 September 2020 by way of an appeal on points of law, and the matter is ongoing. The applicant’s links and response to the Gorilla investigation 43. Since the opening of the investigation on 9 January 2012, the applicant was questioned as a witness on several occasions but he has never been charged. Nevertheless, he argues that the investigation concentrates on him and on the companies within the group associated with him, making him one of the key suspects. 44. In the course of the investigation, depositions were taken from numerous other witnesses and information was sought from a great number of persons and institutions within and outside Slovakia. The investigation targets numerous business and other transactions with complex contractual and corporate backgrounds. 45. The Minister of the Interior informed the public about the Gorilla investigation and associated matters in press conferences, through the media and by other means, indicating that the Gorilla operation by the SIS had taken place, that the information published on the Internet was being verified and that some of it was proving to have a truthful basis. In particular, in press conferences held on 9 January and 5 March 2012 he announced (i) his decision to set up a special investigative team to be in charge of that investigation and (ii) his intention to challenge a decision on the privatisation of an important industrial enterprise in the light of the information gleaned from that investigation. He stated, inter alia, that what was at issue in the investigation was a serious crime committed by an organised group, which included certain finance groups. The applicant was not referred to by name but considers that references to the person responsible for the crime in question were made in such a way that enabled him to be identified. 46. In addition, on 12 September 2012 and 7 February 2013 the minister reported on the progress of the investigation in Parliament. 47. The head of the investigative team repeatedly informed the public through the media about the progress of the investigation, expressing the view that the information on the Internet was proving to be accurate. 48. In a letter of 3 February 2015, the OSP reprimanded the head of the investigative team for a lack of professionalism in his communication with the media and reserved the exclusive right to inform the public about such matters. 49. On 15 June 2015 Parliament convened for an extraordinary session to hear a report which it had invited the supervising prosecutor to deliver on the progress of the investigation. The latter declined to provide such a report on the grounds that, in his view, Parliament had no power to enquire into ongoing investigations. 50. On 19 August 2015 the applicant lodged a complaint with the Constitutional Court, arguing that the parliamentary debate and its conclusion on 15 June 2015 had violated his right to be presumed innocent. The Constitutional Court rejected the complaint as inadmissible on 11 February 2016. It noted that one of the key functions of a parliament was to debate fundamental societal issues, and that although it was true that the applicant had been mentioned in the parliamentary debate, in relation to the topic of that debate he had had the position of a public figure. However, neither the debate nor its conclusion, which had in no way targeted the applicant, had been of such a nature and gravity as to constitute an interference with his rights. 51. Meanwhile, on 1 October 2015, the applicant lodged a further complaint with the Constitutional Court, alleging, inter alia, that his right to a hearing within a reasonable time had been violated in the Gorilla investigation, as it had been too lengthy. Although no formal charges had been brought against him, the investigation had substantially affected him, so he had to be regarded as being charged with a criminal offence in substance. In his view, the investigation had been conducted in an arbitrary fashion and should be promptly discontinued. 52. On 17 February 2016 the Constitutional Court declared the complaint inadmissible. It noted that the applicant had not been charged, and neither was he otherwise directly concerned by the investigation, other than having been questioned as a witness who had the right to refuse to give evidence. Accordingly, the conditions for considering him in substance to be a person charged with an offence in terms of the Court’s case-law had not been fulfilled. He therefore had no standing to challenge that investigation before the Constitutional Court. Moreover, in so far as the applicant had been seeking to base his claims on various public statements about the investigation, the Constitutional Court endorsed a view previously taken by the OSP to the effect that it was open to the applicant to seek to protect his rights by way of bringing an action for the protection of his personal integrity. 53. Following the forwarding to the Gorilla investigation of the data storage device found in the 2018 home search (containing the audio track apparently linked to the Gorilla operation), investigative measures have been taken with a view to verifying to what extent the audio recording and the text posted anonymously on the Internet (see paragraphs 12, 13 and 14 above) were concordant with each other. This included an analysis and comparison of voices on that recording with voice samples of the persons associated with those voices in the text posted on the Internet. 54. Between September and November 2019 the head of the Gorilla investigation team confirmed to the media that the results of this voice analysis had shown that the voices in the recording were indeed those of the persons indicated in the written text. Nevertheless, he pointed out that the Constitutional Court had quashed the two warrants and had found that the primary material relating to their implementation had been destroyed. Therefore, in his view, the authenticity of the recording would never be established. He declined to comment on the material’s content other than stating that the audio recording contained some parts that appeared similar to the written material posted on the Internet and that some parts that were not contained in it. However, since there were diverging views as to the usability of the material in question as evidence, it was not possible to denounce anyone. The questions of the origin of the audio recording, the means of verifying its authenticity, and its relevance and usability as evidence were also commented on by other persons and officials. The applicant’s charges 55. On 1 December 2020 the applicant and two others were charged with various offences in connection with a suspicion that they had set up and operated a corporate cover-up scheme to compensate a former SIS agent for having provided the applicant with a copy of the original SIS intelligence material produced by the Gorilla operation. On the same day, various premises were searched and the applicant was arrested and later placed in detention pending trial on that charge, but that decision was quashed on 7 January 2021 and the applicant was released. 56. On 31 August 2021, in response to complaints lodged by the applicant and the other two persons, the Prosecutor General quashed the decision to bring charges against them. He noted, inter alia, that various written and audio material connected with the Gorilla operation had been available to numerous persons within and outside the SIS and that there were grounds to suspect that those persons had been unlawfully using it for their own benefit. Nevertheless, the individual charges against the applicant and the other two persons lacked any supporting evidence. In particular, they were principally based on the Gorilla material posted anonymously on the Internet and, in so far as that material pointed to an intelligence memorandum that presumably confirmed the factual basis for the charges, the text of that memorandum was not available to the investigators, and the SIS had refused to provide it, citing its classified nature under section 17(6) of the SIS Act. 57. In connection with his observation that the audio recording found in the home search of 2018 appeared to be the product of the SIS’s operation Gorilla, the Prosecutor General noted in passing that the applicant’s claim for its destruction was justified. 58. In conclusion, the Prosecutor General instructed the investigators to re-examine and decide on the matter in the light of his findings. 59. The Prosecutor General’s decision provoked a strong public reaction as to its substantive justification and the legitimacy of his exercise of the powers under which it had been issued. 60. On 7 September 2021 the OSP issued a public statement questioning on several counts the Prosecutor General’s analysis and conclusions. This included the Prosecutor General’s position as to the need for the destruction of the audio recording retrieved in the home search of 2018 and its eligibility to be used as evidence. 61. The investigation in this matter appears to be ongoing, but there is no indication that any new charges have been brought against any person. | This case concerned a surveillance operation (“the Gorilla operation”) carried out in 2005 and 2006 by the Slovak Intelligence Service (SIS) and the intelligence material obtained by it. The applicant – a prominent businessman associated with an influential finance group and a business partner of the applicant in the case of |
207 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1973 and was detained in London at the time he lodged his application. 10. On 9 October 2009 the Public Prosecutor ordered an investigation against the applicant on charges of rape and indecent assault on a girl under the age of sixteen, with the aggravating circumstance that the perpetrator held a position of authority over her. 11. On 4 December 2009 the applicant was arrested in the United Kingdom under a European Arrest Warrant. The Government indicated that the applicant was presented with the European arrest warrant, which contained a statement in English of the facts and of the nature of the offences with which he was charged. The applicant submitted that he had been placed in “detention pending extradition ” in a British prison, and that it did not transpire from the criminal file that the European arrest warrant had been served on him at that precise time. 12. On 17 December 2009 the applicant was surrendered to the Luxembourg authorities. At 2. 45 p. m. he was officially served with the European arrest warrant on his arrival at Luxembourg airport, and at 3. 20 p. m. he was questioned at the police station in the presence of an interpreter. It transpires from the police report of 17 December 2009 that “ [ the applicant] initially refused to make any statement. With repeated reference to British legislation, he claimed his right to legal assistance. After having received the requisite explanations regarding the procedure to be followed in cases such as his, he agreed to take part in the questioning ”. The applicant was informed of the victim ’ s statements and the suspicions against him, and was questioned on the facts. He stated his version of events and contested all the charges against him, denying any guilt. At the end of the interrogation he requested legal assistance for the following day ’ s interrogation before the investigating judge. At 7. 15 p. m. he was transferred to Luxembourg Prison. 13. On the morning of 18 December 2009 he was questioned by the investigating judge in the presence of an interpreter. In that connection, the minutes of the interrogation read as follows : at 9. 02 a. m. the investigating judge checked the identity of the applicant – who now held accused ( Beschuldigter ) status – and informed him that a criminal investigation ( Untersuchungsverfahren ) had been initiated against him concerning the offences with which he had been charged. The applicant was then informed of his right to choose a defence lawyer from among the members of the Bar Association or to obtain the assistance of an officially appointed lawyer. The applicant availed himself of that right, and was assigned Mr W. as his officially appointed lawyer. The applicant was questioned in the presence of his lawyer and an interpreter; he made statements on the facts and confirmed his statements to the police. The interrogation ended at 10. 53 a.m. 14. It transpires from the case file that the applicant, who had been remanded in custody, was released on 10 March 2010 by the Luxembourg District Court subject to his remaining in Luxembourg, reporting regularly to the police and refraining from contacting his victim. A. The first-instance judgment 15. By a judgment of 31 March 2011 the criminal division of the District Court sentenced the applicant to a seven-year prison term accompanied by a three-year partial probation period. The judges reiterated the statements from the victim, the witnesses and the applicant during the judicial and police investigations and during the court hearing. They mentioned the fact that the applicant had constantly changed his “ version of events ”, and pointed out that according to a credibility analysis none of the evidence gathered had cast any legitimate doubts on the truthfulness of the victim ’ s statements. B. The appeal judgment 16. On 7 February 2012 the criminal division of the Court of Appeal upheld the first- instance judgment. 17. The judges observed that the applicant had contested the charges against him throughout the proceedings and that he was maintaining his objections before the Court of Appeal. They held that the district court had provided a detailed and exhaustive list of the statements by the victim, the applicant and the various witnesses and experts questioned. 18. They pointed out that the applicant ’ s lawyer had complained about the fact that after the applicant ’ s extradition from the United Kingdom had had been heard by the police on his arrival in Luxembourg without the benefit of legal assistance, which he had requested but been denied; the judges therefore concluded as follows : “ As regards the failure to provide for the assistance of a lawyer during the question by police, it transpires from police report SPJ/JEUN/2009/6926-5/COES of 17 December 2009 that the accused had initially requested the assistance of a lawyer during the questioning which was to take place in the police station, but that after the applicable procedure had been explained to him he had agreed to give statements without the assistance of counsel. ” 19. In their analysis of the charges against the applicant, the judges noted, among other things, that the latter had not always been consistent in his statements. With particular regard to one of the episodes in issue, they referred to the difference between the statements which he had made during the police questioning and his depositions during the first-instance and appeal hearings. C. The judgment of the Court of Cassation 20. On 22 November 2012 the Court of Cassation dismissed the applicant ’ s appeal on points of law. In particular, it declared ill- founded a submission under Article 6 § 3 of the Convention, on the following grounds : “ Whereas it transpires from the discussion of the submission that the [applicant] complains that the Court of Appeal merely found a violation of the rights of the defence without drawing the requisite conclusions from that finding; Whereas, however, the Court of Appeal held that ... [ see quotation in paragraph 18]; That, in reaching such a decision the Appeal did not find a violation of the rights of the defence as alleged by the appellant but, on the contrary, concluded that there had been no violation of the rights of the defence inasmuch as the accused had recorded his agreement to making statements in the absence of counsel; It follows that the impugned judgment did not violate Article 6 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as alleged by the applicant; ... ” D. Subsequent events 21. The applicant left Luxembourg for the United Kingdom ( at an unspecified date ), and on 20 December 2012 the prosecution issued a European arrest warrant for the purposes of executing the 7 February 2012 judgment. 22. On 12 June 2013, in response to a request from the British authorities ( the Extradition Unit of the Crown Prosecution Service ) dated 29 May 2013, a representative of the Principal State Prosecutor provided those authorities with information on judicial procedures in Luxembourg. As regards the hearing of 17 December 2009, the representative stated in particular that it had transpired from the police report that the applicant, whose statements had been translated by the interpreter, had neither been assisted by a lawyer or been offered legal assistance. As regards the interrogation of 18 December 2009, the representative explained that a lawyer officially appointed by the investigating judge had assisted the applicant during the interrogation and for the duration of the ensuing domestic proceedings. She added that anyone asking to consult his or her officially appointed or freely chosen lawyer, before an interrogation, was allowed to do so; contrary to his assertions, the applicant ’ s access to his lawyer before the interrogation of 18 December 2009 had not been restricted. 23. On 19 August 2013 the British court authorised the applicant ’ s surrender to the Luxembourg authorities in order to serve his sentence in Luxembourg; the applicant ’ s appeal against that decision was dismissed on 20 December 2013. According to the case file, the applicant is currently incarcerated in Luxembourg Prison. | This case concerned the failure to provide the applicant with effective legal assistance after he was arrested under a European Arrest Warrant, during both his police interview and his first appearance before the investigating judge the next day. |
711 | Right to collective bargaining | 2. The years of the applicants’ birth, registration or establishment and their places of residence or seat are indicated in the appended table. They were represented by Mr W. Däubler, Dußlingen (first applicant), Mr F. Schorkopf, Göttingen (second applicant) and Mr U. Fischer, Frankfurt a.M. (applicants in the third to fifth applications). 3. The Government were represented by one of their Agents, Mr H. ‑ J. Behrens, of the Federal Ministry of Justice and Consumer Protection, and by Mr T. Giegerich, Professor at Saarland University. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The first applicant, Association of Civil Servants and Union for Collective Bargaining ( Beamtenbund und Tarifunion (dbb) ), is a confederation of trade unions and associations of the public service and the private service sector. One of its missions is to negotiate collective agreements for the members of its member unions. 6. The second applicant, Marburger Bund – Association of Employed and State-employed Physicians in Germany, concludes collective agreements for its members, employed physicians, since 2006. 7. The third applicant, the Trade Union of German Train Drivers ( GDL ) is the oldest trade union in Germany, whose mission it is to conclude collective agreements for its members, railway traffic employees. 8. The applicants in the fourth case (Ms Melanie Angert and others) and in the fifth application (Mr Sven Ratih) are members of the third applicant trade union. BACKGROUND TO THE ADOPTION OF THE UNIFORMITY OF COLLECTIVE AGREEMENTS ACT 9. A company may negotiate with different trade unions representing employees of that company and may conclude several collective agreements covering employees working in the same business unit of the company ( Betrieb ) with these trade unions. This may lead to conflicts where several collective agreements with diverging provisions cover employees in similar positions in that business unit (these are known as “conflicting collective agreements”). In that event, the Federal Labour Court had initially considered in its case-law, from 1957 onwards, that only the collective agreement which was most specifically tailored to the business unit in question remained applicable. In 2010 that court reversed its case-law (to which there had previously been some exceptions), which it then considered to lack a sufficient legal basis, and permitted different collective agreements to apply to employees in similar positions in one business unit of a company, depending on the relevant employee’s trade union membership. 10. On 3 July 2015, consequently, the legislature adopted the Uniformity of Collective Agreements Act, which entered into force on 10 July 2015, to provide for a new solution in case of conflicting collective agreements. Under this Act, which, in particular, inserted a new section 4a into the Collective Agreements Act ( Tarifvertragsgesetz, see paragraph 27 below), only the collective agreement concluded by the trade union which has the highest number of members employed within the business unit of the company concerned remains applicable; other collective agreements become inapplicable (section 4a § 2, second sentence). 11. The union whose collective agreement became inapplicable has the right to adopt the legal provisions of the majority union’s collective agreement ( Nachzeichnung ). Moreover, if the employing company engages in collective bargaining, it has to inform the other trade unions in that company, and all unions have the right to present their demands to the employer (section 4a §§ 4 and 5 of the Collective Agreements Act; see details in paragraph 27 below). 12. Furthermore, the Uniformity of Collective Agreements Act inserted sections 2a § 1 no. 6 and 99 into the Labour Courts Act (see in detail paragraph 30 below). They establish the procedure for determining which of the conflicting collective agreements is applicable in a given business unit. THE PROCEEDINGS BEFORE THE FEDERAL CONSTITUTIONAL COURT 13. The applicants lodged a constitutional complaint with the Federal Constitutional Court directly targeting the Uniformity of Collective Agreements Act, arguing that the legal provisions as amended by this Act breached, in particular, their right to form associations to safeguard and improve working and economic conditions under Article 9 § 3 of the Basic Law. 14. In a leading judgment of 11 July 2017 on the first and second applicants’ constitutional complaints, inter alia, the Federal Constitutional Court found, by six votes to two, that section 4a of the Collective Agreements Act as amended by the Uniformity of Collective Agreements Act was incompatible with Article 9 § 3 of the Basic Law in one respect only. The provision did not contain sufficient safeguards to ensure that the interests of those professional groups whose collective agreement became inapplicable under section 4a § 2, second sentence, were sufficiently taken into account in the applicable collective agreement. Apart from this, the Uniformity of Collective Agreements Act, interpreted in line with the reasons given in the Constitutional Court’s judgment, was compatible with the Basic Law, and the applicants’ constitutional complaints were thus essentially dismissed (file no. 1 BvR 1571/15 and others). 15. The Federal Constitutional Court found that the first and second applicants had themselves been directly affected, already at that stage, by the impugned provisions, as the latter had required them to take into account, in their current collective bargaining policy and organisational structure, the potential inapplicability of any future collective agreements negotiated by them. They therefore had standing to lodge a constitutional complaint. 16. The court further found that section 4a § 2, second sentence, of the Collective Agreements Act considerably impaired the right to form associations to safeguard and improve working and economic conditions under Article 9 § 3 of the Basic Law. The provision led to the inapplicability of the provisions of a collective agreement resulting from a trade union’s collective bargaining. The members of the trade union in question were accordingly left without a collective agreement. 17. Moreover, the provision led to trade unions which were in a minority position in a company no longer being considered as a serious collective bargaining partner by the employer. This weakened those trade unions’ ability to attract new members and to mobilise their members to strike. Furthermore, the trade unions’ freedom of association was impaired in that they might be obliged to disclose the number of their members in a business unit in labour court proceedings to determine the majority union ( see section 2a § 1 no. 6 and 99 of the Labour Courts Act, at paragraph 30 below), and thus their strength in the event of industrial action. Moreover, the provision affected their decisions on their negotiation policy and profile, and particularly on the professional groups they wished to represent. However, the provision did not curtail a trade union’s right to strike even where it was known in advance that the trade union taking industrial action had a smaller number of members than another trade union in the company concerned. 18. The interferences with the right to freedom of association by the impugned provisions, interpreted in the light of the Basic Law, fell, for the most part, within the State’s margin of appreciation and were thus justified. 19. Freedom of association could be restricted by legal provisions regulating the relationship between competing trade unions. The impugned provisions pursued the important legitimate aim of ensuring that a fair balance was struck in collective agreements on working and economic conditions and thus safeguarding the operation of the system of autonomous collective bargaining ( Tarifautonomie ). They aimed at influencing trade unions’ activities by encouraging them to cooperate and avoid negotiating different collective agreements for employees in similar positions. Fair collective bargaining would be jeopardised if employees with key positions in a business unit negotiated their working and economic conditions separately and thereby impaired the other employees’ ability to negotiate on an equal footing with the employer. 20. The court stated that, in order to be proportionate, the impugned provisions had to be interpreted restrictively. Firstly, all parties to collective agreements in a business unit could agree on the agreement of a minority trade union not becoming inapplicable under section 4a § 2, second sentence, of the Collective Agreements Act where several conflicting collective agreements had been concluded. Furthermore, a collective agreement only became inapplicable in certain circumstances, that is to say if, and for as long as, there was an overlap with the majority union’s agreement as regards the place, time, business unit and employees’ position covered and if at least part of the provisions on working conditions differed in the agreements (conflicting collective agreements). Even where such a conflict occurred, long-term benefits or guarantees concerning the personal life planning agreed upon in a minority’s collective agreement, such as longer-term contributions to a pension, job guarantees or provisions on the duration of working life, could not be rendered inapplicable unless there was a comparable benefit or guarantee in the majority’s agreement. 21. Moreover, the right to adopt the majority union’s collective agreement under section 4a § 4 of the Collective Agreements Act was to be interpreted broadly and applied to the majority’s agreement in its entirety and not only to the issues in respect of which the agreements overlapped. Furthermore, a collective agreement did not become inapplicable where the rules on notification of collective bargaining and on hearing other competing trade unions (section 4a § 5 of the Collective Agreements Act), which served to safeguard the minority unions’ rights under Article 9 § 3 of the Basic Law, had not been respected. Finally, the proceedings under section 99 of the Labour Courts Act had to be led in such a way as to avoid, as far as possible, disclosing the number of members in a given trade union. This could be achieved by a notary certifying only the fact which union organises the majority of employees in a business unit, without disclosing the names and number of members of the trade unions concerned. 22. Section 4a § 2, second sentence, of the Collective Agreements Act was, however, disproportionate in so far as it did not provide for safeguards against neglecting the interests of employees in particular professions or sectors by the majority trade union (in which these employees may be un- or under-represented) in the collective agreement negotiated by that union. That provision remained applicable until it was amended by the legislature (until 31 December 2018 at the latest), with the proviso that a collective agreement could only become inapplicable if it had been substantiated that the majority trade union had seriously and effectively taken into account the interests of the professional groups whose collective agreement became inapplicable. 23. Rules of public international law, including, inter alia, Article 11 of the Convention and the European Social Charter, contained no guarantees going beyond the protection provided by Article 9 § 3 of the Basic Law. 24. By decision of 10 August 2017, served on counsel for the applicants on 28 September 2017, the Federal Constitutional Court, referring to its leading judgment of 11 July 2017, declined to consider the constitutional complaints by the applicants in the third to fifth applications (file no. 1 BvR 1803/15). | This case concerned the Uniformity of Collective Agreements Act (Tarifeinheitsgesetz), which regulates conflicts that arise if there are several collective agreements in one “business unit” (Betrieb) of a company1. The applicants – three German trade unions and six members of one of them – submitted that the relevant provisions of the Act in question had violated their right to form and join trade unions, including the right to collective bargaining. They argued in particular that the legislation had resulted in their not being able to conclude collective agreements in companies in which a different trade union had more members, and in employers no longer wishing to negotiate with them. |
299 | Prevention of terrorism | 10. The applicants, who are German nationals, are Gerhard Klass, an Oberstaatsanwalt, Peter Lubberger, a lawyer, Jürgen Nussbruch, a judge, Hans- Jürgen Pohl and Dieter Selb, lawyers. Mr. Nussbruch lives in Heidelberg, the others in Mannheim. All five applicants claim that Article 10 para. 2 of the Basic Law ( Grundgesetz ) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications ( Gesetz zur Beschränkung des Brief-, Post- under Fernmeldegeheimnisses, hereinafter referred to as "the G 10"), are contrary to the Convention. They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures. Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court ( Bundesverfassungsgericht ). 11. Before lodging their application with the Commission, the applicants had in fact appealed to the Federal Constitutional Court. By judgment of 15 December 1970, that Court held that Article 1 para. 5, sub-paragraph 5 of the G 10 was void, being incompatible with the second sentence of Article 10 para. 2 of the Basic Law, in so far as it excluded notification of the person concerned about the measures of surveillance even when such notification could be given without jeopardising the purpose of the restriction. The Constitutional Court dismissed the remaining claims (Collected Decisions of the Constitutional Court, Vol. 30, pp. 1 et seq.). Since the operative provisions of the aforementioned judgment have the force of law, the competent authorities are bound to apply the G 10 in the form and subject to the interpretation decided by the Constitutional Court. Furthermore, the Government of the Federal Republic of Germany were prompted by this judgment to propose amendments to the G 10, but the parliamentary proceedings have not yet been completed. 12. As regards the applicants ’ right to apply to the Constitutional Court, that Court held, inter alia: "In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ..." (ibid, pp. 16-17). 13. Although, as a precautionary measure, the applicants claimed before both the Constitutional Court and the Commission that they were being subjected to surveillance measures, they did not know whether the G 10 had actually been applied to them. On this point, the Agent of the Government made the following declaration before the Court: "To remove all uncertainty as to the facts of the case and to give the Court a clear basis for its decision, the Federal Minister of the Interior, who has competence in the matter, has, with the G 10 Commission ’ s approval, authorised me to make the following statement: At no time have surveillance measures provided for by the Act enacted in pursuance of Article 10 of the Basic Law been ordered or implemented against the applicants. Neither as persons suspected of one or more of the offences specified in the Act nor as third parties within the meaning of Article 1, paragraph 2, sub-paragraph 2, of the G 10 have the applicants been subjected to such measures. There is also no question of the applicants ’ having been indirectly involved in a surveillance measure directed against another person - at least, not in any fashion which would have permitted their identification. Finally, there is no question of the applicants ’ having been subjected to surveillance by mistake - for example through confusion over a telephone number -, since in such cases the person concerned is notified of the surveillance measure." The contested legislation 14. After the end of the Second World War, the surveillance of mail, post and telecommunications in Germany was dealt with by the occupying powers. As regards the Federal Republic, neither the entry into force on 24 May 1949 of the Basic Law nor the foundation of the State of the Federal Republic on 20 September 1949 altered this situation which continued even after the termination of the occupation régime in 1955. Article 5 para. 2 of the Convention of 26 May 1952 on Relations between the Three Powers (France, the United States and the United Kingdom) and the Federal Republic - as amended by the Paris Protocol of 23 October 1954 - specified in fact that the Three Powers temporarily retained "the rights ... heretofore held or exercised by them, which relate to the protection of the security of armed forces stationed in the Federal Republic". Under the same provision, these rights were to lapse "when the appropriate German authorities (had) obtained similar powers under German legislation enabling them to take effective action to protect the security of those forces, including the ability to deal with a serious disturbance of public security and order". 15. The Government wished to substitute the domestic law for the rights exercised by the Three Powers and to place under legal control interferences with the right, guaranteed by Article 10 of the Basic Law, to respect for correspondence. Furthermore, the restrictions to which this right could be subject appeared to the Government to be inadequate for the effective protection of the constitutional order of the State. Thus, on 13 June 1967, the Government introduced two Bills as part of the Emergency Legislation. The first sought primarily to amend Article 10 para. 2 of the Basic Law; the second - based on Article 10 para. 2 so amended - was designed to limit the right to secrecy of the mail, post and telecommunications. The two Acts, having been adopted by the federal legislative assemblies, were enacted on 24 June and 13 August 1968 respectively. The Three Powers had come to the view on 27 May that these two texts met the requirements of Article 5 para. 2 of the above-mentioned Convention. Their statements declared: "The rights of the Three Powers heretofore held or exercised by them which relate to the protection of the security of armed forces stationed in the Federal Republic and which are temporarily retained pursuant to that provision will accordingly lapse as each of the above-mentioned texts, as laws, becomes effective." 16. In its initial version, Article 10 of the Basic Law guaranteed the secrecy of mail, post and telecommunications with a proviso that restrictions could be ordered only pursuant to a statute. As amended by the Act of 24 June 1968, it now provides: "(1) Secrecy of the mail, post and telecommunications shall be inviolable. (2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people ’ s elected representatives." 17. The G 10, adopting the solution contemplated by the second sentence of paragraph 2 of the above-quoted Article 10, specifies (in Article 1 para. 1) the cases in which the competent authorities may impose the restrictions provided for in that paragraph, that is to say, may open and inspect mail and post, read telegraphic messages, listen to and record telephone conversations. Thus, Article 1 para. 1 empowers those authorities so to act in order to protect against "imminent dangers" threatening the "free democratic constitutional order", "the existence or the security of the Federation or of a Land", "the security of the (allied) armed forces" stationed on the territory of the Republic and the security of "the troops of one of the Three Powers stationed in the Land of Berlin". According to Article 1 para. 2, these measures may be taken only where there are factual indications ( tatsächliche Anhaltspunkte ) for suspecting a person of planning, committing or having committed certain criminal acts punishable under the Criminal Code, such as offences against the peace or security of the State (sub-paragraph 1, no. 1), the democratic order (sub-paragraph 1, no. 2), external security (sub-paragraph 1, no. 3) and the security of the allied armed forces (sub-paragraph 1, no. 5). Paragraph 2 of Article 1 further states that the surveillance provided for in paragraph 1 is permissible only if the establishment of the facts by another method is without prospects of success or considerably more difficult ( aussichtslos oder wesentlich erschwert ). The surveillance may cover only "the suspect or such other persons who are, on the basis of clear facts ( bestimmter Tatsachen ), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use" (sub-paragraph 2). 18. Article 1 para. 4 of the Act provides that an application for surveillance measures may be made only by the head, or his substitute, of one of the following services: the Agencies for the Protection of the Constitution of the Federation and the Länder ( Bundesamt für Verfassungsschutz; Verfassungsschutzbehörden der Länder ), the Army Security Office (Amt für Sicherheit der Bundeswehr ) and the Federal Intelligence Service ( Bundesnachrichtendienst ). The measures are ordered, on written application giving reasons, either by the supreme Land authority in cases falling within its jurisdiction or by a Federal Minister empowered for the purpose by the Chancellor. The Chancellor has entrusted these functions to the Ministers of the Interior and of Defence each of whom, in the sphere falling within his competence, must personally take the decision as to the application of the measures (Article 1 para. 5, sub-paragraphs 1 and 2). Measures ordered must be immediately discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary (Article 1 para. 7, sub-paragraph 2). The measures remain in force for a maximum of three months and may be renewed only on fresh application (Article 1 para. 5, sub-paragraph 3). 19. Under the terms of Article 1 para. 5, sub-paragraph 5, the person concerned is not to be notified of the restrictions affecting him. However, since the Federal Constitutional Court ’ s judgment of 15 December 1970 (see paragraph 11 above), the competent authority has to inform the person concerned as soon as notification can be made without jeopardising the purpose of the restriction. To this end, the Minister concerned considers ex officio, immediately the measures have been discontinued or, if need be, at regular intervals thereafter, whether the person concerned should be notified. The Minister submits his decision for approval to the Commission set up under the G 10 for the purpose of supervising its application (hereinafter called "the G 10 Commission"). The G 10 Commission may direct the Minister to inform the person concerned that he has been subjected to surveillance measures. 20. Implementation of the measures ordered is supervised by an official qualified for judicial office (Article 1 para. 7, sub-paragraph 1). This official examines the information obtained in order to decide whether its use would be compatible with the Act and whether it is relevant to the purpose of the measure. He transmits to the competent authorities only information satisfying these conditions and destroys any other intelligence that may have been gathered. The information and documents so obtained may not be used for other ends and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (Article 1 para. 7 sub-paragraphs 3 and 4). 21. The competent Minister must, at least once every six months, report to a Board consisting of five Members of Parliament on the application of the G 10; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board (Article 1 para. 9, sub-paragraph 1, of the G 10 and Rule 12 of the Rules of Procedure of the Bundestag). In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered (Article 1 para. 9). In practice and except in urgent cases, the Minister seeks the prior consent of this Commission. The Government, moreover, intend proposing to Parliament to amend the G 10 so as to make such prior consent obligatory. The G 10 Commission decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately (Article 1 para. 9, sub-paragraph 2). Although not required by the Constitutional Court ’ s judgment of 15 December 1970, the Commission has, since that judgment, also been called upon when decisions are taken on whether the person concerned should be notified of the measures affecting him (see paragraph 19 above). The G 10 Commission consists of three members, namely, a Chairman, who must be qualified to hold judicial office, and two assessors. The Commission members are appointed for the current term of the Bundestag by the above-mentioned Board of five Members of Parliament after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions. The G 10 Commission draws up its own rules of procedure which must be approved by the Board; before taking this decision, the Board consults the Government. For the Länder, their legislatures lay down the parliamentary supervision to which the supreme authorities are subject in the matter. In fact, the Länder Parliaments have set up supervisory bodies which correspond to the federal bodies from the point of view of organisation and operation. 22. According to Article 1 para. 9, sub-paragraph 5, of the G 10: "... there shall be no legal remedy before the courts in respect of the ordering and implementation of restrictive measures." The official statement of reasons accompanying the Bill contains the following passage in this connection: "The surveillance of the post and telecommunications of a certain person can serve a useful purpose only if the person concerned does not become aware of it. For this reason, notification to this person is out of the question. For the same reason, it must be avoided that a person who intends to commit, or who has committed, the offences enumerated in the Act can, by using a legal remedy, inform himself whether he is under surveillance. Consequently, a legal remedy to impugn the ordering of restrictive measures had to be denied ... The Bill presented during the 4th legislative session ... provided for the ordering (of such measures) by an independent judge. The Federal Government abandoned this solution in the Bill amending Article 10 of the Basic Law, introduced as part of the Emergency Legislation, mainly because the Executive, which is responsible before the Bundestag, should retain the responsibility for such decisions in order to observe a clear separation of powers. The present Bill therefore grants the power of decision to a Federal Minister or the supreme authority of the Land. For the (above-)mentioned reasons ..., the person concerned is deprived of the opportunity of having the restrictive measures ordered examined by a court; on the other hand, the constitutional principle of government under the rule of law demands an independent control of interference by the Executive with the rights of citizens. Thus, the Bill, in pursuance of the Bill amending Article 10 of the Basic Law ..., prescribes the regular reporting to a Parliamentary Board and the supervision of the ordering of the restrictive measures by a Control Commission appointed by the Board ..." (Bundestag document V/1880 of 13 June 1967, p. 8). 23. Although access to the courts to challenge the ordering and implementation of surveillance measures is excluded in this way, it is still open to a person believing himself to be under surveillance pursuant to the G 10 to seek a constitutional remedy: according to the information supplied by the Government, a person who has applied to the G 10 Commission without success retains the right to apply to the Constitutional Court. The latter may reject the application on the ground that the applicant is unable to adduce proof to substantiate a complaint, but it may also request the Government concerned to supply it with information or to produce documents to enable it to verify for itself the individual ’ s allegations. The authorities are bound to reply to such a request even if the information asked for is secret. It is then for the Constitutional Court to decide whether the information and documents so obtained can be used; it may decide by a two-thirds majority that their use is incompatible with State security and dismiss the application on that ground (Article 26 para. 2 of the Constitutional Court Act). The Agent of the Government admitted that this remedy might be employed only on rare occasions. 24. If the person concerned is notified, after the measures have been discontinued, that he has been subject to surveillance, several legal remedies against the interference with his rights become available to him. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court declaration, the legality of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law. 25. Article 2 of the G 10 has also amended the Code of Criminal Procedure by inserting therein two Articles which authorise measures of surveillance of telephone and telegraphic communications. Under Article 100 (a), these measures may be taken under certain conditions, in particular, when there are clear facts on which to suspect someone of having committed or attempted to commit certain serious offences listed in that Article. Under Article 100 (b), such measures may be ordered only by a court and for a maximum of three months; they may be renewed. In urgent cases, the decision may be taken by the public prosecutor ’ s department but to remain in effect it must be confirmed by a court within three days. The persons concerned are informed of the measures taken in their respect as soon as notification can be made without jeopardising the purpose of the investigation (Article 101 para. 1 of the Code of Criminal Procedure). These provisions are not, however, in issue in the present case. | In this case the applicants, five German lawyers, complained about legislation in Germany empowering the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them. |
613 | Freedom of expression in the employment context | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1961 and lives in Berlin. She had been working as a geriatric nurse for Vivantes Netzwerk für Gesundheit GmbH (hereinafter referred to as “Vivantes”), a limited liability company specialising in health care, geriatrics and assistance to the elderly which is majority-owned by the Land of Berlin, from 16 September 2000 until 9 February 2005, when she was dismissed. A. The events leading to the applicant’s dismissal 7. Since January 2002 the applicant had been working in a geriatric nursing home operated by Vivantes, where the patients were partly bedridden, disorientated, and generally dependent on special assistance. In 2002 the Medical Review Board of the Health Insurance Fund ( Medizinischer Dienst der Krankenkassen, hereinafter referred to as “MDK”) established serious shortcomings in the daily care provided there, caused by a shortage of staff. 8. Between 24 January 2003 and 19 October 2004 the applicant and her colleagues regularly indicated to the management that they were overburdened on account of staff shortages and therefore had difficulties carrying out their duties. They specified the deficiencies in the care provided and also mentioned that services were not properly documented. In a notification dated 18 May 2003 the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages. From 19 May 2003 onwards the applicant repeatedly fell ill and was sometimes unable to work. One medical certificate stated that this was the result of overworking. 9. In November 2003, following a further inspection, the MDK, established serious shortcomings in the care provided, on grounds of, inter alia, staff shortages, inadequate standards and unsatisfactory care as well as inadequate documentation of care, and accordingly threatened to terminate the service agreement with the applicant’s employer. Subsequently, restructuring took place. 10. Following a number of further notifications to her superiors explaining the situation, in particular in October 2004, the applicant again fell ill and finally consulted a lawyer. 11. In a letter dated 9 November 2004 the applicant’s legal counsel wrote to the Vivantes management. He pointed out that, on account of the lack of staff, the patients’ basic hygienic care ( ausreichende hygienische Grundversorgung ) could no longer be guaranteed. He also requested the management to specify how they intended to avoid criminal responsibility – also for the staff – and how they intended to ensure that the patients could be properly cared for. He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation, with all its negative implications. He gave the management until 22 November 2004 to respond. 12. On 18 November 2004 the MDK again visited the premises without prior notice. It was subsequently in dispute between the parties whether the MDK had in fact established that the staffing situation, although difficult, was not critical. 13. On 22 November 2004 the management rejected the applicant’s accusations. 14. On 7 December 2004 the applicant’s lawyer lodged a criminal complaint against Vivantes for aggravated fraud and requested the public prosecutor to examine the circumstances of the case under all its relevant legal aspects. He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself following her numerous complaints to Vivantes which had not brought any improvements in the care provided. It was argued that, owing to the lack of staff and the inadequate standards, her employer knowingly failed to provide the high-quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk. He also alleged that Vivantes had systematically tried to cover up the existing problems and urged staff to falsify records of services rendered. The applicant’s complaint referred to the report produced by the MDK following their visit in 2003, and stated that she would be willing to attest to the bad conditions at the nursing home. It further included statements by the applicant concerning overworking and referred to minutes of a team meeting advising Vivantes staff, in order to avoid disciplinary consequences, not to disclose staff shortages and time pressures to patients and their relatives. The criminal complaint included the following passage: “The company Vivantes GmbH, which has financial difficulties and is aware of this, has deceived family members, because the care provided does not in any way correspond to or justify the fees paid. Vivantes GmbH is therefore enriching itself and accepts the inadequacy of the medical and hygienic care. ... This demonstrates how it systematically – including by intimidating staff – tries to cover up existing problems. Staff are requested to draw up records of care provided which do not reflect the way such care was actually given ... Similar problems exist in other institutions; therefore considerable damage is at issue.” 15. On 10 December 2004 the applicant’s lawyer also contacted the board of directors of the applicant’s employer and stated that there was a shortage of staff at the nursing home and that it failed to meet hygiene standards. 16. On 5 January 2005 the Berlin Public Prosecutor’s Office discontinued the preliminary investigations against Vivantes pursuant to Article 170 § 2 of the Code of Criminal Procedure ( Strafprozessordnung - see “Relevant domestic law and practice” below). 17. By a letter dated 19 January 2005 the nursing home dismissed the applicant, on account of her repeated illness, with effect from 31 March 2005. The applicant challenged the dismissal before the Berlin Labour Court (file No. 35 Ca 3077/05). 18. Subsequently, the applicant contacted friends and also her trade union, Vereinte Dienstleistungsgewerkschaft (ver.di). On 27 January 2005 they issued a leaflet headed as follows: “Vivantes wants to intimidate colleagues!! Not with us! Immediate revocation of the dismissal of our colleague Brigitte who used to work at Vivantes Forum for Senior Citizens Call for the foundation of a non-party solidarity group” The leaflet also stated that the applicant had lodged a criminal complaint but that this had not resulted in a criminal investigation and that she had been dismissed on account of her illness. It further stated as follows: “Let’s answer back at last ... The insanity that private operators, together with the Berlin SPD/PDS senate, are destroying our manpower out of greed ... Vivantes flagrantly takes advantage of our social commitment. ... This is more than just a dismissal! This is a political disciplinary measure taken in order to gag employees ...” 19. On 31 January 2005 the applicant sent one such leaflet by fax to the residential home, where it was distributed. Only then did Vivantes become aware of the applicant’s criminal complaint. 20. On 1 February 2005 the applicant’s employer gave her the opportunity to make a statement regarding the leaflet; the applicant declined to do so, however. On 4 February 2005 Vivantes informed the works council that it intended to dismiss the applicant without notice. On 8 February 2005 the works council declared that it would not agree to the applicant’s dismissal. 21. On 9 February 2005 the applicant’s employer dismissed her without notice or, alternatively, by 31 March 2005 on suspicion of having initiated the production and dissemination of the leaflet. 22. A new leaflet was subsequently issued reporting on this dismissal; in addition, the situation was reported in a TV programme and in two articles published in different newspapers. 23. On 21 February 2005 the preliminary investigation proceedings against Vivantes were resumed by the Berlin Public Prosecutor’s Office at the applicant’s request. 24. On 25 February 2005 the applicant lodged a claim with the Berlin Labour Court (file no. 39 Ca 4775/05) against her dismissal without notice of 9 February 2005. 25. On 25 April 2005 the applicant’s former employer issued a further notice of dismissal. The applicant’s claim of 25 February 2005 was then extended accordingly. 26. On 12 May 2005 the applicant was heard as a witness by the public prosecution in preliminary investigation proceedings against Vivantes. The preliminary proceedings were again discontinued on 26 May 2005 pursuant to Article 170 § 2 of the Code of Criminal Procedure. B. Civil proceedings following the applicant’s dismissal without notice 27. By a judgment of 3 August 2005 (file No. 39 Ca 4775/05) the Berlin Labour Court ( Arbeitsgericht ) established that the employment contract had not been terminated by the dismissal of 9 February 2005 since this could not be justified under Article 626 of the German Civil Code ( Bürgerliches Gesetzbuch ) or section 1(1) of the Unfair Dismissal Act ( Kündigungsschutzgesetz - see “Relevant domestic law and practice” below). In this connection it found that the leaflet – the content of which was attributable to the applicant, since she had transmitted it to her employer without any further declaration – was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract. Although it was polemical, it had been based on objective grounds and had not upset the “working climate” in the nursing home. 28. Following a hearing on 28 March 2006, the Berlin Labour Court of Appeal ( Landesarbeitsgericht ), by a judgment of the same date, quashed the judgment of the Labour Court and found that the dismissal of 9 February 2005 had been lawful as the applicant’s criminal complaint had provided a “compelling reason” for the termination of the employment relationship without notice under Article 626 § 1 of the Civil Code and had made continuation of the employment relationship unacceptable. It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since, in particular, merely referring to the shortage of staff was not sufficient to enable her to allege fraud, and since she had failed to further specify the alleged instruction to falsify records, which was also evidenced by the fact that the public prosecutor had not opened an investigation. The Labour Court of Appeal further held that the criminal complaint amounted to a disproportionate reaction to the denial by Vivantes of any staff shortages, since the applicant had never attempted to have her allegation of fraud examined internally and since, moreover, she had intended to put undue pressure on her employer by provoking a public discussion of the issue. It also pointed out that the nursing home was under the supervision of the MDK, which had carried out a further inspection there on 18 November 2004, shortly before the applicant had lodged her complaint. She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary. The court, referring also to the principles established by the Federal Labour Court in its relevant case-law (see “Relevant domestic law and practice” below), concluded that the applicant had not been acting within her constitutional rights and had breached her duty of loyalty towards her employer. 29. On 6 June 2007 the Federal Labour Court ( Bundesarbeitsgericht ) dismissed an appeal by the applicant against the decision refusing her leave to appeal on points of law. 30. By a decision of 6 December 2007, which was served on the applicant on 12 December 2007, the Federal Constitutional Court refused, without stating further reasons, to accept her constitutional complaint for adjudication. | This case concerned the dismissal of a geriatric nurse after having brought a criminal complaint against her employer alleging deficiencies in the care provided. The applicant complained that her dismissal and the courts’ refusal to order her reinstatement had violated her right to freedom of expression. |
992 | Cases in which the Court found no violation of Article 18 in conjunction with Article 5 | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1970 and lives in Dnipro (named Dnipropetrovsk prior to June 2016). A. The applicant ’ s involvement in Ukrainian politics 7. From 19 March 2014 to 24 March 2015 the applicant was Deputy Head and Chief of Staff of the Dnipropetrovsk Regional State Administration (“the Regional Administration”). As he explained, following a deterioration of relationships between the President of Ukraine and the then Head of the Regional Administration, the latter resigned together with his political team, including the applicant. 8. On 15 September 2014 the applicant was awarded an “Order for Courage” by the President of Ukraine “for his commitment, active civic stance and high professionalism in carrying out his official duties”. 9. On 12 July 2015 the applicant became the leader of a new political party, the Ukrainian Union of Patriots (“UKROP” – Українське об ’ єднання патріотів — “УКРОП” ), which sharply criticised those in power in general and President Poroshenko in particular. 10. On 26 July 2015 the applicant, as the UKROP leader, ran for the mid-term parliamentary elections in Chernigiv. Having obtained 14.76% of votes, he lost the elections to the candidate from the “Bloc of Petro Poroshenko” (35.90%). 11. In the local elections of 25 October 2015 the UKROP party received 7.43% of votes nationwide and came fourth (the three leading parties were: “Bloc of Petro Poroshenko” (19.52%); “Batkivshchyna” (12.23%); and “Opposition Bloc” (10.54%)). The applicant ran for the post of Kyiv mayor and lost the election, having obtained 2.61% of the vote. B. Criminal proceedings against the applicant 12. On 14 August 2014 the Head of the State Agency of Land Resources (“the Agency”), R., was held against his will in the applicant ’ s office. The applicant insisted that R. appoint a particular person to the post of head of the Agency ’ s regional department, having previously dismissed the holder of that post. R. complained about the incident to the police. 13. On 15 August 2014 criminal proceedings were instituted against the applicant and another person in respect of the above-mentioned events, on suspicion of a public official ’ s kidnapping and aggravated car theft (R. ’ s car had been moved without his consent). The relevant entry was made in the Unified register of pre-trial investigations (proceedings no. 12014040670002852, hereinafter referred to as “proceedings no. 52”). 14. On 25 February 2015 further criminal proceedings were instituted against the applicant and another person. They were suspected of having organised the kidnapping, on that same day, of V., an official of the Dnipropetrovsk City Council, with a view to forcing the acting head of that authority, Ro., to resign. 15. On 7 August 2015 another set of criminal proceedings was instituted against the applicant on suspicion of embezzlement of funds of a charity organisation set up in May 2014 with a view to collecting voluntary contributions to support Ukrainian soldiers fighting in the east of Ukraine. 16. On 30 September 2015 the Head of the Dnipropetrovsk Regional Election Commission received telephone threats of violence from somebody who had introduced himself by the applicant ’ s name. On 1 October 2015 criminal proceedings were instituted against the applicant in that respect, on suspicion of interference with the work of an electoral officer. 17. On 31 October 2015 an investigator from the Prosecutor General ’ s Office (“the PGO”) arrested the applicant and announced that he was suspected of criminal offences under Article 191 § 5 (embezzlement of funds of a charity organisation by an organised group), Article 255 § 1 (creation of a criminal organisation), Article 289 § 2 (aggravated car theft) and Article 349 (two counts of taking a public official hostage) of the Criminal Code. It appears from the text of the relevant notification that all the charges against the applicant were joined to proceedings no. 52 (see paragraph 13 above). 18. The circumstances of the applicant ’ s arrest were as follows. At 8.40 a.m. on 31 October 2015, the PGO investigator, accompanied by a special force unit, arrived at the applicant ’ s home in Dnipropetrovsk and demanded that he open the door, which the applicant refused to do. Having forced the entrance door, the police entered the applicant ’ s flat. The applicant, who was inside behind the door, protested against the officers ’ conduct as failing to respect the privacy of his home. The police arrested the applicant and took him to Kyiv (the reasons for the decision to deal with the case in Kyiv are unknown). 19. At 8.37 p.m. on the same day the investigator drew up a report on the applicant ’ s arrest. As indicated therein, the applicant had been arrested under Article 208 of the Code of Criminal Procedure (“the CCP”) ( see paragraph 96 below) on suspicion of having committed criminal offences under Articles 191 § 5, 255 § 1, 289 § 2 and 349 of the Criminal Code. The report template contained the following two pre-printed grounds for the arrest: (1) where the person was caught in flagrante delicto; or (2) where, immediately after the criminal offence, eyewitnesses including the victim pointed at the person as the offender, or this was suggested by the totality of obvious indications on that person ’ s body or clothes or at the scene of the events. The investigator underlined the second of the above ‑ mentioned options as the grounds for the applicant ’ s arrest. A space provided in the report template for indicating “specific facts and data” was left blank. 20. On 2 November 2015 the investigator applied to the investigating judge of the Chernigiv Novozavodskyy District Court (“the Novozavodskyy Court”) for the applicant ’ s pre-trial detention as a preventive measure pending trial (the case was examined in Chernigiv because the PGO had entrusted the investigation to the Chernigiv Regional Prosecutor ’ s Office). The investigator referred to the gravity of the charges against the applicant, the potential penalty for which was up to fifteen years ’ imprisonment. It was further observed that the applicant had friendly relations with officials of law-enforcement, judicial and other authorities. The investigator therefore considered that the applicant might use his connections in order to influence witnesses, victims or other suspects in the proceedings, or to hinder the investigation by destroying evidence, for example. 21. On the same day the applicant was transported from Kyiv to Chernigiv (150 km) in a regular minibus. According to him, he was held in the vehicle from 9 a.m. to 5 p.m., during the journey and while waiting upon arrival at Chernigiv, without any water or food and without access to a toilet. According to the Government, who relied on the information from the PGO, “the applicant had been provided with water and access to sanitary facilities at his requests”. 22. Later on 2 November 2015 the applicant complained to the Kyiv Pecherskyy District Court (“the Pecherskyy Court”, situated near the PGO headquarters) that his arrest had been arbitrary and unlawful. He observed, in particular, that the legal preconditions for arrest without a judicial warrant had not been met in his case. 23. On the same date another set of criminal proceedings was instituted against the applicant, on suspicion of aggravated interference with the work of an electoral officer. Namely, during the night from 30 to 31 October 2015 the applicant, together with several other persons, had allegedly hindered the activity of a member of the Dnipropetrovsk City Election Commission “by violence and threats of violence and had demonstrated power by the presence of armed persons and military equipment near the electoral commission ’ s premises”. Those proceedings were joined to proceedings no. 52 ( see paragraphs 13 and 17 above). 24. At 8.40 a.m. on 3 November 2015, the time-limit for arrest without a judicial decision (seventy-two hours) expired and the applicant was released in the hearing room of the Novozavodskyy Court. However, at 8.42 a.m., before he could even leave that room, he was immediately re-arrested, by a decision of the investigator, on suspicion of having committed a criminal offence under Article 157 § 3 of the Criminal Code (aggravated interference with the work of an electoral officer). The applicant was immediately taken to Kyiv and the investigator drew up a report on his arrest. As in the previous arrest report of 31 October 2015 ( see paragraph 19 above), the investigator underlined the pre-printed phrase “where, immediately after the criminal offence, eyewitnesses including the victim pointed at the person as the offender, or this was suggested by the totality of obvious indications on that person ’ s body or clothes or at the site of the events” as the grounds for the applicant ’ s re-arrest. 25. On the same day the PGO decided that its own Main Investigation Department would take over the investigation from the Chernigiv Prosecutor ’ s Office. 26. In addition to his complaint regarding his arrest ( see paragraph 22 above), the applicant complained to the Pecherskyy Court that his re-arrest on 3 November 2015 had been unlawful too. 27. On 4 November 2015 the PGO investigator applied to the investigating judge of the Pecherskyy Court for the applicant ’ s pre-trial detention as a preventive measure pending trial. This new application reproduced the text of the one submitted earlier, on 2 November 2015 (see paragraph 20 above), with an additional reference to the charge of interference with the work of an electoral officer ( see paragraphs 23 and 24 above). 28. On the same date the investigating judge of the Novozavodskyy Court ruled, in the light of the above-mentioned developments, to leave without examination the investigator ’ s application of 2 November 2015 regarding the applicant ’ s pre-trial detention ( see paragraph 20 above). 29. On 5 November 2015 the Pecherskyy Court decided to examine jointly the investigator ’ s application and the applicant ’ s complaints of 2 and 3 November 2015 regarding the lawfulness of his arrest and re-arrest ( see paragraphs 22, 26 and 27 above). 30. On 6 November 2015 the investigating judge of the Pecherskyy Court allowed the investigator ’ s application of 4 November 2005 in part and ordered the applicant ’ s twenty-four-hour house arrest, with an obligation to wear an electronic tracking device, as a preventive measure for the initial period until 31 December 2015. She referred, in particular, to the gravity of the charges against the applicant and the seriousness of the potential sanctions. At the same time, it was noted in the ruling that the applicant had a permanent place of residence, elderly parents and three minor children. Furthermore, the judge took into account the fact that the applicant was the leader of a political party and that he had received numerous awards, including the presidential “Order for Courage” on 15 September 2014. It was also observed that he had positive character references, and numerous members of parliament had offered their personal surety as a guarantee that he would comply with his procedural obligations. 31. As regards the applicant ’ s complaint about the alleged unlawfulness of his arrest of 31 October 2015, the investigating judge concluded that at the time of the impugned event, the applicant had been outside the territorial jurisdiction of the Pecherskyy Court and that she therefore had no competence to rule on that issue. 32. In so far as the applicant had raised the same complaint in respect of his re-arrest on 3 November 2015, the judge held, without providing further details, that it had been in compliance with Article 208 of the CCP. 33. Both the applicant and the prosecutor challenged the above ruling on appeal. The prosecutor insisted on the applicant ’ s pre-trial detention as the most appropriate preventive measure. The applicant ’ s lawyer argued that the investigating judge had not provided a single reason to justify such a restrictive preventive measure as twenty-four-hour house arrest. 34. On 1 December 2015 the Kyiv City Court of Appeal rejected both appeals and upheld the ruling of 6 November 2015. It agreed with the investigating judge that there were no reasons for applying pre-trial detention in the circumstances of the applicant ’ s case and that house arrest was sufficient. At the same time, the appellate court held that there was material in the case file confirming the existence of a reasonable suspicion that the applicant had committed a number of serious criminal offences. It was also mentioned in the appellate court ’ s ruling that the issue of the lawfulness of the applicant ’ s arrest had been duly examined by the first-instance court. 35. On 7 December 2015 an ambulance was called for the applicant and he was admitted to the “Family Medicine Clinic”, a private hospital in Dnipropetrovsk. He underwent inpatient treatment for a hypertensive crisis, acute coronary syndrome and unstable angina pectoris until 14 December 2015. 36. On 8 December 2015 the Dnipropetrovsk Regional Police Department sent the PGO a report on the electronic tracking device which the applicant had been obliged to wear in the context of his house arrest. It was observed that there had been thirty-eight alerts from that device, thirty-five of which could be explained by “the technical imperfection of the device, the architectural particularities of the building, as well as the presence of a lift in the suspect ’ s flat”. As regards the remaining alerts, two of them were explained by the fact that the applicant had been transported for participation in court hearings and one – by his hospitalisation ( see paragraph 35 above). 37. On 25 December 2015 the Kyiv City Prosecutor ’ s Office, to which the PGO had entrusted the investigation, applied to the investigating judge of Kyiv Dniprovskyy District Court (“the Dniprovskyy Court”) for replacement of the applicant ’ s house arrest by pre-trial detention. In addition to the reasons advanced in the initial application on 2 November 2015 ( see paragraph 20 above), the investigator submitted that while being under house arrest, the applicant had been evading various procedural measures by “abusing his right to medical assistance ... and continuously staying in private medical institutions”. The investigator observed that the applicant ’ s father was the founder of the “Family Medicine Clinic”. In the investigator ’ s opinion, the objectivity of any conclusions by that hospital ’ s staff members was therefore questionable. The police had registered thirty ‑ eight alerts from the applicant ’ s electronic tracking device, which could indicate that he had been trying to tamper with it. Furthermore, according to the investigator, one of the witnesses had stated that the applicant, through his lawyers, had been threatening him so that he would change his statements in the applicant ’ s favour. 38. On 28 December 2015 the Dniprovskyy Court allowed the investigator ’ s application and ordered the applicant ’ s pre-trial detention for an initial period up to 25 February 2016 (for a detailed overview of the events from 25 December to 28 December 2015, see paragraphs 60-79 below). The text of the ruling was limited to the operative part and a statement that the investigating judge needed more time to prepare the reasoning. 39. It appears from some documents in the case file that immediately after the hearing of 28 December 2015, the applicant was placed in detention in the pre-trial investigation unit of the Security Service of Ukraine. At the same time, some other documents suggest that the applicant was continuing his inpatient medical treatment in the Amosov Institute ( see paragraph 60 below) until 15 January 2016. 40. On 29 December 2015 the Dniprovskyy Court issued the full text of the ruling. In justifying the applicant ’ s remand in custody, the investigating judge reiterated the investigator ’ s arguments as regards the existence of a reasonable suspicion of the applicant ’ s involvement in a number of criminal offences, the gravity of those offences, as well as the applicant ’ s friendly relations with officials of law-enforcement, judicial and other authorities ( see paragraph 20 above). The judge also held as follows: “... following the judicial examination [of the application], the investigating judge considers it established that the accused has not complied with the obligations [inherent in] house arrest, which was [previously] applied to him. The arguments of the prosecution that none of the more lenient preventive measures ... would be able to prevent the risks indicated in the application are well-founded.” 41. The applicant appealed. He submitted that the above decision had been unlawful and arbitrary, and that no alternative, less intrusive, measures had been considered. He also complained that, although he was undergoing inpatient medical treatment following an operation and there had been no urgency to examine the investigator ’ s application, the judge had conducted excessively long hearings, including at weekends and during the night. 42. The applicant was held in a metal cage during the court hearings of 13, 22 and 25 January 2016. Subsequently, that cage was replaced by a transparent box. 43. On 10 February 2016 the Kyiv City Court of Appeal allowed the applicant ’ s appeal in part: it quashed the ruling of 28 December 2015 and delivered a new one, still replacing the applicant ’ s house arrest by pre-trial detention, but this time until 23 February 2016. The appellate court upheld the first-instance court ’ s findings and reasoning. It considered, however, that the starting point of the applicant ’ s detention was to be calculated from 26 December 2015 ( see paragraph 66 below). 44. On 17 February 2016 the Dniprovskyy Court extended the applicant ’ s pre-trial detention until 15 April 2016. It noted that the investigation had not yet been completed, whereas the gravity of the charges against the applicant and the risks already established continued to justify his detention. 45. The applicant appealed. He submitted, in particular, that the investigating judge had not considered any alternative, less intrusive, preventive measures. Furthermore, the applicant observed that not a single investigative measure had been carried out since he had been placed in pre ‑ trial detention. 46. On 10 March 2016 the criminal charges against the applicant were slightly changed: namely, the charge of aggravated car theft ( see paragraph 13 above) was excluded from the indictment. 47. On the same date the applicant signed a friendly settlement agreement with R. ( see paragraphs 12 and 13 above). The applicant pleaded guilty of R. ’ s kidnapping on 14 August 2014 and expressed remorse. The parties considered the following penalty in respect of the applicant to be justified: three years ’ restriction of liberty (that is, detention in a semi-open prison near his place of residence) suspended for a probation period of one year and six months. That agreement would subsequently be approved by a court ( see paragraph 51 below). 48. Still on 10 March 2016 the charge concerning R. ’ s kidnapping was severed in a different set of proceedings. The other charges remained within proceedings no. 52 ( see paragraphs 13, 17 and 23 above). 49. On 15 March 2016 the Kyiv City Court of Appeal rejected the applicant ’ s appeal against the decision of 17 February 2016 extending his pre-trial detention ( see paragraph 44 above). As stated in the appellate court ’ s ruling, the fact that the investigating judge had decided that pre-trial detention was the most appropriate preventive measure did not mean that no alternative measures had been considered. As regards the applicant ’ s submission that no investigative measures had been carried out for a long time, the Court of Appeal stated that that circumstance provided no grounds for quashing the decision of the investigating judge to extend the applicant ’ s detention. It was observed that it was open for the applicant to complain of any omissions by the prosecution if he wished to do so. 50. On the same date the applicant applied to the Dniprovskyy Court for the preventive measure in respect of him to be changed from pre-trial detention to twenty-four-hour house arrest, on the grounds that his elderly mother was seriously ill and required permanent care. The investigating judge examined and allowed that request on the same day. He noted that that new argument had been considered neither in the earlier decision of 17 February 2016, nor in the appellate court ’ s ruling of 15 March 2016 ( see paragraphs 44 and 49 above). Accordingly, the Dniprovskyy Court placed the applicant under twenty-four-hour house arrest, without an electronic tracking device, until 15 April 2016. That decision was upheld on appeal on 14 April 2016. 51. On 21 March 2016 the Dnipropetrovsk Kirovskyy District Court approved the friendly settlement agreement between the applicant and R. ( see paragraphs 12 and 13 above). As a result, it found the applicant guilty of R. ’ s kidnapping following a prior conspiracy and sentenced him to three years ’ restriction of liberty suspended for a probation period of one year and six months. 52. On 14 April 2016 the Dniprovskyy Court extended the applicant ’ s house arrest until 30 April 2016, in the framework of the criminal proceedings against him, which were still ongoing ( see paragraph 48 above). It was noted in the ruling that there remained a considerable number of investigative measures yet to be carried out, and that the gravity of the charges against the applicant and the risks established earlier continued to justify his detention. 53. On 29 April 2016 there was another such extension, this time until 27 June 2016. 54. On 7 June 2016 the Dniprovskyy Court replaced the applicant ’ s house arrest by an undertaking not to abscond, following a request by the applicant for leave to undergo medical treatment in Israel. The new preventive measure was applicable until 27 June 2016. On the same day the investigating judge allowed the applicant ’ s request for leave to travel to Israel. 55. On 16 June 2016 the Dniprovskyy Court extended the applicant ’ s undertaking not to abscond until 10 August 2016. 56. On 5 August 2016 the criminal charges under Article 255 § 1 (creation of a criminal organisation), Article 349 (taking a public official hostage), Article 191 § 5 (embezzlement of funds of a charity organisation by an organised group) and Article 157 § 3 of the Criminal Code (aggravated interference with work of an electoral officer) were severed in a separate set of proceedings registered under no. 42016000000002043 in the Unified register of pre-trial investigations (hereinafter referred to as “no. 43”). No further information is available as regards the above ‑ mentioned procedural step. Nor is it clear what charges, if any, remained outstanding within proceedings no. 52 (see, in particular, paragraph 48 above and paragraph 59 below). 57. On 11 August 2016 the Pecherskyy Court refused to further extend, at the PGO ’ s request, the preventive measure in respect of the applicant (the undertaking not to abscond). The investigating judge noted that the term of that measure had expired on 10 August 2016 and that it could not therefore be extended. 58. On 11 September 2017 the PGO discontinued criminal proceedings no. 43 against the applicant ( see paragraph 56 above) for lack of evidence of his guilt. Namely, the prosecution concluded that there was insufficient evidence to accuse the applicant of creating and managing a criminal organisation, taking the public official V. hostage, embezzlement of funds of a charity organisation by an organised group and aggravated interference with the work of an electoral officer. 59. The Government indicated in their observations, without providing any details, that as of April 2018 criminal case no. 52, in which the applicant had “no procedural status”, was still ongoing. Without contesting that submission as such, the applicant pointed out that all the charges against him had been dropped. C. Events of 25 to 28 December 2015 1. 25 December 2015 60. The applicant was admitted to the Amosov National Institute of Cardiovascular Surgery (“the Amosov Institute”) for a medical examination. 61. At about 2 p.m. the chief doctor of the Amosov Institute informed the mass media that the applicant ’ s examination would continue for about two hours. At about 3 p.m. a spokesperson for the UKROP party informed the public that an investigator was waiting for the applicant near the hospital ward with a view to serving him with a copy of the application for a change of preventive measure (pre-trial detention instead of house arrest – see paragraph 37 above). 62. A panel of doctors examined the applicant and diagnosed him with ischemic heart disease, hypertensive crisis, acute coronary syndrome and unstable angina pectoris, and decided that an urgent coronary stent angioplasty (a percutaneous coronary operation to reopen clogged arteries, combined with the placement of a small wire-mesh tube called a stent to help prop the artery open) was required. The operation was carried out immediately, and two stents were placed in the applicant ’ s heart arteries. 63. By about 9 p.m. the operation had been completed and the applicant was transferred to an intensive-care ward. 64. At 10.15 p.m. the investigator tried to serve the applicant with a copy of his application for a change of preventive measure, once the latter had been transferred from the intensive-care to an ordinary ward. The applicant refused to accept it, referring to his weak health, the late hour and the absence of his lawyers. 2. 26 December 2015 65. At 9.03 a.m. the investigating judge of the Dniprovskyy Court opened a hearing for the examination of the investigator ’ s application. The applicant ’ s lawyers informed the court that their client had undergone heart surgery and was receiving post-operative inpatient treatment in the Amosov Institute. They stated that that treatment would continue for about seven to ten days. The investigator, in turn, insisted that there was nothing to prevent the applicant from appearing before the court. 66. At 11.47 a.m. the judge adjourned the hearing until 3 p.m. and ordered the applicant ’ s detention with a view to securing his compulsory attendance. 67. At 3.07 p.m. the applicant was delivered to the court premises in a wheelchair and with a medication infusion device. He was placed next to a metal cage in the hearing room. Doctors of the Amosov Institute and the emergency medical service were present and monitored his condition. At 3.30 p.m. a doctor of the emergency medical service examined the applicant and reported that the latter had a rapid pulse rate and high blood pressure. 68. At 5.21 p.m. the investigating judge allowed a request from the applicant ’ s lawyers for an immediate forensic medical examination of their client in order to establish his state of health and to decide whether he was fit to participate in court hearings. As a result, the hearing was adjourned until 8.30 p.m. and the applicant was taken back to the Amosov Institute. 69. At 8.30 p.m. the investigating judge resumed the hearing in the applicant ’ s absence. According to his lawyers, he was in an ambulance at that time because his health had deteriorated. Referring to that fact, as well as to the lack of any evidence indicating that the court ’ s ruling on the applicant ’ s forensic medical examination had been implemented, the judge adjourned the hearing until 9.30 a.m. on 27 December 2015. 70. On 26 December 2015 the chief doctor of the Amosov Institute wrote to the applicant ’ s lawyer, in reply to an enquiry from the latter, saying that the applicant required post-operative inpatient treatment and monitoring by a cardiologist. The doctor said that it was beyond his competence to answer the question whether the applicant was fit to participate in court hearings. On the same date, the chief doctor of the Amosov Institute and his two deputies replied to a similar enquiry from the investigator that the applicant ’ s health was satisfactory and that his transfer to the courtroom would not be “life-threatening”. At the same time, the doctors stated that they bore no responsibility for the health of their inpatients outside the Institute. 3. 27 December (Sunday) and 28 December 2015 71. As reported in the mass media – journalists had been permanently present in the corridors of the Amosov Institute – at about 1.30 a.m. a group of prosecution officials tried to enter the applicant ’ s ward. As it was locked, they read aloud for the applicant the ruling on his forensic medical examination and his summons for the court hearing in the morning of 27 December 2015. Two hospital attendants were made to sign a report to that effect in the capacity of attesting witnesses. 72. Early in the morning on 27 December 2015 the investigator once again went to the applicant ’ s ward. This time he read aloud the above ‑ mentioned documents to the applicant directly. The latter responded that he would prefer not to leave the hospital without having undergone a forensic medical examination. 73. From about 8 to 9 a.m. on 27 December 2015 the investigator questioned three senior doctors of the Amosov Institute about the applicant ’ s health. The doctors replied in the affirmative to the investigator ’ s question whether the applicant could be moved in a wheelchair and accompanied by doctors without any risk to his life and health. 74. At 9.38 a.m. on 27 December 2015 the judge resumed the hearing. The applicant was not present. The investigator referred to the questioning of the Amosov Institute doctors earlier that morning and requested that the applicant be brought to the court by force. The applicant ’ s lawyers objected, referring to the fact that their client had not undergone a forensic medical examination. 75. At 12.34 p.m. the judge adjourned the hearing until 3 p.m. of the same day and ordered the applicant ’ s detention with a view to securing his compulsory attendance. 76. Early in the afternoon on 27 December 2015 the applicant underwent a medical examination (for about half an hour) by two senior doctors of the Amosov Institute, with the participation of a forensic medical expert and in the presence of the investigator and the applicant ’ s lawyer. The doctors replied in the affirmative to the investigator ’ s question whether the applicant could participate in court hearings while being in a wheelchair and accompanied by doctors without any risk to his life and health. The forensic medical expert stated that he would abstain from answering that question. The details of the examination were recorded in “a medical examination report” drawn up by the investigator and signed by all the participants. 77. At 4.23 p.m. on the same day the applicant was taken to the courtroom in a wheelchair. The investigating judge ordered several brief adjournments of the hearing so that the applicant could be provided with medical care. 78. The courtroom was extremely crowded. At a certain point in the evening there were clashes in the public gallery. At about 9 p.m. on 27 December 2015 the judge decided to continue the hearing in camera. 79. The hearing continued until 1.35 p.m. on 28 December 2015. It was reported by the mass media as the longest court hearing that had ever taken place in Ukraine (in total it had lasted for about thirty hours). D. Press statements on the criminal proceedings against the applicant 80. The applicant ’ s arrest and criminal prosecution attracted considerable media attention. The defence and the prosecution, as well as a number of politicians and non-governmental organisations, made press statements in that regard. 1. Press statements by the prosecution and other public officials 81. The applicant cited the following statements made by high-ranking officials. 82. On 1 November 2015 the assistant to the Prosecutor General stated at a press briefing: “Through the fault of these organisers [pointing at the screen with the applicant ’ s photo] who created this criminal group, many people might end up under investigation or become suspects today and later stand trial. I am requesting all those who have made sense of what happened, please come to the Security Service or the Prosecutor General ’ s Office of Ukraine, share information with us and paragraph 2 of Article 255 of the Criminal Code will be applied (that is to say, those who report a crime will be absolved of criminal liability)”. 83. The applicant also cited another statement by the above-mentioned official: “This must be stopped. Fake stamps, creation of virtually private armies, fund-raising on that basis, kidnappings, possessing a private surveillance vehicle by these volunteers ...” 84. Furthermore, on 1 November 2015 the President of Ukraine stated during a televised interview: “The position is as follows. Nobody will stop on Korban. Nobody is immune to criminal liability for corruption-related offences. This concerns both the new team in power ... and the old team ... I underline that Ukraine will soon hear new names of those to face charges.” 85. On 2 November 2015 the Head of the Security Service of Ukraine said in the course of a press statement: “Why was that fund needed for the leaders of the organised criminal group, which included at the time, of course, Gennadiy Olegovych [the applicant], a respectful gentleman, together with [others]? ... This was a criminal group specialising in kidnappings ...” 86. On 29 December 2015 the investigator stated at a briefing: “Please show the following slide. This is [a bakery plant], which has also been illegally seized by the criminal group under the leadership of Korban Gennadiy Olegovych.” 87. On 22 January 2016 the assistant to the Prosecutor General stated to the press: “... the criminal group under Korban ’ s leadership, which, according to the information already provided to you, has been involved in a number of criminal activities, such as kidnappings, the embezzlement of funds, illegal arms handling and so on ...; While the entire country was consolidating forces in volunteer organisations and patriotic movements in order to help the Ukrainian military in the East ..., unfortunately, the criminal group, with Gennadiy Korban in the lead, was involved in the most grievous crimes, using as a cover patriotic or volunteering slogans; ... In fact, this criminal group under the leadership of Gennadiy Korban was financed in parallel with certain political projects.” 2. Press statements by Ukrainian political parties 88. On 31 October and 1 November 2015 three parliamentary political parties made public statements regarding the applicant ’ s arrest of 31 October 2015. 89. The “Batkivshchyna” political party led by Yuliya Tymoshenko (which was in the ruling coalition until February 2016) stated as follows: The All-Ukrainian Association ‘ Batkivshchyna ’ is concerned about the arrest of Gennadiy Korban, the leader of the ‘ UKROP ’ party “ ‘ Batkivshchyna ’ is not a political ally of the ‘ UKROP ’ party. We do not share views on various matters. Moreover, we are strongly against combining business with politics. However, having regard to the fact that those who had been shooting the Maidan protesters and who had been involved in large-scale corruption in the time of Yanukovych have not been punished until now, the arrest of the leader of the ‘ UKROP ’ party, which has entered several regional councils as a result of the local elections, appears to be selective justice and political repression. We have information that searches are being carried out at [the offices of] members of parliament from the ‘ UKROP ’ party, which is inadmissible and against the law. Such actions against a political force raise many questions in society which remain unanswered. In this context, ‘ Batkivshchyna ’ demands that the Prosecutor General and the Head of the Security Service of Ukraine appear at the plenary session of the Verkhovna Rada of Ukraine on Tuesday. They must inform the members of parliament and society about the grounds for the arrest of the leader of the ‘ UKROP ’ party Gennadiy Korban and prove the absence of political impetus behind the actions of law-enforcement officials. ...” 90. The “Samopomich” political party led by Andriy Sadovyy (which was in the ruling coalition at the material time and left it in February 2016) stated as follows: Reversion to political repression leads to collapse of the state – ‘ Samopomich ’ “ The ‘ Samopomich Union ’ political party believes that the searches in the office of the member of parliament Borys Filatov and the arrest of a fellow party member amount to an attempt to return Ukraine to the times of political repression of Viktor Yanukovych. While the enemies of Ukrainian statehood are still not brought to liability, law enforcement agencies continue arresting dozens of volunteers who are defending Ukraine in the war for independence. We strongly oppose selective justice. The facts pursuant to which Gennadiy Korban is being accused today have been known both to society and to the law-enforcement authorities for a long time. The activities for which it was necessary to punish [him] had been going unnoticed by the prosecutor ’ s office and remained unpunished in the eyes of the public. However, only now, when Gennadiy Korban has become a member of a political party which is harshly criticising the actions of the President, has his past become the reason for his arrest. Therefore, it is obvious that the real reason for his detention is political persecution. Everyone must be held accountable for their actions, but this must be done in a timely manner, not when it is politically beneficial for somebody. The policy of ‘ friends are assisted, enemies – prosecuted ’ led to the collapse of the ex-president. Attempting to continue this policy endangers Ukrainian statehood amidst the continuous war for its independence. ‘ Samopomich ’ urges the President, the Prime Minister, [and] their colleagues in Parliament to immediately dismiss the Prosecutor General and to secure the appointment of an independent successor who will begin to administer justice to all corrupted officials and traitors in Ukraine.” 91. The “Radical Party of Oleh Lyashko” (which had been in the ruling coalition until September 2015) posted the following statement on its website: Lozovyy: Korban ’ s arrest means the regime ’ s agony “ The People ’ s Deputy of Ukraine, the deputy leader of the opposition faction of the ‘ Radical Party of Oleh Lyashko ’ Andriy Lozovyy informed by telephone the ‘ 112 ’ [television] channel about the continuation of political repression in Ukraine. ‘ Certainly, the arrest of Gennadiy Korban means the agony of the totalitarian regime of Poroshenko ’, stated Lozovyy. The member of parliament has pointed out that criminal cases are being fabricated against patriots only .... That being so, nobody from [those from the previously ruling political party] implicated in robbing the country and murdering the Heaven ’ s Hundred [persons killed during the protests in 2013-14] has been arrested. ...” 3. Other public statements and newspaper articles 92. On 1 November 2015 the Kharkiv Human Rights Protection Group published an article on its website entitled “Ukrainian political party leader detained”. It stated, in particular: “There may well be valid grounds for bringing criminal charges against Gennady Korban and for bringing them specifically now. There is, however, a huge weight of distrust among Ukrainians following the politically motivated trials under Viktor Yanukovych, the failure thus far to properly investigate crimes committed during Euromaidan and to ensure that those who seriously compromised themselves are, at the very least, removed from responsible posts in the judiciary and law-enforcement bodies. Under such circumstances any prosecution will inevitably raise questions, and it is to be hoped that the authorities understand that an efficient and maximally transparent investigation will do more to restore trust than public assurances that there ’ s not a whiff of politics.” 93. The applicant also referred to several articles in Ukrainian newspapers suggesting that his arrest had been politically motivated. | This case mainly concerned the arrest of the applicant, a well-known politician, following several sets of criminal proceedings brought against him. The applicant alleged in particular that his arrest on 31 October 2015 and re-arrest on 3 November 2015 had been unlawful and arbitrary. He also complained that his pre-trial detention and house arrest had not been sufficiently justified. He further alleged that the real reasons for his criminal prosecution and deprivation of liberty had been political, in particular because he had become a rival to the ruling party and his new political party had been sharply critical of those in power. |
283 | Prevention of terrorism | 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 complained in particular about the search of their homes during their detention. |
797 | Risk of ill-treatment in case of expulsion or extradition | I. THE CIRCUMSTANCES OF THE CASE 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. The applicant is an Afghan national from Nangarhar province in eastern Afghanistan who was born in 1979 and lives in the United Kingdom. 8. He arrived in the United Kingdom on 30 August 2010 and claimed asylum on 1 September 2010. The basis of his claim was that he would be arrested and killed by the Afghan authorities because, after the death of his father, he had taken over the role of the military commander of 25 men for Hizb-i- Islami. He also claimed that Hizb-i- Islami would force him to become a suicide bomber. Finally, he claimed that he had been seriously injured during the course of a rocket launch in Afghanistan four years earlier and had been left disabled. He relied on the fact that his lower right leg and penis had both been amputated and he had a false limb; that his left leg and right hand had been seriously injured; and that he suffered from depression. 9. On 17 September 2010, his asylum application was refused by the Secretary of State. 10. First, due to the inconsistencies in the applicant ’ s claim and the vagueness of his account, it was not accepted either that the applicant ’ s father had ever been involved with Hizb-i- Islami or that the applicant had ever been a Hizb-i-Islami commander. 11. Second, it was not accepted that he would be of any adverse interest to the Afghan authorities upon return given, inter alia, that he had not demonstrated any Hizb-i- Islami involvement; that he had remained in hospital for two months after the rocket attack without any problems; that he had returned from hospital to his home village where he had lived for six months without any problems from the authorities; and that, in any event, a number of ex Hizb-i-Islami members occupied high positions within the Afghan Government and the objective evidence demonstrated that even former commanders did not have any problems with the Afghan authorities if they made it clear that they were no longer working with Gulbuddin Hekmatyar (Hizb-i-Islami ’ s leader). 12. Third, it was not accepted that he would be at risk from Hizb ‑ i ‑ Islami given that he had claimed that they had supported him when he had been injured; that they had provided him with funds to travel to the United Kingdom; and the fact that, in his original screening interview with the United Kingdom immigration authorities, he had only made reference to his fear of the Afghan authorities and had not mentioned any risk from Hizb-i- Islami. 13. The Secretary of State did not consider that the absence of a medical report on the applicant ’ s physical injuries would prejudice his asylum application from being decided fairly because it was not disputed that his injuries existed and any report would not be able to corroborate how his injuries had been sustained. Further, it was not considered that the applicant ’ s disabilities could support his claim to be at risk upon return because the applicant himself was uncertain as to who had been responsible for the rocket attack which had caused his injuries. 14. Although it was acknowledged that the medical facilities in Afghanistan were limited and underdeveloped, it was noted that the applicant had previously received hospital care there and it was considered that any further medical care would similarly be available to him upon return. Additionally, it was noted that the applicant ’ s family remained in Afghanistan and it was considered that there was no reason to suggest that they would not adequately support and assist him upon return. Consequently, it was not accepted that his case was “very exceptional” or that it would cross the high threshold of severity such as to engage Article 3 within the meaning of N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008. 15. Finally, with reference to the country guidance case of GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 (see paragraphs 28 - 29 below ), it was not accepted that the applicant would be personally at enhanced risk of indiscriminate violence in Afghanistan as a person with an amputated limb. To that end, the Secretary of State noted that there were an estimated 800,000 mobility impaired persons in Afghanistan of whom 40,000 were limb amputees. The applicant had shown the resolve and ability to travel to the United Kingdom via various methods of transport and had resided in Afghanistan for four years following his injuries. As such, he had not shown that he would be at enhanced risk or that there was no viable relocation option open to him in Afghanistan. 16. The applicant appealed against the refusal of his asylum claim claiming that his return to Afghanistan would violate, inter alia, Article 3 of the Convention. In his appeal statement, he claimed that he had no one in Afghanistan to support him and that he would find life extremely hard in Afghanistan. He claimed that he had lost contact with his two sisters who were both married and living with their own families in Afghanistan. 17. On 4 October 2010, the First-tier Tribunal ( Immigration and Asylum Chamber ) (“the First-tier Tribunal” ) dismissed the applicant ’ s appeal for substantially the same reasons as the Secretary of State as set out above. The Immigration Judge accepted certain aspects of the applicant ’ s claim stating: “103. I accept that he is an Afghan national who may well have come from a village in Nangarhar province and may well have spent the early part of his life as a farmer. I accept that he may well be a single man and that he has clearly suffered certain severe injuries as a result of an accident which may well have involved a mortar, rocket or some form of bomb. I accept that he does have an amputated lower leg with a false limb together with the other injuries he has described. 104. I accept that he made his way to the UK and this may well have been over a six month period in a variety of modes of transport including a lorry. I accept that he will have paid an agent for this and that sum may well have been in the region of 15,000 US dollars. I accept that it may have been impractical for him to make a separate application for asylum en route. It is likely that he would have been under the control of the agent. 105. However, beyond these findings I cannot go. I cannot be satisfied as to any other details of the appellant ’ s case. I cannot be satisfied that he has established that he was a commander for the Hizb-e-Islami and for approximately a year and thereafter he remained with them after a brief stay with his family in the family village until he decided to leave, when it was suggested that he became a suicide bomber.” 18. The Immigration Judge found, in the alternative, that even if the applicant had at some stage been a member of the Hizb-i- Islami, he had not shown that he would not be able to return to Afghanistan and make his peace with the Afghan authorities as someone who had left Hizb-i- Islami a number of years earlier. The Immigration Judge considered that there was no reason why the applicant could not return to Afghanistan to resume living either in Nangarhar or in Kabul without any fear from the authorities. 19. In relation to the applicant ’ s disability, the Immigration Judge commented that it might “well be that there would be limited prospects for him in Afghanistan in view of his injuries”, and stated that: “ [ H] e would have certain disadvantages greater than others by reason of his disability. But as referred to in the objective evidence he would not be alone with 80,000 amputees and 400,000 rendered disabled by the effects of war. This may not be a comforting statistic but it demonstrates how persons with such disadvantages are continuing to exist in Afghanistan .” 20. Finally, the Immigration Judge did not accept that the applicant had demonstrated that he would be more susceptible to indiscriminate violence by reason of his disability noting that: “[T] he fact that he has survived in Afghanistan for three to four years without any indiscriminate violence overcoming him demonstrates that he has managed to cope with his disability in the political unrest that exists. The fact that he managed to come the whole of the way from Afghanistan in a variety of means of transport indicates that he is a resilient man who has overcome difficulties in a practical way. He may well have received assistance from those sympathetic to them. There is no reason to think that he will not continue to do so throughout his life.” 21. On 7 October 2010, a Senior Immigration Judge of the First-tier Tribunal refused permission to appeal because the grounds of appeal only pleaded to be allowed to remain in the United Kingdom but did not identify any arguable error of law and there was no other good reason to grant permission to appeal. 22. On 13 October 2010, the Upper Tribunal of the Immigration and Asylum Chamber (“the Upper Tribunal”) refused permission to appeal because no arguable error of law could be found in the Immigration Judge ’ s determination. | Seriously injured during a rocket launch in Afghanistan in 2006 and left disabled following several amputations, the applicant arrived in the United Kingdom on 30 August 2010. On 1 September 2010, he applied for asylum alleging that his removal to Afghanistan would expose him to ill-treatment. The applicant unsuccessfully complained that his removal to Afghanistan would breach Article 3 (prohibition of inhuman or degrading treatment) of the Convention on two grounds linked with his disability: first, he asserted that disabled persons were at higher risk of violence in the armed conflict currently underway in Afghanistan; and, second, that, since he had lost contact with his family, he would face a total lack of support as well as general discrimination. |
309 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1956 and lives in Istanbul. 6. The applicant was the director of the Eminönü district branch of HADEP ( Halkın Demokrasi Partisi – the People ’ s Democracy Party) in Istanbul at the time of the events giving rise to the application. 7. On 24 June 2000 a number of trade unions organised a demonstration in Istanbul. During the demonstration, some participants carried signs and chanted slogans in support of Abdullah Öcalan, the leader of the PKK (Kurdistan Workers ’ Party), an illegal armed organisation. These demonstrators were identified by the police as members of HADEP. 8. On 26 June 2000 the public prosecutor at Istanbul State Security Court applied for a warrant to search the offices of four branches of HADEP to obtain incriminating evidence concerning the PKK. 9. On the same date the Istanbul State Security Court issued a search warrant. 10. That same evening police officers from the Istanbul police headquarters conducted a search of the Eminönü branch office of HADEP. The search protocol, which was signed by the applicant, indicated that illegal publications and flags and symbols of the PKK had been found there, together with pictures, articles and books pertaining to Mr Öcalan. 11. On the same date the applicant was taken to the Istanbul police headquarters for questioning. The police officers informed the applicant of his right under Article 135 (3) of the former Code of Criminal Procedure to request a lawyer. However, the applicant did not ask for a lawyer. In his statement, the applicant contended that, although he was the director of the Eminönü district office of HADEP, he was not always present at the office and that he had not been aware of the existence of the pictures and symbols regarding Mr Öcalan and the PKK found in the office. He similarly denied responsibility for the illegal publications and books which had been found on the premises, which he claimed had been brought in by publishers or other persons visiting the office without his knowledge. He claimed that whenever he came across similar pictures and symbols, he requested their removal. This statement was signed by the applicant. 12. On 27 June 2000 the applicant was questioned by the Istanbul public prosecutor, to whom he repeated the statement he had previously made to the police. The applicant also waived his right to request a lawyer before the public prosecutor. 13. On 30 June 2000 the Istanbul public prosecutor filed a bill of indictment against the applicant, charging him with praising and condoning acts punishable by law under Article 312 § 1 of the former Criminal Code. 14. On 19 January 2001 the Istanbul Criminal Court held the first hearing. At the end of the hearing, to which the applicant attended, the court decided to hold the next hearing on 15 June 2001. 15. On 15 June 2001, at the second hearing, the Istanbul public prosecutor presented his opinion ( esas hakkında mütalaa ) to the first ‑ instance court in the absence of the applicant. In his opinion, the public prosecutor advised that the court should find the applicant guilty as charged. The Istanbul Criminal Court accordingly convicted the applicant at the end of the hearing, and sentenced him to six months ’ imprisonment and a fine of 91,260,000 old Turkish liras (TRL) [1]. In its judgment the domestic court held that the applicant ’ s defence lacked credibility and that the display of symbols and pictures pertaining to the PKK and Mr Öcalan in the party building amounted to the offence of praising and condoning acts punishable by law. 16. Through his lawyer the applicant appealed against this judgment. He claimed that he had not been duly reminded of his right to request a lawyer under Article 135 of the Code of Criminal Procedure during his questioning. He further argued that he had missed the hearing as he was delayed in traffic and the first ‑ instance court had taken its decision in his absence without giving him the opportunity to defend himself against the allegations of the public prosecutor. 17. On 5 June 2002 the Court of Cassation quashed the fine imposed, but upheld the remainder of the judgment. On 11 July 2002 this decision was deposited with the registry of the first-instance court. 18. On 31 January 2003 the applicant started serving his sentence. On 13 April 2003 he was released on parole. | This case concerned the complaint by a local leader of a political party that his conviction on account of illegal pictures and publications found in the office of his party had amounted to an unjustified interference with his right to freedom of expression. |
311 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 4. At the time of the events giving rise to the present application, the applicants lived in Istanbul and their children attended different public elementary schools. 5. On unspecified dates in December 2001 the applicants (save for Mr Yılmaz Yavuz) each sent petitions to the Bağcılar, Esenler and Kadıköy Education Directorates with a request for their children to be provided with education in Kurdish in their respective elementary schools. It appears that similar petitions were submitted by many other parents of Kurdish ethnic origin around the same time. 6. According to the examples submitted by the applicants, the petitions were worded, with slight variations, as follows: “I want my child who is studying at ... school to receive education in Kurdish, which is his [her] mother tongue, in addition to education in Turkish, at school ... ” 7. On receipt of the petitions the relevant education directorates informed the Istanbul Security Directorate, which brought the matter to the attention of the principal public prosecutor ’ s office at the Istanbul State Security Court. 8. On 28 December 2001 the public prosecutor asked the Anti-terrorism branch of the Istanbul Security Directorate to identify the names and addresses of the persons who had petitioned the Bağcılar and Esenler Education Directorates with a request for education in Kurdish. It appears that on an unspecified date the same instruction was given in relation to the petitions lodged with the Kadıköy Education Directorate. 9. On 8 January 2002 the public prosecutor requested a warrant authorising a search of the homes of forty people, including the applicants, who had submitted petitions. The public prosecutor considered that the petitions in question had been made on the instructions of the PKK (Workers ’ Party of Kurdistan), an illegal armed organisation, and wished to collect relevant evidence from the petitioners ’ homes. The Istanbul State Security Court granted the public prosecutor ’ s request that day. 10. On 9 January 2002 the public prosecutor instructed the Anti ‑ terrorism branch of the Istanbul Security Directorate to conduct the searches with a view to finding evidence that could link the relevant persons to the PKK as aiders and abettors. It also instructed the Anti-terrorism branch to take the petitioners into police custody and question them in relation to the content and purpose of their petitions. The public prosecutor provided a list of questions to ask the petitioners, which mainly aimed to establish whether they had acted on the orders of the PKK. 11. Early on the morning of 13 January 2002 police officers from the Anti-terrorism branch of the Istanbul Security Directorate carried out a simultaneous search of all the properties, including the applicants ’ houses. The search and seizure reports drafted by the police and signed by the applicants and other members of the household indicated that a search warrant had been issued by the Istanbul State Security Court on account of their petitions requesting education in Kurdish for their children. The reports also stated that the public prosecutor had ordered the petitioners ’ arrest for questioning. According to these search and seizure reports, no illegal material was found in the applicants ’ homes. 12. The applicants were arrested and taken into police custody following the searches on 13 January 2002. The search and seizure reports and custody records submitted by the Government indicate that the applicants were arrested and taken into police custody at the following times : Name Time of arrest Time of placement in detention centre Esma Döner 10.30 a.m. 4 p.m. Gülperi Döner unknown 1.30 p.m. Ayşe Döner unknown 1.30 p.m. Hanım Gülün 9.45 a.m. 4 p.m. Şahide Gümüş unknown 4 p.m. Hasibe Yılmaz unknown 4 p.m. Fatma Yılmaz 8.30 a.m. 1.30 p.m. Tenzile Akyol 8.30 a.m. 2.50 p.m. Güli Akyol 9.10 a.m. 2.50 p.m. Fatma Duruşkan 10 a.m. 2.50 p.m. Meryem Peker 10.25 a.m. 4.00 p.m. Mehmet Şirin Döner unknown 4.00 p.m. Şükrüye Temüroğlu unknown 2.55 p.m. Meliha Can 10.40 a.m. 3 p.m. Halime Günana 9.45 a.m. 3 p.m. Zübeyde Yavuz unknown 2.55 p.m. Asiya Karadeniz 10.50 a.m. 2.55 p.m. Zübeyde Sapan unknown 2.55 p.m. Kudret Dağ 10.10 a.m. 3 p.m. Yılmaz Yavuz unknown 1.30 p.m. 13. On the same day the applicants were questioned by officers from the Anti-terrorism branch of the Istanbul Security Directorate. They were asked, in particular, whether they had submitted the petitions in accordance with the PKK ’ s new “civil disobedience” strategy adopted at its Sixth National Conference held between 5 and 22 August 2001. The applicants Meryem Peker and Yılmaz Yavuz claimed that they had not submitted any petitions requesting education in Kurdish to any State authorities. The remaining applicants mainly denied any affiliation with the PKK and stated that they had submitted the petitions in question so that their children could learn their parents ’ mother tongue. Some of the applicants also stated that the issue of submission of such petitions had also been discussed at the Bağcılar branch of HADEP ( Halkın Demokrasi Partisi – the People ’ s Democracy Party), a Turkish political party, which they attended from time to time. The applicants ’ signed statements suggest that interpretation services were provided to three of them ( Ayşe Döner, Fatma Yılmaz and Güli Akyol ) on request. A note drafted by the police also suggests that the applicants other than Meryem Peker, Halime Günana, Asiya Karadeniz and Yılmaz Yavuz were illiterate. 14. It appears that in the meantime, some of the applicants ’ families contacted the Istanbul Bar Association seeking legal aid for their relatives during their detention in police custody. A lawyer was accordingly appointed. On 13 January 2002 the lawyer applied to the public prosecutor ’ s office at the Istanbul State Security Court for information in relation to twelve of the applicants ( Esma Döner, Gülperi Döner, Ayşe Döner, Hanım Gülün, Şahide Gümüş, Hasibe Yılmaz, Fatma Yılmaz, Tenzile Akyol, Güli Akyol, Fatma Duruşkan, Meryem Peker and Mehmet Şirin Döner ). In particular, he enquired about their legal status and the charges they were facing, and asked to meet them and to provide them with the necessary legal assistance. On the same day he applied to the Istanbul State Security Court to have the same twelve applicants released, arguing that they were being held in custody unlawfully. 15. On the same day a judge at the Istanbul State Security Court decided that there was no need to decide on the lawyer ’ s request as there was no record of the individuals in question being detained in relation to an investigation conducted by the public prosecutor ’ s office. On 16 January 2002 the Istanbul State Security Court rejected a request by the lawyer to have the decision rendered by the judge set aside. 16. In the meantime, on 14 January 2002 the public prosecutor informed the lawyer that the applicants in question were in custody on suspicion of being affiliated with an illegal organisation, and that there was no need to decide on the lawyer ’ s request to have access to them as no authorisation for their detention in police custody had yet been issued by the public prosecutor ’ s office. 17. It appears that shortly after that decision, still on 14 January 2002, the public prosecutor authorised the applicants ’ detention in police custody for four days between 13 and 17 January 2002. The authorisation was granted in response to a request made by the Anti-terrorism branch of the Istanbul Security Directorate, who had claimed that the applicants ’ detention was needed for the completion of their files, in particular to verify whether the petitions had been submitted by the applicants themselves, whether they had any affiliation with the PKK and whether they were being searched for in connection with other offences (see paragraph 32 below for the legal basis for that authorisation). 18. At 8.30 a.m. on 17 January 2002 the applicants were taken out of the detention centre and, following a routine medical check -up, were brought before the public prosecutor at the Istanbul State Security Court. They admitted before the public prosecutor that they had written the petitions, either themselves or with the help of their children, but stated that they had no other motive than wanting their children to learn their mother tongue. They denied any involvement with the PKK. Some of the applicants claimed that they had submitted petitions after hearing about it from other parents at school or on television. According to the information provided by the Government, seven of the applicants ( Ayşe Döner, Hasibe Yılmaz, Fatma Yılmaz, Tenzile Akyol, Güli Akyol, Meliha Can and Kudret Dağ ) were assisted by an interpreter during questioning by the public prosecutor. 19. At an unspecified time on 17 January 2002 the applicants ( except for Meryem Peker, Mehmet Şirin Döner and Yılmaz Yavuz ) were brought before a judge at the Istanbul State Security Court, who ordered their release after taking statements from them. The applicants concerned were actually released following the Istanbul State Security Court ’ s order. Seven of the applicants ( Ayşe Döner, Şahide Gümüş, Hasibe Yılmaz, Fatma Yılmaz, Güli Akyol, Meliha Can and Kudret Dağ ) were assisted by an interpreter before that court. It appears that Meryem Peker, Mehmet Şirin Döner and Yılmaz Yavuz were also released that day, but the decision ordering their release was not submitted to the Court. 20. On the same day the public prosecutor filed an objection concerning the decision to release the applicants, claiming that it was evident from the statements made by them following their arrest that they had submitted the petitions in an organised manner with the aim of assisting the PKK ’ s “politicisation” process. The public prosecutor added that although the applicants appeared to have lawfully used their right to petition, in reality they were acting on the instructions of the PKK and were thus aiding and abetting that organisation. 21. On 18 January 2002 the Istanbul State Security Court upheld the public prosecutor ’ s objection in respect of the applicants Esma Döner, Hanım Gülün, Hasibe Yılmaz, Meliha Can, Şükrüye Temüroğlu, Halime Günana and Zübeyde Yavuz, and issued a warrant for their arrest. The court did not provide any reasons for its decision. 22. On 22 January 2 002 the lawyer asked the Istanbul State Security Court to set aside its decision of 18 January 2002 ordering the arrest of the relevant applicants. On 28 January 2002 the State Security Court dismissed that request, basing its decision on the nature of the offence, date of arrest, state of the evidence and contents of the case file. 23. In the meantime, on 19 January 2002 Esma Döner, Hasibe Yılmaz and Zübeyde Yavuz were arrested on the basis of that warrant. The next day they were remanded in custody. It appears that the remaining four applicants named in the warrant could not be located. 24. On 21 January 2002 the applicants Esma Döner and Zübeyde Yavuz filed objections concerning their detention on remand. 25. On 22 January 2002 the Istanbul State Security Court dismissed Esma Döner and Zübeyde Yavuz ’ s objections, basing its decision on the nature of the offence and the state of the evidence. 26. On 6 February 2002 the public prosecutor at the Istanbul State Security Court decided not to prosecute the applicant Yılmaz Yavuz because of a lack of evidence against him. 27. On the same day the public prosecutor issued an indictment against thirty-eight suspects, including the remaining applicants, accusing them of aiding and abetting an armed organisation under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act ( Law no. 3713 ) in force at the material time. In the indictment the public prosecutor stated that following the arrest and conviction of their leader Abdullah Öcalan, the PKK had set out to pursue new policies. Accordingly, at the Sixth National Conference held between 5 and 22 August 2001, it had adopted the “ Democratisation and Peace Project”, a new strategy which had involved undertaking non-violent activities of “civil disobedience” and aimed at leaving the State and its authorities in a difficult position in the international arena. The public prosecutor submitted that such organised acts of civil disobedience agreed on by the PKK had included petitioning the State authorities for education in Kurdish, dressing up in traditional Kurdish female costume, and applying to courts or population registration offices with requests for their Kurdish identities to appear on their national identity cards. When viewed against this background, the petitions in question – which had been submitted to certain authorities on predetermined dates and times – could not be considered to be individual acts. They had actually been part of an organised movement which had aimed to implement the decisions adopted by the PKK and thereby undermine the authority of the State. 28. On 12 February 2002 the first-instance court ordered the release of the applicants Esma Döner, Hasibe Yılmaz and Zübeyde Yavuz pending the criminal proceedings. 29. On 28 May 2003 the Istanbul State Security Court acquitted all the accused, including the applicants, because on the facts none of the elements of the crime of aiding and abetting an armed organisation had been present in their actions and there was no other evidence to support the allegations brought against them. The judgment became final on 5 June 2003. | At the time of the events giving rise to the present application, the 20 applicants lived in Istanbul and their children attended different public elementary schools. The case concerned the criminal proceedings brought against them for aiding and abetting the PKK (Workers’ Party of Kurdistan), after they had submitted petitions requesting that their children be taught in Kurdish. They maintained in particular that they had been subjected to criminal proceedings for using their constitutional right to file a petition, despite the absence of any provisions in domestic law criminalising such conduct. |
340 | Police violence | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1951 and lives in Bingöl. 10. On 15 October 1993 the applicant and two days later his wife, Mrs N.F., were taken into police custody in Bingöl on suspicion of aiding and abetting an illegal terrorist organisation, namely the PKK ( Workers'Party of Kurdistan ). 11. Mrs F. was held in police custody for four days, during which period she was allegedly kept blindfolded. The police officers allegedly hit her with truncheons, insulted her verbally and threatened her with rape. 12. On 20 October 1993, following her detention in police custody, Mrs F. was examined by a doctor, who reported that there were no signs of ill-treatment on her body. On the same day she was taken to a gynaecologist for a further examination. The police requested that the report should indicate whether she had had vaginal or anal intercourse while in custody. Despite her refusal, Mrs F. was forced by the police officers to undergo a gynaecological examination. The police officers remained on the premises while Mrs F. was examined behind a curtain. The doctor reported that she had not had any sexual intercourse in the days preceding the examination. 13. On the same day Mrs F. was taken to the Bingöl public prosecutor's office, where she complained about her forced gynaecological examination. The public prosecutor did not record her complaints and ordered her release. 14. On 28 October 1993 the public prosecutor at the Diyarbakır National Security Court charged the applicant and his wife with aiding and abetting members of the PKK. 15. On 23 March 1994 the Diyarbakır National Security Court acquitted the applicant and his wife for lack of evidence. 16. On 9 February 1995, the applicant and his wife complained to the Bingöl public prosecutor about their ill-treatment while in police custody. They further complained that Mrs F. had been forced to undergo a gynaecological examination without her consent. 17. The police officers denied the allegations in statements made before the Bingöl public prosecutor. They submitted that it had been necessary for a gynaecological examination to be performed in order to determine whether Mrs F. had been sexually assaulted while in police custody. They further submitted that the examination had been performed with her consent. 18. On 5 October 1995 the Bingöl public prosecutor decided not to prosecute the police officers for lack of evidence. The applicant and his wife appealed. 19. On 29 November 1995 the Muş Assize Court quashed the public prosecutor's decision on the ground that there had been insufficient examination of the evidence in the investigation file. 20. On 19 December 1995 the Bingöl public prosecutor charged three police officers with, inter alia, violating Mrs F.'s private life by forcing her to undergo a gynaecological examination. 21. On 16 May 1996 the Bingöl Assize Court acquitted the defendant police officers on the ground that the complainants had not provided sufficient convincing evidence in support of their allegations. The court held that the police officers had had no intention of subjecting the applicant's wife to degrading and humiliating treatment when they made her undergo a gynaecological examination, but were trying to protect themselves against a possible accusation of rape. The applicant and his wife appealed. 22. On 7 May 1997 the Court of Cassation upheld the Bingöl Assize Court's judgment. | In October 1993 the applicant and his wife were taken into police custody on suspicion of aiding and abetting the PKK (Workers’ Party of Kurdistan), an illegal organisation. The applicant’s wife was held in police custody for four days. She alleged that she had been kept blindfolded and that police officers had hit her with truncheons, verbally insulted her and threatened to rape her. She was examined by a doctor and taken to a gynaecologist for a further examination. The police officers remained on the premises while she was examined behind a curtain. In March 1994 the applicant and his wife were acquitted. In 19 December 1995 three police officers were charged with violating the applicant’s wife’s private life by forcing her to undergo a gynaecological examination. They were acquitted in May 1996. The applicant alleged that the forced gynaecological examination of his wife had breached her right to respect for private life. |
630 | Employees | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1964 and lives in Kostrena. 6. Between 1 October 2003 and 1 October 2007 the applicant was the director of a municipal utility company, KD Kostrena (hereinafter “the company”), whose sole shareholder is the Municipality of Kostrena ( Općina Kostrena). The company primarily provides public utility services such as parking, waste disposal, funeral services, maintaining green spaces, cemeteries and so forth. A. Media statements, the applicant ’ s dismissal and subsequent civil proceedings 7. In an article published in the daily Novi list of 19 September 2007, Mr M.U., who was the mayor of Kostrena Municipality and chairman of the company ’ s General Meeting ( skupština ) at the time, criticised the way the applicant performed her job. The relevant part of the article reads as follows: “ ... M.U. does not hide his dissatisfaction with the work of Mirela Marunić as head of KD Kostrena. ‘ I cannot speak for the others, but after everything that has happened, I can say that Mirela Marunić has betrayed the trust of the members of the General Meeting because she disclosed information which should only have been discussed at the General Meeting. Likewise, in the 2005 [annual] report she spoke in positive terms of building a sports hall, and I do not know what happened to make her change her mind. ’ In his words, dissatisfaction with the functioning of KD Kostrena goes beyond the current political crisis in Kostrena and the public statements of Mirela Marunić. ‘ The fact is that we had even earlier objected to Mirela Marunić ’ s work because [the company] has been stagnating for some time now and functioning as a means of transferring municipal funds. Our municipal utility company does not carry out the type of business for which it was established. For example, Žurkovo Bay was leased as a parking lot and a dry [dock] marina, and the same applies to the parking lot near Kostrenka. My question is, how does it benefit the concessionaires to have it and in addition pay rent for it? Had it stayed in our hands we would, apart from making a profit, also have had the chance to employ someone ’. M.U. does not hide his dissatisfaction. In a lengthy list of criticisms of the current director of KD Kostrena, M.U. states that he does not like the fact that she has been referred to as a member of his [political] party. He claims that he was the one who had advised her when she was appointed to the position as head of Kostrena ’ s municipal utility company not to make public statements as a member of [their political party] because someone could misinterpret [the nature of] her work and the way she came to get that position.” 8. In an article published in Novi list eight days later, on 27 September 2009, the applicant replied to the above criticisms. The relevant part of that article reads as follows: “The mayor of Kostrena, M.U., has publicly criticised the current director of KD Kostrena for having disclosed information which should only have been discussed at the General Meeting and for the company ’ s poor performance, saying it does not engage in the type of business for which it was established. ‘ They betrayed my trust by not believing me. I first informed my [political] party but there was no reaction. In particular, at a meeting held before the September session of the General Meeting [of the company] last year, I warned them of all the irregularities, the financial losses and the ruining of KD Kostrena ’ s business reputation. Then they asked me not to talk about it in the presence of D.G. [who was the only member of the company ’ s General Meeting from the ruling political party at the State level], ’ says Mirela Marunić, repeating that there are written documents in respect of all the issues she had warned the General Meeting about. As regards M.U. ’ s remark that the company has been stagnating under her leadership, she says that Kostrena Municipality, which does not have a development strategy, has itself been stagnating ... The main precondition for that ... would be, in her opinion, the resolution of property issues which remain outstanding in the case of most of the parking lots administered by Kostrena ’ s municipal utility company. Marunić illustrates this by referring to the Viktor Lenac parking lot where the municipal utility company has been charging for parking on land which was not even owned by Kostrena Municipality. ‘ The legal department of Kostrena Municipality still requires [the company] to charge for parking even though [the company] Lenac refused to do so because of unresolved property issues. That case has now gone to court, ’ warns Marunić, ‘ and a similar situation exists with the parking lot in Žurkovo and [the one] near Kostrenka, which have been leased out. ’ ‘ Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney ’ s Office. I sincerely hope that the State institutions will do their job in this case, as that will save Kostrena. Kostrena needs professionals, but they are being removed, the proof of which is the proposal to remove T.S. as a member of the General Meeting. I hope that a young and ambitious person will replace me and continue the work the municipal utility company has been doing so far. ’ ” 9. By a decision of the company ’ s General Meeting of 11 October 2007 the applicant was summarily dismissed because of the statements she had made in the media, which were regarded as being damaging to the company ’ s business reputation. The relevant part of that decision reads as follows: “On 27 September 2007 the Novi list daily published an article ... stating that the director of KD Kostrena, Mirela Marunić, had given a statement to [a] journalist of Novi list saying that KD Kostrena was acting unlawfully, that it was charging for parking where it was not allowed, that she demanded an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney ’ s Office with a view to looking into KD Kostrena ’ s operations. The director Mirela Marunić was at the time of the publication of the article ... employed as [chief executive officer] of KD Kostrena, that is, the officer who heads the company and is responsible for the consequences of her own work. Making such allegations in a daily newspaper, if those allegations are true, testifies to unlawful conduct in her job precisely because it is her duty as the officer in charge [of the company] to monitor and make sure that the utility company operates in accordance with the law. If, on the other hand, those allegations are not true but were nevertheless made in the publication that has the largest circulation in the area [of the country] then those allegations gravely harm the [business] reputation of the company because they suggest that KD Kosterna operates unlawfully. That kind of conduct, by an employee who was at the time of the publication of the statement in the daily newspaper the director of the utility company, which she headed, who makes such allegations in the media or engages in unlawful conduct, constitutes, in the opinion of the company ’ s General Meeting, totally inappropriate behaviour which tarnishes the company ’ s [business] reputation in the eyes of the public. .. Such conduct ... depicting the utility company in a negative light [constitutes] a particularly serious breach of employment-related duties, and is a particularly important fact which, taking into account all the circumstances and the interests of both contracting parties, makes the continuation of the employment relationship impossible [under section 107 of the Labour Act]. ” 10. On 22 October 2007 the applicant launched an internal challenge to her dismissal by lodging a request for the protection of her rights ( zahtjev za zaštitu prava ), a remedy which is guaranteed for every employee by the Labour Act and which employees had to use before bringing a civil action against their employer. The applicant argued, inter alia, as follows: “I contest entirely the argument that by making statements in the media I acted inappropriately and allegedly attacked the [business] reputation of the company ... The utility company is a public company which belongs to the [local] community ... It was my duty, as a member of the [company ’ s] Management, to contact the media and inform the public because it is a public company and not someone ’ s private property. I particularly emphasise that I have always given accurate information to the public. It is a well-known fact that the media show a great interest in Kostrena Municipality because of political turbulence among those heading the Municipality. However, my observations were always a defence against the media attacks directed against me by the chairman of the General Meeting. .. it is totally unclear what unlawful conduct I engaged in??? It is true that I warned about unlawful acts [by the company] but [I did so] directly to the General Meeting and the Supervisory Board. My statements were not directed against the utility company but made solely and exclusively with a view to removing any potential liability from myself. Therefore, the arguments in the dismissal decision are a twisted interpretation of the events.” 11. It appears that the applicant received no reply to her request. On 21 November 2007 she therefore brought a civil action for wrongful dismissal against the company in the Rijeka Municipal Court ( Općinski sud u Rijeci ). She challenged the decision to dismiss her and sought reinstatement. The relevant part of her statement of claim read as follows: “The defendant obviously did not properly read the [impugned] article because the plaintiff merely states some facts in it and, as an example, refers to a particular case of unresolved property issues, which is already the subject of judicial proceedings, and calls for an audit and the involvement of [the prosecuting authorities] with a view to protecting her integrity by expressly stating: ‘ Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney ’ s Office. ’ ” 12. By a judgment of 12 June 2008 the Municipal Court ruled in favour of the applicant. The court accepted that her statements in the media had been damaging to the company ’ s business reputation and as such had constituted a serious breach of employment-related duties within the meaning of section 107 of the Labour Act (see paragraph 23 below), making her summary dismissal justified. However, it ruled in the applicant ’ s favour because it found that pursuant to her employment contract, her job as director of the company had ended on 1 October 2007, when the company had been required to transfer her to another job. That meant that she could not have been dismissed from her job as director, let alone dismissed with retroactive effect, as the decision to remove her had indicated. Furthermore, since the decision to dismiss her had specifically related only to her job as director, it could not be assumed that it had also entailed the termination of her entire employment relationship with the company, including the job to which she was supposed to have been transferred after 1 October 2007. The court thus found that the dismissal had been wrongful and that the applicant ’ s employment relationship had not been terminated. It accordingly ordered that she be reinstated and assigned to another job within the company. 13. By a judgment of 14 January 2009 the Rijeka County Court ( Županijski sud u Rijeci ) dismissed an appeal by the company and upheld the judgment of the first ‑ instance court. Its reasons, however, were different. 14. It first noted that, contrary to the opinion of the first-instance court, the decision to dismiss the applicant had been aimed at terminating the applicant ’ s entire employment relationship with the company, and not only her job as director, and had been capable of having that effect. However, the County Court also disagreed with the view of the Municipal Court that the applicant ’ s behaviour, namely her statements in the media, had constituted a serious breach of employment-related duties such as to justify summary dismissal. In that respect the County Court held as follows: “... the defendant company ’ s [internal regulations] state that the business activities of the company are public [and] that the company informs the public by notifying the media of its organisation, the way and the conditions under which it operates, [and] the manner in which it provides services and runs its business. It follows that neither the [internal regulations] nor the [applicant ’ s employment] contract prohibit public statements or criticism of the defendant company ’ s business activities, which are public. Article 38 of the Croatian Constitution guarantees freedom of thought and [freedom of] expression, particularly emphasising freedom of speech and [the freedom] to speak publicly. As established ... by the first-instance court, the plaintiff ’ s public statements had been made in reaction to the statements of M.U. published a few days earlier in Novi list on 19 September 2007, where he had criticised the plaintiff ’ s work and stated that she had betrayed the trust of the members of the General Meeting by disclosing information that should only have been discussed at the General Meeting, [had said] that the [company] was stagnating, that it did not operate the type of business for which it had been established [and so on] ... ... Therefore, in this court ’ s view, the plaintiff ’ s actions should be interpreted as [the exercise of] her right to speak publicly and the right to freedom of thought, which are rights guaranteed by the Croatian Constitution. Therefore, in the view of this court, the plaintiff ’ s conduct does not constitute a serious breach of employment-related duties as envisaged in section [107] of the Labour Act as grounds for summary dismissal. Specifically, in the opinion of this court, the plaintiff ’ s statements are to be seen as [a way of] informing the public of irregularities in the activities of the defendant company as a public institution; [the statements] were given in the public interest and in good faith and constitute a value judgment rather than a serious breach of employment-related duties. The first-instance court therefore correctly applied the substantive law when finding the dismissal wrongful.” 15. The company then lodged an appeal on points of law ( revizija ) against the judgment of the County Court. 16. By a judgment of 6 October 2009 the Supreme Court ( Vrhovni sud Republike Hrvatske ) reversed the County Court judgment and dismissed the applicant ’ s action. The relevant part of that judgment reads as follows: “The findings of the lower courts cannot be accepted. In this particular case, the aforementioned statements by the plaintiff clearly damaged the reputation of the defendant company, since an employer whose leadership structures tolerate and encourage criminal activities certainly cannot have a good reputation or be trusted in the business world. Therefore, the behaviour of the plaintiff, in stating on 27 September 2007 in the Novi list daily ... that the defendant company, which she heads, had acted illegally, namely by charging for parking when it was not allowed [to do so], asking that the [company] be audited, and also seeking the intervention of [the prosecuting authorities] with a view to verifying the activities of the defendant company, has significant repercussions on the employment relationship between the parties and gives the employer a justified reason for terminating the employment contract, within the meaning of section [107] of the Labour Act. Having regard to the given circumstances, it is precisely this which is a particularly important fact making the continuation of employment impossible ... In this particular case, the depiction by the employee of the employer ’ s business activities in an extremely negative light in the media is a particularly important fact of the kind which gives the employer a justified reason to terminate the employment contract. The plaintiff ’ s reliance on her duty to speak publicly is unfounded. In this regard it is to be noted that the plaintiff could only have pursued her intention to prevent abuses and protect the property of the defendant company by turning to the relevant State authorities and lodging a complaint with them, which would have resulted in that information being available to the press and other media, and which could not have served as a reason for her dismissal.” 17. The applicant then lodged a constitutional complaint, alleging, inter alia, a violation of her freedom of expression. In so doing she explicitly relied on Article 38 of the Croatian Constitution and Article 10 of the Convention. 18. On 17 February 2011 the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant ’ s constitutional complaint and served its decision on her representative on 14 March 2011. The relevant part of that decision reads as follows: “The Constitutional Court observes that the complainant justifies her conduct towards the employer (namely, her media statements), on account of which the employer summarily dismissed her, by arguing that she had merely been calling for the supervision of her actions in the company by the relevant authorities. That argument is incorrect [having regard to her statements in] the article published in Novi list of 27 September 2009 ... The Constitutional Court notes that the right ‘ of a citizen ’ to publicly express his or her personal opinions cannot justify a breach of employment-related rights and obligations stemming from an employment contract and the relevant legislation.” B. Other relevant facts 19. Meanwhile, on 21 June 2002 KD Kostrena had brought a civil action in the Rijeka Municipal Court against the water and sewage utility company ( Komunalno društvo Vodovod i kanalizacija d.o.o. ) of Rijeka seeking to be declared the owner of the Viktor Lenac parking lot in Kostrena. By a judgment of 3 March 2008 the court dismissed KD Kostrena ’ s action. The final outcome of those proceedings is unknown. However, an extract from the land register concerning the two plots of land that were the subject of the proceedings suggests that the water and sewage company transferred ownership of the plots to shipbuilding company Viktor Lenac on 13 February 2014. 20. On 12 February 2007 the water and sewage company brought a civil action against KD Kostrena in the same court seeking repayment of the parking fees the defendant company had collected from the Viktor Lenac parking lot. The plaintiff company claimed that KD Kostrena had been charging for parking on land owned by the plaintiff. The final outcome of those proceedings is unknown. 21. In June 2013 the applicant won municipal elections and was elected mayor of Kostrena, replacing M.U. She still holds that position at the time of the Court ’ s judgment. | The applicant, the director of a municipal company providing public utility services, was summarily dismissed from her post after making statements to the media defending herself a week after the company chairman had publicly criticised her work in a press article. The decision to dismiss her was taken on the grounds that she had made allegations to the press that were damaging to the company’s reputation. The applicant complained that her statements to the media had only been made with a view to denying the false accusations against her, and that her dismissal had been in breach of her right to freedom of expression. |
729 | Environmental risks and access to information | I. THE CIRCUMSTANCES OF THE CASE 8. The applicants are: 1) Mr Dag Vilnes, born in 1949, who lives in Tønsberg; 2) Mr Magn Håkon Muledal, born in 1953, who lives in Førde; 3) Mr Anders Lindahl, born in 1942, who lives in Avaldsnes; 4) Mr Sigurdur P. Hafsteinsson, born in 1953, who lives in Jersey ( United Kingdom ); 5) Mr Knut Arvid Nygård, born in 1961, who lives in Tananger; 6) Mr Bjørn Anders Nesdal born in 1958, who lives in Kristiansand; 7) Mr Per Arne Jakobsen, born in 1954, who lives in Larvik. The third applicant is a Swedish national, the fourth applicant is an Icelandic national and the other five applicants are Norwegian nationals. A. General background 9. After the adoption of the 1958 Convention on the Continental Shelf, the Norwegian Government proclaimed in a Royal Decree of 31 May 1963 Norwegian sovereignty over the sea floor and the ground beneath it outside Norway. This was followed up by the 1963 Act on the Exploration and Exploitation of Sub-Sea Natural Resources – the Continental Shelf Act 1963 ( kontinentalsokkelloven ). Drilling in the North Sea area started in June 1966. In this connection diving operations were carried out in part in sheltered waters from barges and smaller boats, for example in relation to the construction and equipment of drilling platforms, and in part in the open sea. During the first years the depths involved were not particularly great. In the Ekofisk oilfield the sea was approximately seventy metres deep, and in the Statfjord oilfield it was approximately 150 metres. To begin with, diving took place from oil rigs, supply ships, drilling ships or pipe-laying ships. From the mid-1970s specially built diving support vessels, operational regardless of weather conditions, were used, and after a while became the usual means. For dives down to fifty metres air gas was used, and decompression took place either in the water or at the surface. 10. For professional North Sea diving, deep and relatively short diving jobs (rarely more than one hour) were described as bounce diving. This was normally performed with a diving bell and a surface decompression chamber. Two divers would access the diving bell at the surface under regular atmospheric pressure. The diving bell would be lowered into the water and down to the work location on the seabed. When the diving bell was in position at the work location and the necessary tools had been lowered, the diving bell would be put under the same pressure as the work location, normally within minutes. The diver could then leave the diving bell and do the job. 11. Both the diving bell and the diver would be supplied with gas from tanks attached to the diving bell (normally heliox). One of the divers would perform the job while the other would serve as a combined “tender” and stand by the diver in case something went wrong. When the job had been completed the diver would return to the diving bell. Then the diving bell would be lifted to the surface and connected to a decompression chamber, where the divers would complete their decompression. Heliox would normally be replaced by air when the diving bell pressure was similar to the water pressure, at fifty metres. Generally, bounce diving was perceived as stressful, because divers had little time to do the job on the seabed and felt thermal unease (first the increased temperature when the diving bell was put under pressure, and then hypothermia when entering the water, which was five to seven degrees Celsius). 12. North Sea dives of longer duration were performed as saturation diving. The divers entered chambers at the surface (on the rig or on the diving support vessel) and were put under pressure similar to that which existed on the seabed at the work location. Then the chambers were connected to a diving bell. Two divers would leave the chamber in order to enter the diving bell, which would be lowered to the work location. The divers and the diving bell would be supplied by gas from the surface. The divers would normally wear warm water suits supplied with warm water from the surface. It normally took several hours from the time the diving bell left the chamber at the surface until it was reconnected. Subsequently, the divers were locked back into the chamber. This way of diving ensured continuous work on the seabed, while the divers could rest, sleep and eat in the chamber. After a period of work of several days or weeks, the divers were decompressed. 13. Until 1 April 1978 the Norwegian Labour Inspection Authority ( Arbeidstilsynet ), an agency ranging under the Ministry of Municipal Affairs and Labour ( Kommunal- og Arbeidsdepartementet ), was the public authority empowered and entrusted with the task of administrative supervision of diving operations and the granting of authorisation for such operations. Thereafter these functions were vested in the Petroleum Directorate ( Oljedirektoratet ), an agency under the Ministry of Oil and Energy ( Olje- og energidepartementet ). 14. The applicants were among the 350 to 400 persons who were permanently linked to Norway and who took part in diving related to the petroleum industry during the pioneer period (commonly defined as 1965 to 1990 ). After a while it became known that many of them had contracted health problems. Long- term studies carried out at the University of Bergen, the Norwegian Underwater Technology Centre ( Norsk Undervannsteknologisk SenterAS, hereinafter referred to as “NUTEC ” ) and Haukeland Hospital, both located in Bergen, showed possible connections between diving and damage to the central nervous system. Once it emerged that the compensation arrangements available covered the North Sea divers ’ situation only to a limited degree, the Ministry of Municipal Affairs appointed a commission ( Krombergutvalget ) which on 2 November 1993 submitted a report with recommendations. It was left to another commission ( Habberstadutvalget ) to follow up and coordinate their implementation. 15. On 27 November 2000 the Ministry of Social Affairs and Health proposed in a note to Parliament that divers who had experienced permanent damage to their health should be awarded an amount of up to 200,000 Norwegian kroner (NOK ) ( approximately 26,000 euros (EUR), in a lump sum as compensation, whilst emphasising that the State could not be regarded as having acted unlawfully or in a manner open to criticism, bearing in mind what was known at the time when the diving took place. On 13 June 2000 Parliament requested the Government to set up an independent commission of inquiry to assess all matters related to diving in connection with oil activities in the North Sea during the pioneer period. The Commission of Inquiry, which the Government had appointed on 2 March 2001, was led by High Court Justice Mr P.A. Lossius. On 31 December 2002 it presented its report, entitled ` The Pioneer Divers in the North Sea ( Pionerdykkerne i Nordsjøen ), Norges Offentlige Utredninger (“ NOU ” Official Norwegian Report) 2003 :5 ’. The Commission considered that the State had strict legal liability, and should therefore bear the financial responsibility for compensation for injuries sustained by divers as a result of diving in the North Sea and for disorders that they might develop. It recommended the establishment of a State - funded compensation scheme to cover their financial losses, and that licensees and operators should be invited to participate in funding the scheme. An English summary of the report included, inter alia, the following observations: “ 7.4 Assessments and conclusions after the survey Although the Commission of Inquiry could have hoped for a better basis for their assessments of the pioneer divers ’ state of health, it considers that the data obtained permit a qualitatively useful description of the situation. What is most striking is the wide variation: many subjects have managed well, indeed some very well, while a not insignificant share are struggling with serious medical problems. However, a large number, about three out of four, have experienced diving accidents or diving disorders. More than half have suffered decompression sickness, many of them a number of times. The fact that one in five divers has lost consciousness during dives is very serious. This can trigger post-traumatic stress syndrome in genetically predisposed individuals. A disturbingly large number of divers are on disability pension. The fact that relatively young people, aged around 40, are affected is especially significant. This, together with the relatively large number with mental disorders, suggests that many divers have had to deal with heavier stress than most people encounter in the ordinary world of work. In common with findings on the British side, the number of suicides among divers on the Norwegian shelf is disturbingly high. As in the case of other suicides, it is difficult to comment on causes. However, it is not inconceivable that the long-lasting and heavy pressure that divers had to endure may have been a significant factor in the process. When assessing the state of health of North Sea divers it is important to remember that many of them started out as a specially selected and well-trained group of young men. After an average of about 14 years in the North Sea, the majority are in a satisfactory state of health based on the information they have supplied. However, a relatively high proportion have acquired appreciable health problems, illustrated by the fact that almost one-fifth are disabled, and that a number of divers complain of concentration, memory and hearing impairments. The same symptoms are documented in Norwegian and foreign investigations alike. It seems probable that the extreme stress to which many North Sea divers have been exposed at work has been a significant factor behind the disorders that a number of them have developed. “ 16. The Commission ’ s report was sent for comment to the various institutions and organisations concerned. The legislation department of the Ministry of Justice expressed the view that the State did not have a sufficient connection to the oil activity for it to be liable on the ground of strict liability, and that employers ’ liability for the State was difficult to envisage, a matter to be considered by the Ministry of Employment and Administration. After the latter had stated its views, the Government affirmed in a note to Parliament that the pioneer divers who had done ground - breaking work in the North Sea from 1965 to 1990 should receive the compensation for non-pecuniary and pecuniary damage they deserved. Although the State was not liable from a legal point of view, the Government considered that it had a particular moral and political duty vis ‑ à-vis the divers. It proposed that a special compensation scheme be put in place, to be administered by a board. 17. After parliamentary approval, the Government, by a Royal Decree of 4 June 2004, set up a board empowered to deal with compensation claims from divers under a State-budget financed scheme (hereinafter referred to as “the Special Compensation Board ”). The payments were to be adjusted in accordance with the person ’ s degree of disability according to the assessment made by the social security authorities in their decision on disability compensation, and to be linked to the latter ’ s base amount ( grunnbeløp, “G”), with 40G or approximately NOK 2,300,000 ( approximately EUR 303, 0 0 0) being the maximum. In addition, divers were granted NOK 200,000 ( approximately EUR 2 6 ,000) in compensation for non-pecuniary damage. Pending disbursements under the above scheme, by a Royal Decree of 27 June 2003 it was decided to take emergency measures to compensate divers who were in financial difficulty. Following an individual assessment, they could thus be granted amounts of up to NOK 200,000 (deductible from any award made under the scheme mentioned above). This ceiling was later raised to NOK 300,000 (approximately EUR 38,000). 18. In addition to the above, there existed two further compensation schemes. One, adopted by Parliament on 13 June 2000 (when it requested the Government to appoint the Commission of Inquiry) and in effect since 1 July 2000, consisted of lump - sum payments in amounts of up to NOK 200,000 to divers who were receiving a disability pension and who had a degree of disability of 50% or more. 19. Another had been set up by Statoil on 1 November 2001, under which divers could apply for compensation regardless of whether they had been employed by the company. Under the latter, amounts of up to NOK 750,000 ( approximately EUR 9 9 ,000) could be granted. B. The factual circumstances underlying the applicants ’ complaints 20. The applicants submitted that they were disabled and had lost their capacity to work as a result of North Sea diving. Each of them received a disability pension and ex gratia compensation from the State, and some had received compensation from other sources, notably from Statoil. 1. The applicants ’ submissions as to their individual experiences (a) Mr Vilnes 21. From the age of sixteen Mr Vilnes worked as a seaman for periods, pursued studies in mechanics and underwent secondary education and served as a marine soldier in the army until 1974. During the latter period he worked as a diver. From 20 May to 9 September 1975 Mr Vilnes was employed by the diving company ThreeX Diving Ltd ., where he first worked as a diver and then as a diving team leader. Thereafter, he pursued further education in Switzerland. For a period, he took on diving jobs in parallel to studying. (i) Incidents at the Arctic Surveyor 22. From early 1976 until 27 June 1978 Mr Vilnes was employed by Deep Sea Diving and was assigned to carry out work for the diving company Scan Dive AS. He worked offshore, on board the diving vessel Arctic Surveyor (“the Arctic Surveyor ”) at the Ekofisk oilfield in the North Sea. The diving was carried out at an approximate depth of seventy ‑ five metres. The work consisted amongst other things of installing and repairing transport structures through the Ekofisk oilfield to Teesside in England and Emden in Germany. 23. Mr Vilnes submitted that during this period he had been exposed to several incidents in diving operations endangering his life and health. For instance, in 1977 he had been exposed to serious spinal decompression sickness owing to an excessively rapid decompression. This had most probably been the cause of his permanent brain and spinal injuries. 24. Mr Vilnes had further experienced that the umbilical supplying him with breathing gas and several other necessities had been pinned under a cement block weighing several tons that had been lowered from the sea surface. He had also experienced being pulled by the umbilical as the vessel drifted. He was not injured but, he pointed out, that drifting had been particularly dangerous because of the presence of a number of installations and devices on the sea floor, in which he could have been caught up or which could have led to the umbilical being torn off, with probably fatal results. 25. Mr Vilnes had also experienced the gas being cut off at a depth of seventy metres. In a diving operation in 1976 the Arctic Surveyor had been damaged in a hurricane while he and other divers were undergoing saturation. It was impossible for Mr Vilnes and the other divers to leave the vessel, and they had had to remain in the saturation chamber while the ship was taken to shore for repairs and was then brought back to sea in stormy weather so that work could continue. 26. While assigned to the Arctic Surveyor, Mr Vilnes performed bounce diving and saturation diving. He spent a total of 200 days doing saturation diving, which lasted nineteen days and nights on average, the longest period being twenty-six days and nights (see paragraph 77 below). 27. On 27 June 1978, after a conflict with his superior, Mr Vilnes was dismissed from his job with Scan Dive AS. 28. From March 1979 to October 1981 Mr Vilnes worked with a Danish company, Tage Nielsen & Co. K/S, on a project aimed at developing a special foam for use in rescue operations. He also worked on a number of other projects up to 1983. (ii) Incidents at the Tender Comet 29. In 1983 Mr Vilnes was employed by the diving company Wharton Williams Taylor (2W), which had been hired by the then Mobil Oil to carry out diving operations, inter alia in connection with repairs to a buoy at the Statfjord oilfield on the Norwegian Continental Shelf. The diving operations were carried out from the diving vessel Tender Comet (“the Tender Comet ”) as deep as 180 metres. 30. From 10 to 29 June 1983 Mr Vilnes had taken part in a saturation dive which had been planned to last for approximately two weeks. The dive had been shorter than planned, as Mr Vilnes had experienced a very serious breach of the safety requirements pertaining to divers, and had chosen to discontinue the dive. He had amongst other things suffered from earache and severe pain during decompression. He submitted that the diving from the Tender Comet had been conducted with tables, routines and equipment which were dangerous and harmful to him. It had caused him to suffer Post Traumatic Stress Syndrome (“PTSD”) and buzzing in the ears. 31. A few days before Mr Vilnes boarded the Tender Comet, the Petroleum Directorate had carried out an inspection on board the vessel, formally as an observer of the diving company ’ s internal quality control. The medical logbook had indicated that a number of incidents of sores and infections had occurred, that seven people had had earache or infection in their ears (one of which could have been due to the overuse of tablets), that one person had had eye problems, that two people had become ill in the diving bell and had had to stop the dive, and that there had been four instances of decompression sickness involving two people. 32. According to Mr Vilnes, the humidity inside the decompression chamber had been consistently at 90 - 100%; communication between the diving bell and the diving vessel had been deficient, so that it was impossible for divers to make contact when communication took place between a diver and the diving bell. He had thus risked not being heard in the event of a crisis, at a depth of 180 metres. The diving bell also had shortcomings. For example the spring lifting the door at the bottom of the bell was broken, so that divers had to use their own strength to lift the door. 33. The decompression was not stopped during the night while divers were asleep, thereby increasing the risk of bubbles accumulating in the absence of any movement in their joints. This had led to unnecessary and considerable pain. In addition, Mr Vilnes had suffered earache during the dive, making decompression even more painful. 34. The Norwegian authorities had approved the diving operation and had granted a dispensation with regard to the maximum length of the umbilical and the saturation time. 35. Mr Vilnes complained to the Petroleum Directorate and lodged complaints against the diving company with the police on 17 October 1983. In response, the Petroleum Directorate carried out an inspection on board the Tender Comet, which revealed several shortcomings regarding divers ’ safety. 36. Several Tender Comet divers were also interviewed by police. In February 1984 the police communicated the matter to the Petroleum Directorate, which in May 1984 asked the police to carry out further interviews. After doing so, the police again communicated the case to the Petroleum Directorate for comment; on 26 March 1985 the Directorate made a statement to the police. In May 1985 the police recommended to the State Prosecutor that the case be dropped as time-barred. On 18 September 1985 the police telephoned Mr Vilnes and informed him that the case was time-barred. 37. Mr Vilnes complained to the State Prosecutor of Rogaland and to the Petroleum Directorate about their handling of his police complaint of 1983, which as a result of having been sent back and forth between them had become time-barred. This led to an internal inquiry in the Directorate and an inquiry report, and subsequent criticism of the report expressed by an officer of the Directorate. (iii) Subsequent events 38. After the above-mentioned dive at Tender Comet Mr Vilnes ended his career as a diver. From 1984 - 86 he was employed at the State Diving School and then decided to terminate his employment after a disagreement with the management. From 1988 until 1 June 1989 Mr Vilnes was employed at Borregaard Engineering AS. From 1990 onwards he was employed by his own limited liability company and did various jobs. Mr Vilnes has not worked since 2000. 39. Mr Vilnes was one of several divers who were examined by Haukeland University Hospital in August 2002. According to a specialist statement of 20 February 2004 given by the department of occupational medicine, Mr Vilnes suffered from a pathological condition potentially related to a “lazy” left leg after spinal bends in 1977. His medical invalidity resulting from slight encephalopathy was assessed at 20%. Buzzing in the ear and reduced hearing had produced a 5% reduction. His other neurological symptoms were so unspecific that they could not be verified. Possible PTSD had to be the subject of another assessment. 40. According to a psychiatrist ’ s statement of 10 June 2004 Mr Vilnes was clearly suffering physically and psychologically from work-related injuries. He had a delayed development of PTSD which was becoming more and more apparent and present. His condition was chronic and was difficult to treat in any other way than Mr Vilnes ’ adapting himself to his own reduced capacities. Since his condition was unstable it was difficult for him to plan and he could not therefore take on an ordinary job in which he had to fulfil conditions and meet expectations. He needed flexibility. He needed to use his remaining capacities for himself in order to manage the exigencies of daily life. His psychological incapacity was assessed at 34%. 41. On 16 August 2005 the Social Security Office granted Mr Vilnes work -related injury benefits, taking the view that his injury dated back to 1 January 1985. On an appeal by Mr Vilnes, the Social Security Court ( trygderetten ) maintained the latter date by a judgment of 7 July 2006. It held that his medical invalidity amounted to 40%, covering a low degree of encephalopathy, reduced hearing, buzzing in the ear and PTSD. 42. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Vilnes received various sums totalling NOK 3,6 13, 657 ( approximately EUR 47 6 ,000 ) in compensation (including NOK 300,000 in Immediate Aid from Rogaland County Social Security Office, NOK 750,000 in support from Statoil, NOK 2, 4 51,120 from the Special Compensation Board ( which amount included NOK 200,000 in ex gratia compensation for non-pecuniary damage ), and NOK 112,537 in compensation for permanent injury). (b) Mr Muledal 43. Mr Muledal worked as a North Sea diver from 1978-89. He performed saturation dives for periods totalling approximately 500 days and also performed approximately 200 bounce dives. In a medical assessment by Haukeland University Hospital dated 28 June 2005, it was stated that on two or three occasions he had suffered from bends in the joints. He had also suffered several diving accidents and had had near accidents. On a number of occasions, he had been exposed to a gas-cut while diving. He had recovered several dead bodies in the sea following the accident on the Alexander Kielland drilling rig ( which capsized during operations in the Ekofisk field in March 1980, killing 123 people ). 44. Mr Muledal participated in a test dive known as “ OTS III ” at a depth of 360 metres which lasted twenty-eight days (see paragraph 109 below). He lost seven kilos because he could not eat properly during the dive and has suffered from stomach problems since. He also suffered from High Pressure Neurological Syndrome ( HPNS ). 45. As a consequence of contracting chronic obstructive lung disease, he lost his diving licence in 1987. For that reason, his former employer, Aker Comex, terminated his employment in 1989. The said disease constituted a 15% disability. He may also have PTSD. He sustained damage to his hearing which may increase his degree of disability. In addition, he is suffering from encephalopathy, which represents a 20% disability. 46. From 1990 he received a 50% disability pension with occupational injury benefits and, from November 2008, a 100% disability pension. 47. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Muledal received in total NOK 3,646,635 ( approximately EUR 480,000 ) in compensation (including NOK 150,000 in Immediate Aid from Rogaland County Social Security Office; NOK 375,000 in support from Statoil; NOK 200,000 in ex gratia compensation from Parliament; NOK 2,057,230 plus another NOK 364,405 from the Special Compensation Board; and NOK 500,000 for loss of licence). (c) Mr Lindahl 48. Mr Lindahl served as a North Sea diver from 1970-1993. He stated that thereafter he worked as an inshore construction diver on a significantly lower salary in a job that was easier to handle, despite his health problems. Because of chronic obstructive lung disease, he lost his medical certificate for diving in 2002. In a medical report on him by Haukeland University Hospital dated 26 February 2003 and an undated psychologist ’ s report, it was noted that he had suffered from decompression sickness twenty times, with skin bends, mostly in the early phase of his career, and that these incidents had not been treated in a decompression chamber. It was further noted that he had been treated a number of times for decompression sickness involving skin bends and joint bends, and once, in 1981, for vestibular decompression sickness after diving at depths ranging between 120 and 150 metres on a North Sea saturation dive. As a result of the latter his hearing became impaired. 49. During his first saturation dive in 1974, Mr Lindahl and several colleagues experienced sudden decompression and error in gas supply due to power failure, leading to unconsciousness among the divers. Mr Lindahl also suffered from generalised convulsions. He submitted that incompetence and routine failings had caused the incident. Mr Lindahl had recovered bodies of people who had died in accidents. He had also experienced uncontrolled decompressions and near-accidents in which heavy objects had almost hit him while diving. 50. Mr Lindahl participated in the Deep Ex I test dives to 300 metres and Deep Ex II to 504 metres. During Deep Ex I, he experienced decompression sickness, and Doppler tests revealed gas bubbles in the artery. 51. According to a specialist medical statement dated 11 May 2008, diving in the North Sea caused him injury, including reduced lung capacity, producing a medical disability of 20%. Furthermore, he was 30% disabled by PTSD. Since 200 3 he has received a 100% disability pension with occupational injury benefits, the occupational injury being assessed to have been originally sustained in 1985. 52. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Lindahl received various sums totalling NOK 3,066,739 ( approximately EUR 403,000 ) in compensation (including NOK 200,000 in Immediate Aid from Rogaland County Social Security Office; NOK 315,619 in support from Statoil; NOK 2,351,120 from the Special Compensation Board, which amount included NOK 200,000 in ex gratia compensation for non-pecuniary damage ). (d) Mr Sigurdur P. Hafsteinsson 53. Mr Sigurdur P. Hafsteinsson was employed as a North Sea diver from 1978-90. After his medical certificate for diving was withdrawn in 1990, he worked as a dive supervisor and did other similar jobs. From 2001 his health gradually worsened, and from 2003 he was found to have 100% occupational disability. 54. According to a medical statement by Haukeland University Hospital of 2 May 2003, he had participated in two deep dives at 350 and 400 metres and had spent more than 300 days in saturation. He had suffered bends on three occasions ( in his right knee ). On several occasions he had witnessed fatal accidents and experienced near accidents. 55. For instance, he related an incident in 1982 when, while on a saturation dive at a depth of 150 metres, he and three fellow divers had just returned to the chamber when an unskilled worker was about to loosen a clamp that connected the diving bell to the diving chamber. Fortunately, the supervisor had heard the noise and managed to intervene just in time. Had this operation not been stopped, the divers would have been subjected to an explosive decompression. A similar error had led to the death of five people and seriously injured a sixth person in a diving bell on the Byford Dolphin rig in 1983. 56. On one occasion, in 1984, Mr Sigurdur Hafsteinsson ’ s umbilical and the diving bell wire had been trapped in drilling wires and had been damaged. On another occasion, when working at a depth of seventy metres, there had been a powerful explosion which had caused sudden pain to his head and ears and possibly unconsciousness. He had been bleeding from the ears. Following this accident, he had suffered from impaired hearing. He had taken part in recovering bodies from the Alexander Kielland accident (see paragraph 43 above). 57. According to Mr Sigurdur Hafsteinsson, in 1983 and 1985, he had participated in test diving at NUTEC. In the first test dive, called Statpipe, divers had been taken down to 350 metres. In the second test dive, called Troll (the name of the rig), divers had been taken down to 450 metres. At 450 metres, he could hardly breathe and panicked. One of his colleagues had collapsed and had to be revived. In 1990, his diving licence was revoked. The medical expert declaration from Haukeland Hospital concluded that diving had caused him to suffer from an obstructive lung disease constituting a 25% medical disability. A medical expert in psychiatry had concluded that he suffered from PTSD representing a 35% disability and that he was 100% disabled. 58. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Sigurdur Hafsteinsson received various sums, totalling NOK 5,901,120 ( approximately EUR 776,000 ) in compensation (NOK 2,551,120 from the Special Compensation Board, which amount included NOK 200,000 in ex gratia compensation for non-pecuniary damage; NOK 2,750,000 from Chartis Insurance; and NOK 600,000 for loss of licence). (e) Mr Nygård 59. Mr Nygård worked as a North Sea diver from 1987-94. He carried out more than 200 air dives and saturation dives totalling approximately 200 days. He experienced numerous accidents and near-accidents as a North Sea diver. For instance, in 1988 he was almost hit by a crane ball (the massive hook on the vessel ’ s main lifting crane, weighing between 100 and 300 kilos) while working at a depth of 150 metres, and just barely escaped death. His supervisor had apparently removed his headset and had not heard Mr Nygård ’ s message of “all stop” and therefore had not told the crane operator to stop the crane. 60. In 1990, while working at thirty metres in saturation, an oxy-arc (cutting tool) had exploded in his hand, hitting him hard in the chest, because a riser (a pipe conducting oil and gas between the sea bed and the oil rig) which Mr Nygård was burning had not been emptied of water, although the supervisor had confirmed several times that there was no water pressure in it. Consequently, the water pressure had blown the flame, sparks and oxygenic gas back at the oxy-arc that Mr Nygård was holding, which had thus exploded in his hands. 61. Mr Nygård further stated that in 1995 his medical certificate for diving had been revoked, as a result of his being diagnosed with chronic obstructive lung disease. For most of 1995 he had been on sick leave, and between 1995 and 2000 he had received retraining benefits as part of his re ‑ adaptation funded by social security after he had quit diving. He obtained a degree in economics, and worked for a couple of years until he became incapacitated by his health problems. 62. According to a medical expert opinion dated 24 October 2005, mainly due to diving in the North Sea, Mr Nygård suffered from several medical disabilities, of which chronic obstructive lung disease amounted to 15%, PTSD to 34% medical disability, diver hands to 10 %, and encephalopathy to 14 %. With effect from 1 October 2003 he was granted a 100% disability pension with occupational injury benefits. He submitted to the Court that his encephalopathy and chronic obstructive lung disease probably resulted from the use of rapid (dive) tables. 63. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Nygård received various sums totalling NOK 6,773,935 ( approximately EUR 891,000 ) in compensation ( including NOK 3,651,560 and NOK 1,130,968, respectively for past and future loss of income from Vesta Insurance under the Workers ’ Compensation Act; NOK 1,254,196 from the Special Compensation Board, which amount included NOK 200,000 in ex-gratia compensation for non-pecuniary damage, and after deduction of the amount granted for future loss by Vesta Insurance; plus a further NOK 242,796 from the board, NOK 57,999 plus NOK 136,416 in compensation for permanent injury, and NOK 300,000 for loss of licence). (f) Mr Nesdal 64. Mr Nesdal worked as a North Sea diver from 1982 to 1994. In parallel he also worked as an assistant diving attendant. In 1988 and 19 89 he experienced dizziness on several occasions while diving and when off work. His health gradually deteriorated and in 1994 he quit diving. He later qualified to work as a sheet metal worker, which enabled him to pursue gainful employment until 2001, when he was granted a disability pension. 65. According to a medical statement by Haukeland University Hospital of 27 January 2005, he had experienced bends in his left elbow and had on two occasions suffered from decompression sickness assessed as bends in his lymph. On all three occasions the symptoms had disappeared following treatment in a compression chamber. He had later suspected that the bends in his lymph could have related to something else. 66. He experienced neurological symptoms on a saturated dive in 1985 and dizziness and nausea in several subsequent dives. On a number of occasions he had been exposed to life-threatening incidents while diving in the North Sea. Once he had been stuck in a shaft while hearing on the inter-communication system that divers should immediately revert to the diving bell because the diving vessel was drifting away. Mr Nesdal had observed the diving bell moving and had at the last minute managed to get released from the shaft and returned to the bell. 67. Another near accident had happened when he participated in the testing of a ROV (Remote Operated Vehicle, an unmanned submarine operated from the surface), weighing several tons. His umbilical had got hooked on to the ROV which had drifted away, stretching it almost to the point of bursting. Mr Nesdal had also witnessed two divers getting caught in the propeller behind the vessel, one of whom had died. Because of the great variations in the level of competence of surface crew, he had sometimes felt unsafe when receiving assistance from its members. 68. According to a medical statement from Haukeland University Hospital, dated 25 February 2005, no organic causes had been found for his episodes of dizziness. which most probably related to his depression and anxiety. a condition caused by diving and which represented a medical disability degree of 15 -2 0%. The social security authorities first regarded him as having 60% incapacity for work, then in 2004 he was granted a 70% disability pension. His disability was found to date back to 1994. 69. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Nesdal received various sums totalling NOK 2,945,786 ( approximately EUR 388,000 ) in compensation ( including NOK 1 6 0,000 in Immediate Aid from Rogaland County Social Security Office; NOK 410,651 in support from Statoil; NOK 200,000 in ex gratia compensation from Parliament; and NOK 2174,786 from the Special Compensation Board ). (g) Mr Jakobsen 70. Mr Jakobsen worked as a North Sea diver from 1975-8 3. At the end of this period he also worked as a diving supervisor and diving superintendent, as he also did from time to time thereafter until he definitively left the diving industry in 1992. He then briefly served as project manager in a subsea project and in the following years he tried to make a career in business. Because of reduced working capacity and health problems he ceased working in 2004 and was granted a 100% disability pension in 2005. Norwegian social security set the date of the occupational injury at 1980. 71. According to a medical statement by the Haukeland University Hospital, dated 21 December 2005, he had experienced bends on fifteen to twenty occasions ( once in his skin, on other occasions in his joints – the right shoulder and elbow). 72. He submitted to the Court that he had been exposed to a life ‑ threatening situation in 1979 when using surface-supplied breathing gas in a dive in the North Sea. He had been diving alone inside a rig construction on the seabed, checking the welding, when he suddenly heard a crack. The hawser attaching the vessel to the rig had torn apart and the vessel had pulled backwards, dragging him along by the umbilical. He risked being caught in the propeller and losing air from the umbilical. Fortunately he managed to locate the diving basket on the seabed and climb into it and receive decompression treatment there. During that same period a colleague of his had been crushed to death by a container during a crew change. 73. On several occasions he had experienced a loss of seal on the diving bell, causing it to lose pressure and mist over. Losing the seal on the diving bell during a dive was always life - threatening. Gas was streaming out of the bell. Reacting quickly and going down to deeper waters inside the bell, with the surface crew lowering the bell back to working depth to maintain pressure was the only way to survive. The divers ’ lives had depended entirely on their knowledge of how to address the problem and on the skills of diving management at the surface. During a saturated dive in 1978, Mr Jakobsen had experienced the diving bell wire being torn apart and the bell falling to the sea bed. He had been in the chamber while his fellow workers had been under the bell. They had received a new wire and had been rescued. 74. In 1980 Mr Jakobsen had participated with a colleague in the recovery and identification of the deceased after the above-mentioned accident at the Alexander Kielland drilling rig. They had spent sixteen days in saturation under the platform, an extremely dangerous operation, and had recovered many corpses. After that incident his colleague had quit diving altogether, whereas Mr Jakobsen had continued. 75. An expert in psychiatry had concluded on 3 June 2005 that he found it probable that Mr Jakobsen had experienced numerous critical situations and suffered from traumatic stress caused by dangerous and sometimes life ‑ threatening incidents. He suffered from PTSD mainly caused by stress connected to North Sea diving. On account of psychological injury his medical disability was assessed at 35% and he was 100% disabled. The findings as to his medical disability were confirmed by a medical expert statement from the Haukeland University Hospital dated 21 December 2005. 76. Under the special compensation schemes described under paragraphs 16 to 18 above Mr Jakobsen received various sums totalling NOK 2,627,960 ( approximately EUR 346,000 ) in compensation ( including NOK 30 0,000 in Immediate Aid from Rogaland County Social Security Office; NOK 200,000 in ex gratia compensation from Parliament; and NOK 2,024,465 plus another NOK 303,495 from the Special Compensation Board ). 2. General risk factors complained of (a) Dispensations from safety regulations 77. Pursuant to the 1978 safety regulation, the saturation period for saturation diving should not exceed sixteen days. However, the Petroleum Directorate could authorise an extension of the period to twenty-four days and exceptionally to thirty-two days, provided this had been agreed between the diving companies and the divers ’ representatives. Such dispensation arrangements had to be seen against the background that certain operations took more than sixteen days, and that avoiding sending in a second team permitted a reduction in certain risks involved in subjecting a new diving team to pressure in order to complete the work ( NOU 2003: 5, p. 80). 78. The safety regulation further provided that diving from a diving bell was not permitted if the divers ’ umbilical was longer than twenty-nine metres and that the umbilical of the diver remaining in the bell should not exceed thirty-one metres. Dispensations were sought for safety reasons, notably in order to reduce the risk of the diving vessel and the diving bell getting too close to the oil platform. 79. In both respects, the Directorate practised a liberal policy in granting dispensations. The Lossius Commission observed that the granting of dispensations appeared to be almost automatic; this was a practice which was criticised by divers ’ organisations. At the same time, the Commission stated : “The Petroleum Directorate would probably have avoided criticism from the divers if the maximum length of the umbilical had been set at, for example, sixty metres, and the maximum number of saturation days had been set at thirty-two. Then dispensations for the umbilical would only have been given in exceptional cases. The thinking behind the rules and the Petroleum Directorate ’ s dispensation practices seems to have been that - taking all factors into consideration - safety work would be better promoted by having a main rule for the umbilical of about thirty metres and a saturation period of up to sixteen days, combined with extensive use of dispensations.” ( b ) Decompression tables 80. The diving companies using tables involving shorter decompression time and therefore lower labour costs had a competitive advantage over other companies operating with longer saturation periods. In order to strengthen their own competiveness, the companies treated the decompression tables which they used as confidential information that should not be disclosed to other diving companies or to the Norwegian authorities. 81. A letter of 10 July 1969 from The University of Newcastle Upon Tyne (M.R.C. Decompression Sickness Central Registry ) to the Norwegian Labour Inspection Authority states : “ ... We will be very pleased to have your cooperation with regard to our research into the immediate effects (Decompression of Sickness) and long term effects (Aseptic Necrosis of Bone) of decompression and will do all we can to help you. Should you require it I would be pleased to visit you and give advice to the best of my ability. Our research over the years has shown that the Regulation decompression procedures used in this and other countries were inadequate and experiments are being made, particularly in this country [the United Kingdom] and the United States, with whom we are cooperating, with new decompression tables and varying periods of exposure to higher pressure. In this country we have been using the tables produced by Mr. Hempleman, and of which you have a copy, for about three years. Our standard periods of exposure (length of shift) remain at 8 hours, but in America and some other countries the length of shift is reduced as the working pressure is increased. We were hoping to produce a satisfactory decompression for the longer periods of exposure as very short periods are uneconomical from the Contractors ’ point of view. Our revised decompression tables are considerably longer than our Regulation (1958) tables, and are based on Naval Diving tables, with longer periods of time spent at the medium pressures and dropping to normal atmosphere from 4 pounds per square inch (approximately 0.28 kg per square centimetre or 3 metres of water). The tables used in Washington State, California and also Australia are considerably longer on average, and the longer period of decompression time is spent at the lower pressures. I gather that you prefer this type of decompression so I enclose a photostat copy of the tables and also the maximum periods of exposure allowed at various working pressures. Some years ago we realised that with organised medical services and careful therapeutic recompression procedures the immediate decompression sickness cases could be well controlled even though they could not be prevented and that the long term effects of decompression, aseptic necrosis of bone, was the greater hazard of working in compressed air. Too many healthy young men were being crippled with secondary osteoarthritis of their shoulder and hip joints. The use of these new procedures certainly reduces remarkably the incidence of the serious forms (Type 2) of decompression sickness and we are optimistic that it will reduce the incidence of bone necrosis but it appears probable that we will have to give even longer decompression times or reduce the periods of exposure, or both, before we obtain really satisfactory results. It is a strange fact that these prolonged procedures do not reduce the incidence of the simpler form (Type l) of decompression sickness but that is easily treated (see monograph). Radiological examination of joints We have examined about 1500 compressed air workers, many of them on a number of occasions, and have found that among well experienced men decompressed by the old procedures as many as 50% have signs of bone necrosis. Collections of 80 radiographs showing typical appearances have been produced. We think it is important that men exposed to pressure of one atmosphere gauge pressure should be radiologically examined before exposure, every six months during exposure and, if possible, twelve months after exposure. Medical examinations The initial examination is the same as for a life insurance examination. A chest radiograph enforced in some countries. Fat men should not be employed and long period (shift) workers should be aged over 40 (see monograph). Men working at pressures over one atmosphere gauge have a shorter examination every month and if working at lower pressures, every three months. No further research has been done concerning surface tension and it is ignored at present ... I would also be pleased to know when compressed air work is expected to commence, how many men will be employed and over what period of time. ” 82. At the initial phase tables for bounce diving developed by the US Navy were being used. The Labour Inspection Authority had no access to tables used in saturation diving. In 1972 it took the initiative to develop Norwegian tables. A German research body was contacted but cooperation proved to be difficult. 83. In section 5.7.4 of the above-mentioned 2003 Lossius report, the following observation may be found under the title “Work on diving tables offshore” : “ [1] Diving tables specify how rapidly a diver can be decompressed following a dive (a table for compression prior to a dive is called a compression profile). The physical and medical factors are addressed in more detail in (3), above. It is primarily the decompression tables that have been and continue to be the subject of discussion. The main issue here is the ascent speeds indicated in the tables and the use of increased O2 content in the breathing gas in order to reduce the ascent time. The time factor is important since the purpose of the table is to bring the diver up to normal pressure without injuries, while prolonged decompression can be very uncomfortable for the diver. In the case of commercial diving in the North Sea, the time factor was moreover a competition factor between the diving companies. Diving contracts were often awarded to the company with the most rapid tables. Regard for the health of the divers thus ran counter to strong commercial interests. This issue [ problemstilling ] was well known to the oil companies, the diving companies, the divers themselves, diving doctors and the Norwegian authorities. [2] According to the Commission ’ s information, the tables used at the start of drilling for oil in the North Sea were tables for bounce diving developed by the US Navy. These tables were developed over a period of several years. [3] Saturation diving was introduced as a method in the North Sea at the start of the 1970s. Neither the Norwegian diving companies of the day nor the Norwegian Labour Inspection Authority had access to the tables that were used for this form of diving, ,since the tables used by the foreign companies were regarded as private property and confidential. This was a problem for the Labour Inspection Authority because, pursuant to Article 121 of the 1967 Resolution, the Authority was responsible for approving the decompression procedures used by the diving companies. In order for the Norwegian diving companies ThreeX and Nordive to be able to compete for contracts, there was a need for available tables to a depth of 200 metres. According to information from the Labour Inspection Authority, the only available tables in 1972 for the use of helium-oxygen mixtures were the American marine tables to a depth of 116 metres. [4] At the end of 1972, the Labour Inspection Authority took the initiative of developing specific Norwegian tables, and, following an application to the Ministry of Industry, was allocated NOK 52, 000 for this purpose. In addition, the Norwegian Navy made available two divers who had volunteered to take part in developing these tables. The Labour Inspection Authority approached the Institut fur Flugmedlzin ( Institute of Aviation Medicine ) at Bad Godesberg in Germany, which was commissioned to develop the tables. According to the Labour Inspection Authority ’ s letter of 29 March 1973, ‘ for the divers concerned, test diving is covered by their insurance contract ’, but they ‘ will need to be insured against loss of licence ’. [5] In parallel with this, the Labour Inspection Authority also contacted the University of Zurich, which had expertise in this area. The Authority ’ s letter of 16 April 1973 to the university stated that the large international diving companies had developed helium tables to a depth of 200 metres, but that the tables were kept secret, and nor was information made available concerning the incidence of decompression sickness. When asked about the incidence of such sickness, the response of diving companies was generally ‘ very low ’ or ‘ approximately 5% ’. [6] However, divers provided quite different information. The letter further stated that, were helium tables to be made freely available, there would no longer be any commercial basis for secrecy regarding the tables, and this would enable free exchange of views regarding the tables. [7] Concerted efforts could then be made to develop optimal diving tables, while the competitiveness of the diving companies would to a greater extent be dependent on the training and skills of the divers and the safety and reliability of the equipment. [8] The reply from the University of Zurich dated 30 April 1973 stated that no research institute or diving company currently had access to tables for depths of 100 ‑ 200 metres that were secure enough to be made generally available. Nor was it possible on the basis of a limited amount of money and two test divers to develop such general tables. Large diving companies such as Oceaneering, Comex, SSOS and others withheld information regarding decompression methods, not only for commercial reasons but also out of regard for liability issues. The letter further stated (translation from German) : ‘ At the moment, all decompression procedures for dives with O2/HE have a higher risk for “Bends”, than, for instance the tables used by the US Navy for conventional dives with air ... I am available any time to demonstrate, in Zurich and under my full medical liability, simulated dives with your test divers up to 300 metres with a risk of “Bends” of less than 5%. ’ [9] The Commission would add that a limit of 5% decompression sickness is today regarded as a relatively high risk of decompression sickness. Current tables operate with considerably lower risk of decompression sickness. [10] An internal memorandum of 30 November 1973 from the Inspection Department of the Labour Inspection Authority stated as follows: ‘ ... stressed that he would attempt to avoid a situation whereby Norwegian companies obtained dubious tables abroad that had not been properly tested, and therefore could not be approved. This might result in newspaper headlines that could show the Norwegian authorities in an unfavourable light. ’ [11] According to information received by the Commission from one of the test divers, a simulated test dive was conducted in December 1973 at the Institut fur Flugmedizin (Institute of Aviation Medicine). Simulated dives to depths of 100 metres and more were carried out without accidents. However, after the two test divers had conducted simulated dives to 150 metres, one of them showed symptoms of decompression sickness and was then recompressed to approximately 90 metres, following which he was free of symptoms. In the meantime, the other diver had shown symptoms of decompression sickness but, owing to a lack of gas and other practical problems, the decompression sickness was not treated by means of recompression, but in another way. A diving doctor has informed the Commission that both divers suffered from spinal and cerebral bends, and that both of them suffered permanent damage, more serious in the case of the diver who was not recompressed. Assuming that the Commission has perceived the circumstances of the test diving correctly, it was irresponsible to conduct such a trial when apparently it had not been ascertained that it would be possible to treat both test divers for decompression sickness should this occur. [12] Work continued on developing tables for saturation diving to a depth of 200 metres, and in 1975 the Labour Inspection Authority was allocated NOK 113, 500 to complete the project. One of the pioneer divers the Commission has been in contact with has informed it that in 1975, at the request of the Labour Inspection Authority, he tested decompression in accordance with one of the tables that had been developed. In his view, the table was not usable in the North Sea, which he clearly stated to the Labour Inspection Authority. [13] The British Royal Naval Physiological Laboratory had at the same time conducted trials of tables it had developed to a depth of 200 m, which were made available to Norway for ‘ governmental use ’. Finally, the Norwegian diving company ThreeX had commissioned development of tables at Tarrytown Labs. Inc. In the USA. [14] Although the Norwegian authorities gradually gained access to decompression tables for saturation diving, the tables were not made publicly available. The diving companies continued largely to withhold from their competitors the tables that they themselves used. [15] The Commission would add that the investigation has not provided any specific clarification regarding whether rapid tables resulted in more cases of decompression sickness. This is partly because factors other than the speeds indicated in the tables must be taken into consideration. ” 84. In a letter of 21 June 1984 to the Diving Medical Advisory Committee, the Petroleum Directorate stated: “ Even when taking into consideration the different approaches to establishing a decompression profile based on different attitudes to the effect of time, PO2 and other factors on gas elimination during decompression, we find the difference between the slowest and fastest table disturbing. The difference in decompression time from 1000 feet is close to a week when comparing the fastest and slowest table. In fact the fastest table we have considered is faster than the Duke Emergency Decompression profile from a saturation dive ...This Duke table is in other companies used as the dive profile for aborted dives in serious emergencies ... and it looks more like a modified USN 5 treatment table than anything else.” 85. In a report of February 1986 prepared for the Norwegian Petroleum Directorate, Mr H.V. Hempleman stated, inter alia, that ensuring the safety of divers during the decompression phase of a saturation dive involved the examination of a very wide range of techniques and practices. He explained that there was a lack of knowledge which had led to an uneasy feeling amongst many people closely connected with diving work that perhaps the current procedures could be causing long - term damage to sensitive tissues, particularly the nervous system. The situation was not helped by persistent rumours that divers had suffered serious and permanent memory impairment and personality changes as a result of their employment as divers. Deciding whether such psychological changes had occurred and if so whether they were attributable to diving activities was a task of great complexity, and it would undoubtedly take many more years of intensive effort to establish an agreed answer. He then pointed out: " Even more time will be required to ascertain whether the decompression phase of the dive, which is the subject of this report, is responsible for any of these long - term problems. Therefore, to minimise the possibility of the decompression phase being involved in any short - term or long - term tissue damage a very cautious approach is essential until the necessary research has been completed." 86. Mr Hempleman highlighted the various factors explaining the lack of hard data in this area. Nearly all relevant knowledge concerning saturation diving had been obtained using human volunteers; a saturation dive was defined as a dive where at least twenty-four hours had been spent at depth before decompression commenced, the costs of mounting a series of definitive experimental saturation dives were huge, each experiment requiring a large pressure chamber facility, and it was useless to expect any statistically significant results from fewer than ten trials with three men per trial; one single experiment would occupy the whole chamber complex for at least a year to settle just one point. He added: “ If someone were to suggest that the result would be quite the same at a different pressure, or using a different oxygen partial pressure in the breathing mixture, then the whole experiment would need to be repeated taking these additional factors into account. This would require at least a further four years ’ intensive work, employing the services of many fit young volunteers (not readily obtainable), small teams of skilled people prepared to work all hours of the day and night, specialist medical advisers available throughout the experimental period, large and expensive gas systems, and so on. If the procedures need to be tested at sea before being released for general use then a suitable ship, plus crew of course, with most of the workforce engaged in shore-based experiments, will attempt to repeat the procedures. If all goes well a typical sea trial would be contemplated in a few weeks, at a cost which is worrying to contemplate. From what has just been stated it will be quite obvious that the necessary experimentation to enable a satisfactory number of definite quantitative statements to be made would require resources of NASA-like magnitude. The alternative is that some person of unusual intelligence and insight provides an explanation of what is occurring during decompression, and that this answer is sufficiently comprehensive to [be] acceptable without too many exploratory tests of its effectiveness. Neither large sums of money nor the arrival of a comprehensive aetiology of decompression sickness are immediately likely possibilities, so it must be assumed that, as in the last several decades, there will be slowly improving levels of understanding, often based upon the outcome of routines used by working divers. ” 87. Under the heading “Data collection and analysis”, Mr Hempleman pointed out that because diving was a relatively safe practice the number of decompression sickness incidents in any tests would be small, and errors in small numbers could be seriously misleading. After explaining further the difficulties involved, he stated : “Finally a philosophical point needs to be stated ... [N] o one fully understands the basic physical and physiological mechanisms that cause decompression sickness, and therefore it would be safest to assume that the worst possible situation applied. This means that the relevant tissue (or tissues) always possesses separated gas in some form ... In this philosophy no decompressions are free of gas, it is merely that some decompressions may yield more separated gas than others. Although it is possible that there is a critical volume of gas required to cause decompression sickness, there can be no critical pressure change that cause its formation or significantly increases the likelihood of this occurring. All divers are equal in this respect, and so are all decompression schedules.” 88. The report moreover gave an analysis of the particular features of the “Hyperbaric Environment”, a presentation of “Units of Measurement”, as well as series of detailed “Safety Recommendations” and concluded : “Confinement inside a pressure chamber, breathing high - pressure synthetic gas mixtures for days or even weeks at a time must have unavoidable effects upon the saturation diver, but it is essential that the decompression procedures do not add to his difficulties and are proved not to be detrimental to his short - term or long - term physical and mental health. This will eventually require much more detailed information than is sought in this report, but it is hoped that the suggestions made there represent a significant start to realising this aim. ” 89. In 1990, the Petroleum Directorate initiated a programme of standardisation of compression- and decompression routines. The standardised diving tables that were introduced in 1991 used as a basis the most conservative diving tables that existed in the industry, on the assumption that this would optimise the safety of divers. 90. In a report of January 1991 comparing the saturation diving tables and assessing the preparation of conditions for standardisation, the Petroleum Directorate stated that a common framework of diving tables would significantly optimise divers ’ safety, provided that a common and simple system of reporting injuries and illnesses sustained in saturation diving was developed in parallel. 91. After the introduction of standardised tables, decompression sickness became a rare occurrence. 92. As can be deduced by interpreting the columns illustrating the annual occurrence (from 1978 to 2002) of decompression sickness, in a statistical table prepared by the Petroleum Directorate ( dated 5 November 2003), there were almost fifty-five incidents in 1979, forty in 1979, fifteen in 1980, nine in 1981, twelve in 1982, eleven in 1983, ten in 1984, three in 1985, 1986 and 1997, almost eight in 1988 and nine in 1989, one in 1990, none in 1991 and 1992, three in 1993, none from 1994 to 2001, and one in 2002. ( c ) Supervision 93. The Labour Inspection Authority, which was responsible for supervising diving activity in the North Sea until 1978, had one employee specifically entrusted with the task of supervising the entire petroleum industry inshore and offshore. He was educated as a civil engineer and had many years ’ experience as an inshore construction diver before he carried out inspections in the North Sea. The inspections conducted were directed at technical devices rather than diving methods and routines. 94. The Lossius Report included the following observation ( on page 76): “It is uncertain but not very likely that the Labour Inspectorate was familiar with the significant occurrence of decompression sickness. Interviews with pioneer divers and diving medical experts have revealed that the work environment in the North Sea, both before and after 1978, accepted decompression sickness as part of diving, a disadvantage that one tried to avoid, but nevertheless something that went together with diving. The illness was treated with recompression and considered recovered from. The Labour Inspectorate seemed familiar with, but nevertheless unengaged in, the problem of time pressure during bounce diving and many divers ’ sense of insecurity in the work situation – the risk of being put onshore.” 95. In a letter to Statoil dated 23 March 1990 the Petroleum Directorate observed: “There is reason to believe that there was insufficient supervision of the diving industry in the period from the early 60s until the Norwegian Petroleum Directorate issued temporary regulations for the Norwegian continental shelf.” 96. With regard to the Labour Inspectorate supervision of diving, the Lossius Commission stated (section 5.7.5, penultimate paragraph): “Time pressure during bounce diving and the lack of security in many divers ’ working situation – the risk of being put onshore – was a problem the Labour Inspectorate appears to have become familiar with, but did not treat with any particular concern.” 97. As regards the supervision of the use of diving tables, the Lossius Commission made the observations in section 5.7.4 quoted in paragraph 83 above, notably in the penultimate paragraph (“[14]”) of the quote. 98. Pioneer divers were critical of the Labour Inspection ’ s competence and supervision. The Lossius Commission confirms their criticism to some degree, stating that: “In accordance with [the supervision of] onshore industry, he [the person responsible for diving supervision] focused on fire safety, strength of cranes, cables and other materials ... Less focus was placed on diving methods and routines, and attitudes of divers and the diving management... One might question whether his qualifications were satisfactory, and this must have been known to his superiors.” (Lossius Report, page 76, Section 5.7.5, right side, second paragraph).” 99. An additional staff member was hired during the last period of the Labour Inspectorate ’ s supervision of North Sea diving, before the Norwegian Petroleum Directorate took over the responsibility and supervision in 1978, starting with five staff members. ( d ) Professional training 100. The applicants pointed out that in addition to having satisfactory knowledge and equipment to stay under water, professional divers needed to perform numerous duties such as welding, localisation, installation, dismantling and guiding of equipment, and so on. (Lossius Report, section 4.3.2, pp. 56 and 57). 101. Despite the varied and demanding work, the Lossius Report stated that there was no organised training of North Sea divers in the first years of the petroleum industry. The Labour Inspection Authority ’ s only requirement for professional divers was an approved medical certificate (Lossius Report, section 4.3.3, first paragraph, p. 57). 102. The first diving certificate requirements entered into force in 1979, and in 1980 the State opened a diving school. ( e ) Reporting practices and investigations of accidents and near-accidents 103. According to the applicants, a culture of under-reporting of accidents and near accidents prevailed in North Sea diving. The Government took no adequate steps to address the under-reporting, and accepted that accidents and near accidents were not investigated. Therefore, oil companies and diving companies did not suffer any consequences as a result of malpractice. They were not compelled to address the cause of accidents and near accidents. On this matter the Lossius Commission stated (section 5.11, p. 89 of the report): “The weak supervision regime may also indicate that the directorate lacked understanding of the risk of harm which working in the North Sea involved, in particular for divers. Lack of comprehension of the risk of harm may be related to the fact that the Directorate most likely did not have a realistic perception of the extent of the damage, partly because of the lack of reporting from oil companies and contractors, but also partly because of the directorate ’ s lack of involvement.” ( f ) Protection of North Sea divers from chemicals in water and air 104. The applicants submitted that divers had been exposed to dangerous chemicals that existed in, for instance, drilling mud and breathing gas, as well as bacterial growth in decompression chambers. For nearly forty years the matter had not been the subject of any scientific research, and only in 2006 was a study produced. The study, known as the ‘ Thelma Report ’, concluded that divers had been exposed to organic pollution and that the diving bell was the most polluted system. Whilst the testing and monitoring of chemical exposure had not complied with applicable procedures laid down by the industry itself and its contractors, it had not been possible to calculate the full level of pollution and health risk in hyperbaric activities. This should be a priority in the future. 105. Furthermore, the report stated that no survey was available of the amount of activities that had taken place in polluted areas and that increased knowledge of seabed pollution would facilitate the estimation of risk and level of health-damaging pollution in the diving bell (possibly because divers carry mud with them from the seabed into the diving bell). Consequently, necessary preventive measures could be implemented prior to an operation or the use of the diving bell. 106. The Thelma Report concluded that there was a lack of knowledge relating to the effects of divers ’ exposure to chemicals. However, North Sea divers continued to live with those effects, and with the uncertainty as to which chemicals had caused them. 3. Particulars on test diving 107. The applicants explained that test diving could be divided into two categories, depending on the objective of the dive. The primary objective of experimental diving had been research, namely to explore and develop new equipment, technical processes, operational procedures and diving tables, and to learn about human reactions to hyperbaric exposure. The objective of verification diving had been to confirm whether certain dives were safe or not. Petroleum and diving companies had carried out verification dives primarily in order to establish and document that work operations were possible at ever greater depths. 108. Test diving had primarily been carried out at the Norsk Undervannsinstitutt AS (NUI) and at its successor NUTEC (mentioned in paragraph 14 above), in Bergen and in the Norwegian fjords. Onshore test diving had taken place in the NUI/ NUTEC facilities, which had enabled diving under similar pressure and conditions to those of North Sea diving. NUI had been established in 1976 by the State body NTNF ( Norges Naturvitenskapelig Forskningsråd, “the Norwegian Scientific Research Council ” ) and Det norske Veritas (an independent foundation providing risk management services). The other owners were the oil companies Statoil, Norsk Hydro and Saga Petroleum. In 1985, NUI was transformed into a private limited liability company with the name NUTEC AS, with Statoil, Norsk Hydro and Saga Petroleum as owners. 109. The applicant, Mr Muledal to some extent, and more particularly the applicant, Mr Lindahl, and also to a certain degree the applicant, Mr Sigurdur P. Hafsteinsson, provided detailed accounts of their individual experiences of test dives which had caused them pain, suffering and injuries. This related, inter alia, to Mr Lindahl ’ s participation in the Deep Ex I dive in 1980 (300 metres) and the Deep Ex II dive in 1981 (504 metres); Mr Hafsteinsson ’ s participation in the Troll dive in 1985 (down to 450 metres) and Mr Muledal ’ s participation in the OTS I, II and III dives in 1986 ( the latter down to 360 metres). Their account was given in Chapters 6, 8 and 9 of Nordsjødykkerne ( ‘ The North Sea Divers ’ ), by Kristin Øye Gjerde and Helge Ryggvik, 2009. These applicants also adduced various further documents, notably (a) a NUTEC Presentation for divers of 25 August (1985); (b) an “ Instruction for Training Programme for Onshore Manned Verification dive ” by Stolt-Nielsen Seaway Contracting A/S and A/S Norske Shell, dated 9 August 1985; (c) Mr Bjørn Gjerdes ’ account of the Troll dive, dated 21 November 2002; (d) a letter from NUI to the Ethical Committee, dated 25 April 1983; (e) a letter from the Ethical Committee to NUI, dated 27 November 1980, enclosing a form for ethical assessment with a recommendation for approval signed on 26 September 1980. 110. Item ( a ) above, under the heading ‘ Excursions/Decompression ’, stated, inter alia : “ In order to enable divers to work at one depth and live at another, excursion tables have been developed. These have been developed by the US Navy down to depths of 300 msw. When testing these tables during the Deep Ex dives, it was found that excursions of 50 msw produced gas bubbles in the arterial part of the circulation without any signs of decompression sickness. In this dive the excursions are limited to 30 msw, and the divers are closely monitored using doppler techniques so that recompression can be performed if any arterial bubbles are detected. ” Under the heading ‘ Monitoring ’ it affirmed : All procedures have been used previously during dives at NUTEC and at other centres, and we have never observed any injuries or adverse health effects from these procedures.” Under the sub-title ‘ Long-term health effects ’ it stated: “We know little about the health hazards associated with diving. Articles in which possible health effects are discussed (Appendix 3) are enclosed. Two of them describe the general effects of diving, and the third describes possible neurological consequences. Because it is of importance to determine if possible health hazards exist and to ensure that the divers ’ health is monitored, an extensive medical programme has been initiated, with testing of all major organ systems pre-dive and post-dive. ” 111. The applicants explained that item (d) related to the dive known as the Comex dive and that item (e) concerned the Deep Ex I dive. 112. The applicants in addition referred to a report of 3 August 1986 by Dr. A.O. Brubak to the Labour Inspection Authority and the Ethical Committee, commenting on the Troll dive in 1985: “ The most important medical finding was without doubt that five out of six divers showed signs of focal central nervous dysfunction immediately after the dive. Even though these findings were only temporary, such findings are very disturbing and must have consequences for our approach to this diving activity. It was previously presumed that diving conducted according to accepted procedures, and where accidents did not occur, was not associated with health risks. Even though diving deeper than 180 m gives rise to certain central nervous symptoms, it has been assumed that these do not have long - term effects. The decompression procedures that we are currently using are considered acceptable if there are no serious clinical symptoms. These assumptions can no longer he considered safe ... ” C. Proceedings before the City Court 113. On 25 February 2005 Mr Vilnes instituted proceedings against the State before the Oslo City Court ( tingrett ), claiming additional compensation on the grounds of negligence ( subjektivt erstatningsansvar ), violations of Norway ’ s obligations under international human rights instruments, notably Articles 2, 3, 8 and 14 of the Convention, and strict liability ( objektivt ansvar ). 114. On 30 December 2005 Mr Muledal, together with Mr J. and Mr K. and twenty-eight other North Sea divers, also brought compensation proceedings raising similar claims. 115. On 31 March 2006 Mr Engebretsen and Mr Eng, who have also lodged an application with a number of other claimants (no. 24329/09), lodged compensation proceedings against the State before the City Court. 116. After a preliminary session on 7 August 2006 the City Court decided to join all the above cases. On 21 January 2007, after a change of lawyer by Mr Engebretsen and Mr Eng, it disjoined the action brought by them from those lodged by other claimants. 117. Pending the outcome of the proceedings, those brought by the above-mentioned group of twenty-eight litigants (including by the third to seventh applicants, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nygård, Mr Nesdal and Mr Jakobsen ) were adjourned. 118. By a judgment of 10 August 2007 the Oslo City Court, sitting in a single - judge formation and after holding a hearing between 26 February and 29 March 2007, ordered the State to pay Mr Vilnes NOK 6,527,302 (approximately 859,00 0 ), plus NOK 4,880,479 in default interest (Mr Muledal was awarded NOK 3,123,420 (approximately 411,000) plus interest, Mr K. was awarded NOK 5,946,939, plus interest, whilst Mr J. ’ s claim was rejected). In reaching these conclusions, the City Court deducted from its estimates of past and future losses in earnings (plus interest) the amounts the plaintiffs had received under the special compensation schemes (plus interest). Since the City Court, as explained below, found the State liable on strict liability grounds, it was the latter ’ s responsibility for the diving activities themselves which mattered. It was therefore unnecessary to point to which parts of the activity had led to unfortunate consequences for each plaintiff. 119. Taking account of the scope of the State ’ s obligations under Article 2 § 1 of the Convention, as interpreted in the court ’ s case-law, ( see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 ‑ III); Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998 ‑ VIII; and Öneryıldız v. Turkey [GC], no. 48939/99, § 71, ECHR 2004 ‑ XII), the City Court found that, during the period under consideration (from 1974 to 1989, when the plaintiffs had been professionally active) the authorities had taken measures that could reasonably be expected of them in order to keep divers ’ lives safe. Accordingly, there had been no violation of Article 2 of the Convention. The City Court also rejected the plaintiffs ’ argument that their right to protection of private life and health under Article 8 of the Convention had been violated. Regard was had to the Court ’ s case-law (in particular López Ostra v. Spain, 9 December 1994, Series A no. 303 ‑ C; Fadeyeva v. Russia, no. 55723/00, ECHR 2005 ‑ IV; and Ledyayeva and Others v. Russia, nos. 53157/99, 5324 7/99, 53695/00 and 56850/00, 26 October 2006 ). 120. As to the question whether the State was liable on strict liability grounds, the City Court considered, inter alia, that any right to compensation for divers could not be curtailed with reference to the argument that they had accepted the risks involved. A broader assessment had to be made, having regard to the interests of the parties to the case and to superior interests of a public character. A central question in any such assessment was to determine the entity which was the nearest to the risk that had triggered the damage and for that reason should be held liable. This was a question that ought to be based on a natural and reasonable weighing of interests, whether there was a need for strict liability in such matters, and whether strict liability would lead to a reasonable outcome. 121. In the present case, a group consisting of approximately 400 strong, healthy young men had taken on jobs as professional divers at the beginning of what ought to be described as Norway ’ s oil adventure. Even though the divers earned very good salaries, the City Court found that many of them had paid an unexpected price in respect of their health. The City Court noted the observation in the Lossius Commission ’ s report ( NOU 2003:5 p. 102) that a disturbing number of divers were on disability pensions, and that relatively young people, even some who were in their forties, had been affected. This, together with the great number of cases of psychological damage, had suggested that many divers had carried a heavier burden than most people had to bear in their professional lives. 122. Whilst finding irrelevant as a starting point how much Norwegian society had benefitted from oil revenues, the result of the oil adventure, namely that Norway had become one of the world ’ s richest nations, was relevant in the balancing of interests. Even though the State ’ s links to diving activities would be stretched beyond what was clearly covered by judicial practice, the City Court found that, on the whole, making the State liable for the damage to divers ’ health would be reasonable and equitable. In view of these considerations, the City Court found the State liable on objective grounds. It was therefore not necessary to consider whether it was also liable on subjective grounds. D. Appeal to the High Court 123. The State appealed against the City Court ’ s judgment to the Borgarting High Court ( lagmannsrett ). Mr Vilnes and Mr Muledal lodged an appeal (as also did Mr J. and Mr K.) arguing that the amount of compensation awarded had been too low, and maintained their request for a judgment holding that the Convention had been violated. The Offshoredykkerunionen (Offshore Divers ’ Union) and IndustryEnergy intervened in support of Mr Muledal and other plaintiffs (but not Mr Vilnes ). 124. Between 12 August and 18 September 2008 the High Court held an oral hearing at which the parties with their representatives were heard, as were the interveners, forty-three witnesses, and several expert witnesses. 125. In a judgment of 28 November 2008 the High Court found for the State and dismissed the compensation claims brought by Mr Vilnes, Mr Muledal and the other plaintiffs, finding no basis for holding the State liable on (1) strict liability grounds, (2) on employer ’ s liability grounds or (3) on grounds of human rights violations. The High Court ’ s reasoning in respect of the second ground included, inter alia, the following considerations. 126. According to section 2-1 of the Damage Compensation Act 1969, the State could be held liable as an employer for damage caused with intent or negligence by an employee in the performance of his or her duties. It was not necessary to identify the employee who had committed the fault or to link the damage to a specific act. The liability covered the overall effect of individual acts, even though the effect of each act was not sufficient to establish liability. As a starting point, the liability also covered acts carried out in the exercise of public authority. However, Parliament ’ s legislative and budgetary activities were not covered. 127. Nonetheless, a number of the matters raised by the divers could have been taken up in connection with the security assessment made by control and supervisory bodies prior to their authorising specific diving operations. For example, they could have set as a condition that slow diving tables be used with caution. 128. With the benefit of hindsight, the High Court could agree with the counter-appellants that it might seem as if the applicable rules had not always been implemented. In certain instances authorisation had been granted after the operations. A practice had been developed whereby dispensation had been granted on the basis of agreements between the operator, the divers, the divers ’ unions and the safety deputy. This practice had the drawback that the individual diver was thereby in a weak negotiating position, because of a risk under certain circumstances of being moved onshore when he was perceived as being difficult. Time-limits for applications and working hours had not always been respected. The High Court also agreed that under Article 3.4 (1) in conjunction with Article 3(k) of its Appendix of the 1978 Regulation (see paragraph 168 below ), that the Petroleum Directorate could demand that the diving table used in a given diving operation be produced. Whether it was safe to use a table had been something that should have formed part of the basis for authorising a diving operation. It did not seem reassuring that tables had not been reviewed because employees of the Petroleum Directorate had not understood them. 129. However, the assessment of what requirements could reasonably be imposed on the service and the activities had to be made in the light of the then prevailing perceptions of the risk involved in diving. The only way to remove all risk would have been to impose a total prohibition on diving. That had never been in question either in Norway or in any other countries. The prevailing view was that diving was justified even though diving led to fatal and other serious accidents. The question for a supervisory authority had therefore always been centred on the level of risk that was justifiable. Whether to grant authorisation for a given diving operation depended on a balancing of interests. Those of the divers weighed heavily, but were not the only ones. There was reason to display judicial restraint in reviewing this balancing exercise, especially after such a long lapse of time and changes in perceptions. 130. The High Court pointed out that assessment of what could be regarded as a justifiable risk ought to be based on the knowledge and perceptions of this matter at the time in question. That sudden changes in pressure could have a great impact on the organism and could in the worst case be life-threatening had been known for a long time. However, there had been less knowledge about the long-term effects. On the evidence the High Court found it established that it was widely believed that diving did not have serious long-term effects in the absence of decompression sickness. Where such illness had only involved temporary pain, notably after treatment in a compression chamber, the condition had also been regarded as relatively risk - free. It appeared that decompression sickness had been regarded as a part of diving, an inconvenience to be avoided but which had to be accepted when it occurred. It had been treated with recompression and recovery was then deemed to have taken place ( see NOU 2003:5, p. 76). 131. Opinions about the long-term effects of diving had not been entirely unequivocal. A number of reports, scientific opinions, medical statements, articles and so on concerning the possible long-term effects had been adduced before the High Court, and the parties had relied on those of the opinions which supported their own views. The High Court observed that present-day knowledge was of no importance for the assessment of liability to pay compensation in respect of events that had occurred many years ago. It was not possible, nor necessary, for the High Court to take a stance on the disagreement between scientists and in the scientific milieu. It was sufficient to note that there existed a disagreement. The High Court found it established that in the context of the issue of liability to pay compensation there had been scientific support for the perceptions of the State as to the possibility of long-term effects. That there were other scientists who held other views could not be decisive. 132. The High Court found it established that the psychological effects of extreme, life-threatening and, especially, repeated incidents had been known. All the counter-appellants had described incidents that involved such a degree of stress that their condition could be regarded as PTSD. The High Court found it probable that Mr Muledal and Mr C had developed PTSD. Mr Vilnes had suffered minor brain damage and had in this connection developed an organic personality disorder. The High Court agreed with the divers that the State ought to have been aware of these aspects of diving activities and that a number of divers probably would suffer psychological damage. The Labour Inspection Authority expected that diving at ever greater depths might lead to psychological problems for divers. A stricter implementation of the requirement that diving should be safe would probably have contributed to reducing the stress level. Nevertheless, a certain level of danger and stress had to be accepted if diving was to take place. It had been impossible to say to what extent the burden of that stress could have been reduced and whether such a reduction would have been sufficient to prevent the counter-appellants from sustaining psychological damage. A certain level of stress had in any event been inevitable. 133. The High Court agreed with the counter-appellants that, according to present - day opinions, it might seem imprudent to have authorised diving operations involving the use of decompression tables that had previously led to accidents. However, those tables were in common use at the time, and not just in the Norwegian part of the North Sea. Apart from Norway, no country had introduced standard decompression tables. The accidents that had occurred had never given rise to legal proceedings against the State. While it might have been desirable for the supervisory authorities to have applied a stricter practice with regard to the authorisation of rapid decompression tables, in view of the conditions at the time the High Court did not consider that this could justify liability. 134. Nor did the High Court find that the way the authorities had handled licensing matters had disregarded safety in a manner giving rise to liability, even though from the divers ’ point of view it would have been desirable for their interests to have been better protected. 135. The State ’ s ownership of the petroleum resources could not justify liability for accidents related to oil extraction. It had been the position that the licence holders had acquired ownership of the petroleum produced (section 3-3(3), second sentence, of the Petroleum Act), thereby absolving the State from liability as owner, and that State ownership had been limited to the oil resources under the sea floor. 136. Even though the supervisory authorities had committed certain errors, there was no support for the conclusion that divers ’ working environment on the Norwegian continental shelf had been regarded as worse than that in other countries extracting oil in the same maritime area. The accident rates had not been significantly higher in the Norwegian area. 137. The High Court did not share Mr Vilnes ’ s view that the State had been the actual wrongdoer. The wrongdoers had been those who had conducted the diving activities. In addition, the licence holders had been jointly and severally liable for the damage (section 10-9 of the Petroleum Act). The assertion that diving - especially North Sea diving in its earlier phase - involved extreme risks called for no further explanation. The purpose of putting in place supervision and a legal framework had been to reduce that risk. An alternative for the State would have been to avoid liability by doing nothing. It did not follow from the fact that the State by taking different measures had sought to reduce the risks involved in a lawful but dangerous activity, that the State had thereby taken on the responsibility for ensuring that adequate measures were in place at all times. The fact that the State had contributed significantly to a decrease in the accident rate over time did not mean that the previous situation had been unjustifiable. 138. Mr Vilnes had cited certain specific incidents, firstly at the diving vessel Arctic Surveyor in 1977, where he had been exposed to serious decompression sickness, and secondly at the diving vessel Tender Comet in 1983, relating to dispensation from the maximum length of the umbilical. 139. As regards his experience at the Arctic Surveyor, the High Court found that his decompression sickness in 1977 had most likely been caused by the facts that the diving company had used too rapid a decompression table and that there was no medical doctor who could assist him. This incident had probably been a strong contributory cause of Mr Vilnes ’ s brain and spinal injuries. With hindsight there was plenty to contribute to the view that the diving operation should not have been authorised, and that Mr Vilnes should have received medical follow-up. Nonetheless, it was not possible to evaluate at the time of the High Court judgment whether the risk level had departed from what in 1977 had been considered justifiable in diving, in accordance with Article 121 of the Security Regulation, and the normal risk level in the North Sea. Mr Vilnes ’ s injuries had only been diagnosed later. In the High Court ’ s view there had been no basis for holding the State liable for authorising the diving operation in question. 140. As regards the diving operation from the Tender Comet, the High Court noted that Mr Vilnes ’ s criticism had been upheld, and that in 1983 employees of the Petroleum Directorate had disagreed on whether the operation should have been authorised or stopped. However, if the Petroleum Directorate had committed faults, this did not necessarily mean that those requirements that could reasonably be set for their services had been ignored. In this regard, responsibility also lay with the operator and the diving company, and authorisation did not mean that the State had taken over financial responsibility for any faults imputable to the operator and the company. Even though it was established that the Petroleum Directorate should not have authorised the operation, this would not suffice to make the State liable. E. Appeal to the Supreme Court 141. Mr Vilnes appealed to the Supreme Court, complaining that the Norwegian authorities had given prior approval to diving operations carried out from the vessels (1) Arctic Surveyor and (2) Tender Comet, (3) had authorised dispensation from the requirements regarding the maximum length of the umbilical used in a diving operation from the Tender Comet, and (4) had failed to stop diving operations from the Tender Comet. He maintained that, regardless of whether there had been any negligence, the State was liable to pay him compensation on the ground that these acts or failure to act had been in breach of the applicable rules requiring that diving take place in a safe manner ( Article 121 of the Royal Decree of 25 August 1967). As an alternative, he submitted that regardless of whether the said acts or failure to act had been unlawful, they had involved a failure on the part of the State to comply with its obligations under Articles 2, 3, 8, and 14 of the Convention. As a further alternative, Mr Vilnes argued that the legal framework as such had entailed a violation of the Convention. In a further submission he stated that the State had been liable as an employer under section 2-1 of the 1969 Damage Compensation Act. Also in this context he cited the Convention. Finally, he argued that the State had been responsible on grounds of strict liability for the damage he had sustained from the diving operations. In his grounds of appeal he put forward a number of arguments, including “lack of information from the State” while referring to the arguments he had put before the High Court. 142. Mr Muledal appealed against the High Court ’ s assessment of the facts and application of the law. Amongst many other arguments, he submitted that the Norwegian authorities lacked competence to assess the companies ’ tables, and that they had not acquired such competence even though they were aware that the tables were a factor of competition. 1. Partial grant of leave to appeal 143. On 24 March 2009 the Appeals Leave Committee of the Supreme Court (a) refused the plaintiffs leave to appeal with respect to the assessment of the evidence regarding the question of liability whilst allowing them to adduce certain supplementary evidence and (b) refused Mr Vilnes leave with regard to his liability claims concerning points (1) to (4) above. As regards the remainder, the Appeals Leave Committee granted the plaintiffs leave to pursue their appeal. It further decided that the appeal proceedings should be limited to the issue of grounds for liability, and postponed the issues of causality and assessment of damages to a later stage. 2. Supreme Court judgment of 8 October 2009 144. By a judgment of 8 October 2009 the Supreme Court unanimously rejected their appeals. (a) Question of strict liability 145. First, in considering whether the State could be held liable on the basis of the general principle on strict liability, the Supreme Court observed, inter alia, that the fact that diving was a risky activity ought to be the starting point for any assessment. Nonetheless, it had been clear that the risk to which the North Sea divers had been exposed exceeded what they had the right to expect. When the diving had taken place, uncertainty had prevailed as to the injuries that later materialised. The view that many deep - sea dives could lead to neurological injuries had emerged only gradually. Even when the Lossius Commission had produced its report at the end of 2002, it had concluded that well controlled research on delayed effects was missing ( NOU 2003:5, p. 43). Under these circumstances, the divers could not be regarded as having accepted the risk of after-effects that were unknown to them. 146. The salient point in the assessment was whether there was a sufficient link between the State and the harmful activity. Since the point of departure in Norwegian law was that only the owner or proprietor of the relevant activity could be held liable, and since in this case the State was not the owner or proprietor of the diving businesses, the decisive matter would be whether other sufficient links existed. In this context the Supreme Court thoroughly examined in turn the various arguments advanced by the claimants to establish the existence of such a link, observing notably the following: (a) While section 2 (1) of the Continental Shelf Act provided that the right to submarine natural resources was vested in the State, the provision was intended to clarify or confirm Norwegian jurisdiction over the continental shelf and had little weight in the context of the law of torts. The State had not elected to carry out petroleum activities on its own, but had left this task to others, under State control. When petroleum was extracted from the seabed, the ownership of the oil and gas passed to the licensee. The operations took place on behalf of the oil companies, who bore the risks attached, and not of the State. The fact that the State was the original licensee was thus of lesser importance. (b) The State ’ s wide-ranging control over oil activities had limited weight in an assessment related to the law of torts. The State had not carried out test drilling for oil, had not carried out petroleum production under its own auspices, and had not directly been an employer or a principal in the diving activities. Its general control thus gave little guidance as regards the question of liability for this activity. If viewed independently, the control argument would otherwise lead to the State being held strictly liable for all damages in connection with oil activities in the North Sea; case - law provided no basis for such a broad conclusion. (c) Even though the legislative history of the Taxation of Subsea Deposits Act referred to the State ’ s ownership right to the resources, the State ’ s powers to impose taxes and fees in the petroleum sector were not different in principle from those it exercised in other areas of society. It could not make a difference whether the State ’ s revenues in this area were high, or whether special types of fees had been stipulated for the Continental Shelf. Such special features did not alter the principle that the State collected taxes and fees from the whole of Norwegian society. Nor did the tax revenues, etc. from the North Sea create any special connection to that part of the oil activities that related to the diving activity. (d) For similar reasons, the arguments concerning the State ’ s business operations or financial involvement could not be upheld either. While it was certainly true that the State had secured substantial ownership interests in important fields for Statoil and “SDØE ” ( Statens direkte økonomiske engasjement – Direct Financial Participation by the State), Statoil was a separate legal entity, different from the State. This ought to be the decisive factor. The Supreme Court concluded that the circumstances adduced, whether considered on their own or together, did not involve a sufficiently close connection between the State and the harmful activity to justify holding the State liable on the basis of the general principle of strict liability. While it was true that the State had been actively involved in the oil sector, there was no difference of principle between this and a number of other areas. As regards deep-sea diving, the State ’ s role had been limited to supervision and control. This was not something which created a close connection and could not be distinguished from other instances of public supervision and control. (b) Question of employer ’ s liability 147. Nor did the Supreme Court find that the State was liable as an employer for negligence, under section 2-1 of the Damage Compensation Act 1969, notably on account of the activities performed by the Labour Inspectorate and the Petroleum Directorate. The Supreme Court had regard to the development of the relevant regulations aimed at safeguarding security, the manner of organising the control and implementation of the safety rules, the practice of giving dispensations, inspections, training, diving equipment. The Supreme Court found no basis for holding that either of the above instances had been passive. Its assessment comprised the following reasons : (a) Whilst it had been assumed in the legislative history of the 1969 Act that a more lenient standard of care applied to certain forms of public control, assistance and service enterprises compared with that which followed from the general rules for employer ’ s liability, those more lenient standards had not been applied in the case-law. It ought to be determined what demands could reasonably be placed on the enterprise concerned. Relevant criteria included the general risk of harm in the area concerned, the financial resources at the disposal of the authorities, the nature of the interests that had suffered harm, and the opportunities the injured party had to insure against harm and omissions; while actions and omissions ought to be distinguished from each other. (b) Thus, there was no basis for applying a more lenient standard of care in relation to the Norwegian Labour Inspection Authority ’ s and subsequently the Norwegian Petroleum Directorate ’ s issuing of permits to carry out diving. Under the applicable regulations, in order to obtain authorisation, first from the Labour Inspection Authority and later from the Petroleum Directorate, the diving companies had to submit a plan for a diving operation. Since it was the responsibility of the authorities to consider whether the diving could be carried out safely, they had been actively involved in the matter and could prevent a given diving operation from taking place. (c) At the same time, regard ought to be had to the knowledge possessed at the material time [1]. Norway had no previous experience with petroleum activities. As emphasised by the Lossius Commission, at the beginning it had been foreign players who possessed the technical knowledge about deep- sea diving, and the medical and technical research which existed in this field at the time was rather sparse ( NOU 2003: 5, p. 51 ). To acquire knowledge and experience would obviously take time ( pp. 50-55). The authorities ’ supervision was naturally also in line with this. Thus, the manner of application of the general duty of care ought not to be based on hindsight. Also, diving was in itself a risky activity, especially deep- sea diving related to the development of oilfields. (d) Concerning the regulatory framework that had been in place at the relevant time [2], regard was first had to the rules contained in the Royal Decrees of 15 May 1964, 9 April 1965 and 25 August 1967 and the Circular of 25 March 1971 communicated by the Labour Inspection Authority. Thus far in the development, no factors had been pointed to that could give rise to liability. The rules had been issued early, their contents was prudent and, together with the Circular, showed that the authorities had taken steps to prevent injury. Although it might be the case that the 1978 regulations should have been adopted earlier, and that the diver organisations ’ viewpoints should have been reflected to a greater degree, such a general criticism of the rules - which seemed to underlie parts of the divers ’ arguments - could clearly not lead to liability. Like the High Court, the Supreme Court placed emphasis on the fact that Norway was the first country after the United Kingdom to introduce rules for diving at sea, while the USA adopted rules in 1981 and Denmark in 1995. The High Court has also found that the regulations that were in force prior to the adoption of the 1978 Regulations were not worse than in other countries. (e) From 1979, the Petroleum Directorate had revised the regulations. This had led to the introduction in 1980 of diver certificates and new competency requirements, maximum limits for the time a diver could spend in saturation, in the water and in diving bells, as well as stricter requirements for reporting accidents. Among other changes, it could be mentioned the issuance of safety reports from April 1980, which provided information on incidents or problems that the sector should be aware of. In the fall of 1990, the Petroleum Directorate had taken the initiative for a project to standardise the compression and decompression tables, which resulted in recommendations that were still in use when the Lossius Commission submitted its study ( NOU 2003:5, pp. 81-82). These factors showed that the Petroleum Directorate did not display passivity but on the contrary that it took active steps to improve the rules relating to divers ’ safety. ( f ) Publicly funded supervision of diving activities had been established – carried out primarily by one full- time technical officer of the Labour Inspection Authority until 1 April 1978 and thereafter by five officers of the Petroleum Directorate, had not been done irresponsibly. Although from time to time the work pressure under which the Labour Inspection Authority operated had been too great to enable it to carry out as many inspections as desirable, additional assistance was hired in depending on the circumstances, though it was not the task of the judiciary to review budgetary considerations. The Lossius Commission had also emphasised that no personal criticism was attributable to the responsible party in the Labour Inspection Authority ( NOU 2003: 5, pp. 70-71 ). Supervision had become more efficient after the Petroleum Directorate ’ s team of five officers led by an educated and experienced diver had taken over ( pp. 79 and 82 ). (g) As regards the implementation of the rules, the authorities had in the main been aware of the North Sea divers ’ working conditions and demands for improvements. As observed by the High Court in the main the State had been aware of the conditions in the North Sea, including divers ’ working conditions. However, because of deficient reporting they had probably not had a complete picture of the extent of near-accidents and other undesirable occurrences. The State had also been aware of divers ’ demands for improvements. ( h ) As to the effects of diving, it had been known that sudden changes in pressure could have a great impact on the body (and, as pointed out by the High Court, could in the worst cases be life-threatening) but there had been less knowledge at the time about the long-term effects. In 1983 the Norwegian authorities had taken the initiative to hold a conference in Stavanger in order to discuss the existence of undesirable medical consequences of deep sea diving. American, British and French specialists in diving medicine had held that diving in accordance with the regulations was safe, whilst others, including Norwegian researchers, had not been convinced of this. At a consensus conference held ten years later in Godøysund the position had been largely the same, with a leaning towards the possibility that it might cause neurological and psychiatric after-effects. In 2002 the Lossius Commission had concluded that there was no clear evidence that could answer the question. On the evidence, the High Court had found it established that it was widely believed that diving did not have serious long-term effects in the absence of decompression sickness. Where such illness had only involved temporary pain, notably after treatment in a compression chamber, the condition had also been regarded as relatively risk- free. It appeared that decompression sickness had been regarded as a part of diving, an inconvenience to be avoided but one which had to be accepted. It had been treated with recompression and this treatment had been regarded as all that was necessary ( NOU 2003 :5, p. 76 ). ( i ) Knowledge about the psychological effects of extreme, life - threatening situations, especially repeated experiences of this kind, in the form of PTSD, was possibly of more recent date. ( j ) As regards the administrative dispensation practices concerning the applicable saturation time and length of the umbilical (see paragraphs 77 and 78 above), the relatively strict rules combined with a lenient attitude to the issue of dispensations had been based on a balancing of interests, hence the view that it would lead to better control than under more liberal rules. Even though dispensations had been granted regularly, this did not appear to have been negligent. According to the regulations, all applications for dispensation had to include a statement from the divers ’ representative and diving physician that the proposal had been considered and found to be in order. The documentation presented to the Supreme Court showed that this practice was followed strictly. Emphasis was also placed on the divers giving their consent. It was otherwise of interest to note that the United Kingdom had still more liberal regulations (maximum saturation time of twenty-eight days and no specific umbilical restriction). On the whole the arrangement did not appear to have been irresponsible and no information concerning specific dispensations pertaining to the appellants suggested a different assessment. ( k ) In this context, the Supreme Court examined the question of decompression tables : “110. An important issue in the case has been which diving tables were accepted as regards how the regulations were put into practice. Decompression tables that were too fast could, as mentioned, lead to decompression sickness. The appellants have argued that here the Petroleum Directorate ’ s control was too lax, which led to injury, and they refer to the fact that standard tables were subsequently introduced. 111. When the companies applied for consent to dive that was based on rapid ascent they normally had the divers ’ consent. The problem was that the diving companies regarded the decompression tables as confidential for competitive reasons, since companies with fast tables were often preferred when assignments were awarded. When drilling for oil in the North Sea started, bounce diving tables developed by the US Navy were utilised. The Norwegian Labour Inspection Authority did not have access to tables for saturation diving, and in late 1972 took the initiative to develop their own, Norwegian tables. A German research institution was contacted, but the work was difficult, see in more detail NOU 2003:5, pages 74-76. In 1984, the Petroleum Directorate expressed concern regarding the variations in the tables and announced a revision. Standardised tables were not achieved until 1990, following a project financed by the Petroleum Directorate. Since then, decompression sickness has been extremely rare. 112. The assessment of why the supervisory authority allowed the diving companies to use decompression tables that could lead to decompression sickness must be carried out in light of the knowledge and attitudes that prevailed at the time in question. The authorities did not have knowledge about which tables would eliminate decompression sickness. As previously noted, there was widespread uncertainty concerning the harmful effects, and in the industry there was a perception that decompression sickness was an inconvenience one attempted to avoid, but that was regarded as being part of the work. It has been stated that other countries still do not have standardised tables. 113. ... The reasons why the divers generally did not speak up seem to have been a sort of professional pride, but also the experience of pressure from the diving companies. In some companies, ‘ difficult ’ divers could be sent to land. As mentioned, the Petroleum Directorate was aware of this. In a newspaper interview, the head of the Petroleum Directorate ’ s diving section encouraged the divers to speak up about blameworthy conditions. Whether or not this had any effect is unclear. In any event, the lack of reporting had to have an impact on the effectiveness of the supervision. ” ( l ) On the basis of an overall assessment, the authorities ’ practices could not be characterised as negligent. In this connection regard had been had to the appellants ’ arguments concerning the absence of a physician on the diving vessel and that the pressure chamber had not been easily accessible. The companies had had diving doctors whom they could consult. First and foremost, it had been for the diving companies and the oil companies to ensure that operations at their account and risk be carried out in accordance with the regulatory requirements that diving should take place in a prudent manner. This was not altered by the fact that medical experts generally indicated a need for more knowledge about diving-related medicine and greater pressure chamber capacity. ( m ) As regards the applicants ’ general criticism of the inspections, those carried out by the Labour Inspection Authority had been fewer than those by the Petroleum Directorate, which could mainly be explained by the resources at their disposal. ( n ) There was no information to the effect that other divers ’ lack of professional qualifications had created situations that had endangered Mr Vilnes and Mr Muledal. ( o ) The rules imposed on the diving companies contained detailed safety requirements regarding diving equipment. There was little information about episodes concerning the appellants, and no blameworthy passivity on the part of the authorities had been documented. An illustration of active steps taken had been the Petroleum Directorate ’ s inspection of Tender Comet in 1983. ( p ) The issue of hyperbaric evacuation ( concerning the case of Mr Muledal, see paragraphs 43 and 44 above ) was addressed in the 1978 Regulations. No passivity had been displayed by the Labour Inspection Authority or the Petroleum Directorate, nor could it be assumed that the problem had had any consequences for the appellants. 148. To the above, the Supreme Court added that many of the factors pointed out by the divers, such as too- rapid decompression tables or equipment defects, might very well have caused considerable additional strain for many divers. However, this could not imply any liability on the part of the Labour Inspection Authority or the Norwegian Petroleum Directorate, as long as they did what could reasonably be expected of them in carrying out their supervision. 149. Finally, the Supreme Court examined the complaint made, inter alia, by Mr Muledal regarding test diving in relation to his participation in the OTS III dive, which had lasted for twenty-seven days from 6 November 1986, and in which the deepest dive had gone down to 360 metres. It noted that test dives had taken place at a research institution, NUTEC, which was an independent legal subject, separate from the State (see paragraph 108 above) and that, accordingly, any compensation claim ought to be directed at NUTEC. The test dives had not been commissioned by the State, but had been initiated and primarily financed by the oil companies. The appellants ’ suggestion that by contributing to making feasible work (the laying of pipelines and oil production) at great depths the test dives had served the interests of the State could not result in the State being held liable 150. Any such liability would have to be founded on the authorities ’ responsibility for supervision of test dives. The Supreme Court noted that the test dives had raised complicated medical and technical diving questions. In view of the procedures in place, the thorough examination by the competent bodies before the test dives were authorised, as well as the advance information provided to the divers (that it was voluntary and that they could withdraw) and the supervision by medical doctors, it found no basis for holding the Labour Inspection Authority liable for negligence in its authorisation and supervision thereof. To the extent that the agreed procedures had not been adhered to during or immediately after each dive, any claim for damages would have to be addressed to the companies or institutions that had implemented the dive, not against the State ’ s supervisory authorities. (c) Question of liability on grounds of human rights violations 151. Lastly, the Supreme Court considered whether there had been a violation of the Convention. 152. As regards the plaintiffs ’ complaint under Article 2 of the Convention, the Supreme Court observed that this provision was applicable not only in the event of loss of life but also when in the circumstances there was a threat to physical integrity ( see Budayeva and Others v. Russia, nos. 15339/02, 21166/02, 20058/02, 116 73/02 and 15343/02, § 146, ECHR 2008 (extracts) ). This provision further obliged States to refrain from deprivation of life and to take appropriate steps to safeguard lives. This obligation to safeguard lives entailed above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. This applied in the context of any activity, whether public or not, in which the right to life was at stake ( ibid., §§ 128-31, a case which concerned a landslide). The Supreme Court also took note of Guerra and Others v. Italy (emission of poisonous gases) (19 February 1998, Reports of Judgments and Decisions 1998 ‑ I.); L.C.B., cited above, (health hazards from atomic explosions); and Öneryıldız, cited above, (methane gas explosion at a rubbish heap). The Supreme Court observed that none of these cases had concerned threats to life occasioned by professional risk. On the latter subject, as far as the Supreme Court was aware, there were no judgments delivered by the European Court, though its statements of principles had been formulated in such a general way that it could not be excluded that it would at least to some degree apply Article 2 on such matters. It was not necessary to go further into this, since there had in any event been no breach of this provision in the present case. 153. The Supreme Court observed that from the European Court ’ s case-law it followed that in the event that there was a real and immediate danger to life, and this danger was or ought to have been known to the authorities, the latter might be required to take special measures. In the assessment of what steps ought to be taken, the State would in principle have a margin of appreciation. An impossible or disproportionate burden could not be imposed, since the State had to make operational choices in terms of priorities and resources ( see Budayeva and Others, cited above, §§ 134 and 135; see also L.C.B., cited above, § 38; and Öneryıldız, cited above, §§ 100 ‑ 101). 154. However, in the instant case, the State had in accordance with the law adopted extensive regulations on diving activities. An administrative framework had been set up, and supervision of it had been entrusted to the Labour Inspection Authority and the Petroleum Directorate. Moreover, funding had been allocated to their activities according to priorities and in the light of available resources. There had been nothing to suggest that the supervisory bodies in question had been passive when they had become aware that transgressions of the rules involving risk had occurred. The measures taken had been based on what they knew at the material time. Therefore, it did not appear that Article 2 of the Convention had been violated. 155. As regards the plaintiffs ’ complaint of violation of Article 8 of the Convention, the Supreme Court took note of their argument based on the European Court ’ s case-law in relation to search and seizure of documents on professional premises, notably Niemietz v. Germany, 16 December 1992, Series A no. 251 ‑ B ). However, the subject matter of such cases had been so different from that at issue in the present case that the Supreme Court could not rely on it. 156. The plaintiffs had also prayed in aid case-law concerning health risks caused by pollution. However, in this regard the Supreme Court observed that Article 8 had come into play mainly because private and family life was enjoyed in the home. On this point the Supreme Court quoted the following passage from Giacomelli v. Italy, no. 59909/00, § 76, ECHR 2006 ‑ XII : “Article 8 of the Convention protects the individual ’ s right to respect for his private and family life, his home and his correspondence. A home will usually be the place, the physically defined area, where private and family life develops. The individual has a right to respect for his home, meaning not just the right to the actual physical area, but also to the quiet enjoyment of that area. Breaches of the right to respect for the home are not confined to concrete or physical breaches, such as unauthorised entry into a person ’ s home, but also include those that are not concrete or physical, such as noise, emissions, smells or other forms of interference. A serious breach may result in the breach of a person ’ s right to respect for his home if it prevents him from enjoying the amenities of his home.” 157. Thus, also the European Court ’ s case-law regarding damage to health resulting from pollution was not immediately comparable to the present case. 158. The Supreme Court noted that Roche v. the United Kingdom [GC] (no. 325 55/96, §§ 155-169, ECHR 2005 ‑ X) was the only judgment cited by the parties that had concerned possible damage to health sustained in connection with professional activities. The applicant in that case had served in the British Army and had for a period voluntarily participated in experiments on mustard gas and nerve gas. He had claimed that this had caused him injuries and demanded access to the case documents. The European Court had found Article 8 applicable and that this provision had been violated on account of the refusal to grant the applicant access to the documents in question. This judgment gave support to the view that test diving was covered by Article 8 but not risky diving in general. However, it was not necessary to determine this question, since any obligation to take safety measures that might follow from Article 8 had in any event been complied with. In this connection, reference was made to the discussion above under Article 2. 159. Also, there could be no question that the conditions pertaining to diving generally, as alleged by Mr Vilnes, could amount to inhuman and degrading treatment in the sense of Article 3. 160. As regards the test dives carried out at NUTEC, in which Mr Muledal and Mr C had participated, the Supreme Court observed that under Article 7 of the 1966 International Covenant on Civil and Political Rights, no one should be subjected without his free consent to medical or scientific experimentation. A similar protection probably followed from Article 3 of the European Convention. In the present case, it was clear that the divers had been informed about the test dives beforehand. A written guide had been produced, and there was nothing to indicate that the test dives in question had been carried out otherwise than planned. The test dives had been approved in accordance with the Helsinki Declaration prepared by the World Association of Doctors in 1964, NUTEC practice and the guidelines of the Ministry of Social Affairs of 8 June 1984 on the mandate of regional committees on the ethics of medical research. There was no support for holding that the delayed injuries sustained by Mr Muledal and Mr K. were attributable to these test dives. The tests had been carried out in the light of the information available at the time, from which it had appeared that test dives involving far greater depths had been carried out in the USA, the United Kingdom, France and Switzerland. Accordingly, there had been no breach of Articles 3 or 8 of the Convention or of Article 7 of the International Covenant. 161. Nor did the Supreme Court find any support for Mr Vilnes ’ s complaint of violation of Article 14 of the Convention on the ground that the protection level for diving in the oil sector had been lower than for work in other sectors. This provision only applied to differential treatment that was deemed unjustified in relation to rights that were protected by the Convention. His complaint was of a general nature and did not specify which rights that he – or possibly other divers – had been deprived of. To the extent that he could be considered to complain that divers for a period did not fall within the 1977 Working Environment Act ( arbeidsmiljøloven ), his argument could not succeed. | This case concerned complaints by former divers that they were disabled as a result of diving in the North Sea for oil companies during the pioneer period of oil exploration (from 1965 to 1990). All the applicants complained that Norway had failed to take appropriate steps to protect deep sea divers’ health and lives when working in the North Sea and, as concerned three of the applicants, at testing facilities. They all also alleged that the State had failed to provide them with adequate information about the risks involved in both deep sea diving and test diving. |
570 | Cases in which the Court found a violation of Article 4 of Protocol No. 4 to the Convention | THE CIRCUMSTANCES OF THE CASE 8. The facts of the cases, as submitted by the parties, may be summarised as follows. M.K. v. Poland, application no. 40503/17 The applicant’s situation prior to the application for an interim measure The applicant’s situation prior to the application for an interim measure The applicant’s situation prior to the application for an interim measure 9. The applicant, Mr M.K., is a Russian national. 10. In the period from July 2016 until 8 June 2017 he travelled to the Polish-Belarusian border crossing at Terespol on approximately thirty occasions. He submitted that each time that he had visited that border crossing he had expressly stated a wish to lodge an application for international protection; on at least several of those occasions, he had presented that application in written form (a copy of this document was submitted to the Court). 11. The applicant also submitted that on one occasion (on 17 March 2017) his representative had also been at the border checkpoint at Terespol but had not been allowed to meet with the applicant or be present at his questioning by the border guards. The presence of the applicant’s lawyer at the border was a part of a wider effort to provide legal assistance to asylum ‑ seekers organised by a group of lawyers from the Warsaw Bar Association. On the same day fifty-one persons – mainly of Chechen origin – presented themselves at the border checkpoint at Terespol. At the same time fourteen lawyers carrying powers of attorney from those persons were at the border and requested to be allowed to assist their clients during the second stage of the border-control process. Their request was refused. All those represented by the lawyers in question were returned to Belarus without the possibility of meeting with their representatives. 12. According to the applicant, when talking to the border guards he expressed fears for his safety. He told the guards that he was from Chechnya and that before leaving that region he had been detained numerous times without any legal basis. He told them that on one occasion, while being questioned by the Chechen police, he had been tortured and forced to sign a statement agreeing to serve as an informant for the police; subsequently, the police had tried to find and arrest him. He presented to the border guards documents confirming that after being tortured he had developed post ‑ traumatic stress disorder. He also told the border guards that he could not remain in Belarus as his visa had expired and that in practice it would be impossible for him to obtain international protection there. The border guards then summarily turned him away, sending him back to Belarus. 13. On each occasion that the applicant presented himself at the border crossing at Terespol administrative decisions were issued turning him away from the Polish border on the grounds that he did not have any documents authorising his entry into Poland and that he had not stated that he had been at risk of persecution in his home country but was in fact trying to emigrate for economic or personal reasons. The official notes prepared by the officers of the Border Guard reported that the applicant had indicated, inter alia : his desire to live and work in Poland or Germany, his desire to find a wife and start a family in Poland, his lack of any family in Chechnya, his wish to travel to join friends residing in Europe, his lack of employment and money, his refusal to denounce his friends to the authorities, and his wish to escape from the Chechen justice system in order to avoid responsibility for an accident in which someone had died. 14. The applicant appealed against at least one of those administrative decisions (that decision had been issued on 17 March 2017). On 12 June 2017 the head of the National Border Guard ( Komendant Główny Straży Granicznej ) upheld the decision in question. The applicant lodged an appeal with the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny w Warszawie ). The proceedings before that court are pending. Interim measure indicated by the Court 15. On 8 June 2017, when the applicant presented himself at the border crossing at Terespol, his representative lodged a request under Rule 39 of the Rules of Court asking the Court to prevent the applicant from being removed to Belarus. She indicated that, as a Russian citizen, the applicant had no genuine possibility of applying for international protection in Belarus and was at constant risk of expulsion to Chechnya, where he would face the threat of torture or of other forms of inhuman and degrading treatment. 16. On 8 June 2017, at 10.52 a.m., the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicant should not be removed to Belarus until 23 June 2017. The Government were informed of the interim measure before the planned time of expulsion. Nevertheless, the applicant was returned to Belarus at 11.25 a.m. He appealed against that decision. 17. On 1 September 2017 the head of the National Border Guard upheld that decision. He stated, inter alia, that under domestic law, an interview with a foreigner who did not have documents allowing him to cross the Polish border was to be held by an officer of the Border Guard without the participation of other persons, including the lawyer representing that foreigner. The head of the National Border Guard added that the applicant had not expressed any wish to apply for international protection, as had he lodged such an application, the border guards would have received it. According to the head of the National Border Guard, the applicant had not substantiated that he had indeed tried to lodge such an application. Instead, the official note prepared by the Border Guard officer who had interviewed him stated that the applicant had expressed a wish to escape the judicial authorities in Chechnya and to travel to meet with friends to Germany. When referring to the interim measure indicated by the Court, the head of the National Border Guard stated that it was impossible to remove from Polish territory a person who had not legally crossed a border in the first place and that domestic law provided no basis for allowing the applicant to enter Poland. 18. The applicant appealed to the Warsaw Regional Administrative Court. The proceedings before this court are still pending. Developments following the application of an interim measure 19. On 9 June 2017 the applicant returned to the border checkpoint at Terespol, carrying with him a copy of a letter informing his representative of the Court’s decision concerning the interim measure. The applicant submitted that he had been searched by border guards and questioned about the people who had helped him and who had secured him legal representation and how this representation had been paid for. The applicant also alleged that his copy of the letter from the Court had been confiscated from him. The Government maintained that neither any such search nor any seizure of that document had taken place. They also stated that the applicant had not been questioned regarding his legal representation. They furthermore stated that during his conversation with the officers of the Border Guard the applicant had not expressed any need for international protection; rather, he had declared that he wished to go to Germany, where his family lived. 20. On the same day the Government requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicant had never requested international protection, and nor had he given any reasons for the need for such protection. They also maintained that as the applicant had not been admitted to Poland by the border guards, he had not been legally in Poland and could therefore not be removed. In the Government’s view the applicant had abused the interim measure in order to pressurise the Polish Border Guard officers into giving him permission to enter Poland. 21. On 14 June 2017 the Court (the duty judge) decided not to lift the interim measure, but rather to prolong it until further notice and to indicate to the Government that in the light of the submissions made to the Court (especially the applicant’s written application and his submissions, copies of which had been forwarded to the Government), the Court considered that the applicant had lodged a request for international protection. The Court clarified that the indication, made to the Government on 8 June 2017, that the applicant should not be removed to Belarus should be understood in such a way that when he presented himself at a Polish border checkpoint his application for asylum would be received and registered by the Border Guard and forwarded for examination by the competent authorities. Pending examination of the asylum application, the applicant should not be sent back to Belarus. 22. The applicant arrived at the border checkpoint at Terespol on at least three more occasions. On each occasion he was turned away. The official notes made by the officers of the Border Guard state that on those three occasions he had indicated that he wished to enter Poland because he had not had any employment in Chechnya and he wished to live and work in Poland and to visit his friends in Germany; he also stated that he had a sister who lived either in Germany or in France. The Government also submitted that during one of the interviews with the officers of the Border Guard the applicant had stated that he had been helped by Belarusian non ‑ governmental organisations but that he did not know any Polish lawyers and that he had never talked to the psychologist who had signed a psychological report that he was carrying. The applicant contested those allegations. He submitted to the Court that he had indeed been subjected to a psychological examination (organised by a non-governmental organisation on 5 and 7 June 2017), the results of which he had presented in his submissions to the Court and to the Border Guard officers. He also submitted that he had declared to the officers of the Border Guard that he was in contact with his representative and that he was able to contact her by telephone at any time. 23. On at least one of the occasions on which the applicant went to the Terespol border checkpoint (on 19 June 2017) his representative sent a copy of his application for international protection via email, fax and ePUAP (the Internet platform that enables individuals to contact the public administrative authorities) to the Border Guard at Terespol and to the Polish Border Guard Headquarters in Warsaw. She also informed of that fact the department of the Ministry of Foreign Affairs in charge of dealing with proceedings before international human rights bodies (where the agent of the Polish Government in charge of dealing with the Court is based). In her letter she also referred to the interim measure indicated by the Court under Rule 39 of the Rules of Court. On 22 June 2017 the Deputy Director of the Department for Aliens at the National Border Guard headquarters ( Zastępca Dyrektora Zarządu do Spraw Cudzoziemców Komendy Głównej Straży Granicznej ) replied to the applicant’s representative, indicating to her that an application for international protection might be submitted only at the Polish border by the applicant in person. 24. On 8 September 2017, when submitting their observations on the admissibility and merits of the case, the Government again requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They cited the same reasons as those cited in their previous request. On 13 November 2017 the President of the Section refused their request. 25. On an unspecified date the applicant left Belarus, stating that he was afraid of deportation to Chechnya. He is currently residing in Siberia, Russia. M.A. and Others v. Poland, application no. 42902/17 The applicants’ situation prior to the application for an interim measure The applicants’ situation prior to the application for an interim measure The applicants’ situation prior to the application for an interim measure 26. The applicants, Mr M.A. (“the first applicant”) and Mrs M.A. (“the second applicant”) are Russian nationals. They are married. The other five applicants are their minor children, who were travelling with them. 27. In April 2017 the applicants travelled to the Polish-Belarusian border crossing at Terespol on two occasions. According to them, on each occasion they expressed a wish to lodge an application for international protection. 28. According to the applicants, when talking to the border guards, they expressed fears for their safety. They told the border guards that they were from Chechnya. The first applicant submitted that in 2005 he had started to have problems with officers of the special services because his relatives had participated in the second Chechen war. Police officers had come to his home and taken him for questioning to a police station. His home had been raided by armed people wearing masks. Subsequently, he had decided to leave the Chechen Republic and had applied for international protection in Poland. Later, he had moved to Austria. In 2010 he had returned to Chechnya and had started working at the Department for Protection (participating in some counter-terrorist operations and provided security to governmental officials). He had quit that job, but before doing so, he had been asked if he was planning to join any illegal armed groups in Syria. The first applicant submitted that on one occasion he had been taken to the headquarters of the Department for Protection. He had been asked to become an informant for the Chechen security services but had refused to do so. On another occasion police officers had come to his home and forcibly taken him to a police station. He had again been asked to become an informant, but he had refused. He submitted that afterwards he had been tortured with electric shocks and by being beaten in his lumbar region (lower back), head and other parts of his body. After that he, together with the second applicant and their children, had left their home and had travelled to Belarus, with the aim of travelling onwards to Poland. They had told the border guards that they could not continue their stay in Belarus, as their visas had expired and that in practice it would be impossible for them to obtain international protection there. The border guards had then summarily turned them away, sending them back to Belarus. 29. On both occasions on which the applicants presented themselves at the border crossing at Terespol, administrative decisions were issued turning them away from the Polish border on the grounds that they did not have any documents authorising their entry into Poland and that they had not stated that they were at risk of persecution in their home country but that they were simply trying to emigrate for economic or personal reasons. The official notes prepared by the officers of the Border Guard observed that the applicants had cited (i) their desire to seek a better life in Europe for their big family and to join family members in Germany and obtain social benefits there, and (ii) the lack of employment opportunities in Chechnya. 30. The applicants did not appeal against the administrative decisions issued on those occasions. 31. At the same time, in April and May 2017, they also tried to enter Lithuania and – according to their statements to the Court – lodge an application for international protection there. The proceedings before the Lithuanian authorities were the subject of a separate application concluded by a judgment of the Court delivered in late 2018 (see M.A. and Others v. Lithuania, no. 59793/17, 11 December 2018). Interim measure indicated by the Court 32. On 16 June 2017, when the applicants presented themselves at the border crossing at Terespol, their representative lodged a request under Rule 39 of the Rules of Court, asking the Court to prevent the applicants from being removed to Belarus. He indicated that, as Russian citizens, they had no genuine possibility of applying for international protection in Belarus and were at constant risk of expulsion to Chechnya, where the first applicant would face the threat of torture or other forms of inhuman and degrading treatment. 33. At 10.48 a.m. on 16 June 2017 the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus until 30 June 2017. The Court clarified that the indication that the applicants should not be removed to Belarus should be understood in such a way that when they presented themselves at a Polish border checkpoint their application for asylum should be received and registered by the Border Guard and forwarded for examination to the competent authorities. Pending examination of the asylum application, the applicants should not be sent back to Belarus. The Government were informed of the interim measure before the planned time of expulsion. Nevertheless, the applicants were returned to Belarus at 11.25 a.m. The official note prepared by border guards on this occasion stated that, when at the border, the applicants had expressed the wish to enter Poland in order to settle and raise their children there. Developments following the application of the interim measure 34. On 20 June 2017 the applicants returned to the border checkpoint at Terespol, carrying with them an application for international protection and a copy of a letter informing their representative of the Court’s decision concerning the interim measure. Again, they were turned away and sent back to Belarus. The Government submitted that in the course of their conversation with the officers of the Border Guard the applicants had not expressed any need for international protection; rather, they had declared that they wished to settle in Europe owing to the lack of adequate employment opportunities in Chechnya. 35. While the applicants were trying to apply for asylum, a Polish lawyer cooperating with the applicants’ representative sent a copy of the first applicant’s application for international protection via email, fax and ePUAP to the Border Guard at Terespol and to the Polish Border Guard headquarters in Warsaw. She also informed (by letter) of that fact the department of the Ministry of Foreign Affairs in charge of dealing with proceedings before international human-rights bodies (where the agent of the Polish Government in charge of dealing with the Court is based). In her letter she also made reference to the interim measure indicated by the Court on 16 June 2017 under Rule 39 of the Rules of Court (see paragraph 33 above). On 22 June 2017 the Deputy Director of the Department for Aliens at the Polish Border Guards’ headquarters answered the letter from the lawyer in question, indicating to her that an application for international protection could be submitted only at the Polish border by the applicant in person. 36. On 23 June 2017 the Government requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicants had never requested international protection, and nor had they given any reasons for such protection. They also maintained that as the applicants had not been admitted to Poland by the country’s border guards, they had never been legally in Poland in the first place and could therefore not be removed. The Government stated that, in their opinion, the applicants had abused the interim measure in order to pressurise the Polish Border Guard officers into giving them permission to enter Poland. A similar approach was presented by the Government in their letter dated 28 June 2017. 37. On 30 June 2017 the Court (the duty judge) decided not to lift the interim measure but to extend it until 21 July 2017, and indicated to the Government that in the light of the submissions made to the Court, it considered that the applicants had lodged a request for international protection. At the same time the Court expressed concern as regards the Government’s refusal to register the applicants’ asylum applications. On 19 July 2017 the Court (the duty judge) extended the interim measure until 3 August 2017. On 3 August 2017 the duty judge extended the interim measure until further notice. 38. In the period between 3 August and 11 December 2017 the applicants arrived at the border checkpoint at Terespol on at least three more occasions. They were turned away. The Government submitted that on one of those occasions the applicants had presented a document entitled “Request for international protection” prepared by their representative in Polish, but stated that they had not understood its contents as they did not speak Polish. The Government also alleged that while being interviewed by the border guards the applicants had made statements that contradicted the account of their history given in the document. The applicants also submitted to the Court a Russian-language version of the first applicant’s application for international protection (dated May 2017 and addressed to the Lithuanian authorities). The text of this document corresponds to the statements submitted in Polish. 39. On 20 September 2017, when submitting observations on the admissibility and merits of the case, the Government again requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. They cited the same reasons as those cited in their previous application. On 6 December 2017 the President of the Section refused their request. A request for a new interim measure concerning the second applicant 40. On 13 December 2017 the applicants’ representative informed the Court that the previous day (12 December 2017) the applicants had again tried to lodge an application for international protection at the border checkpoint at Terespol. Again, decisions denying them entry had been issued. However, when on their way to catch the train that was to take them back to the city of Brest, in Belarus, the second applicant, who was at the time seven or eight months pregnant, had slipped and fallen. The applicants’ representative submitted that she had been taken to the hospital in Biała Podlaska, Poland and remained under the supervision of border guards. He also stated that she had been carrying a written application for international protection and had attempted to submit it to the officers of the Border Guard. 41. Referring to the above information, the applicants’ representative lodged a fresh request under Rule 39 of the Rules of Court, asking the Court to indicate to the Government: 1) not to return the second applicant to Belarus, 2) not to obstruct the lodging of an asylum application by the second applicant and 3) to make sure that the second applicant and her foetus were properly examined by a qualified doctor and that they had access to the best available medical services. 42. On 14 December 2017 the Court (the duty judge) decided to refuse the request in respect of point 3. With reference to points 1 and 2 of the request the Court reminded the Government that the interim measure indicated on 16 June 2017 and prolonged until further notice on 3 August 2017 was still in force. 43. On the same day the second applicant was released from hospital and returned to Belarus. She lodged an appeal against the decision of 12 December 2017 (see paragraph 40 above) denying her entry into Poland. According to the information submitted to the Court, the proceedings concerning her appeal are still pending before the head of the National Border Guard. The disappearance of the first applicant and the procedure concerning the second applicant and her children 44. During the period between October and December 2017 the applicants’ relatives residing in Chechnya received a number of summonses for the first applicant to appear before the police. In December 2017 those summonses were delivered to Brest, Belarus, where the applicants were residing. The first applicant was summoned to the police station in Brest and informed that he and his family had to leave Belarus. Otherwise, they would be deported and banned from entering the country again. 45. The applicants left Belarus and travelled to Smolensk, Russia, where the first applicant was immediately detained by the police and – according to the information his wife received from their relatives in Chechnya –transferred to the town of Grozny in the Chechen Republic. 46. The second applicant decided to return with her children to Belarus and to try again to lodge an application for international protection. After one unsuccessful attempt, on 7 January 2018 the border guards at Terespol received her application and forwarded it for review by the head of the Aliens Office ( Szef Urzędu do Spraw Cudzoziemców ). The second applicant and her children were placed in a refugee reception centre. The further whereabouts of the first applicant and his application for international protection 47. On 20 May 2018 the applicants’ representative informed the Court that in February 2018 the first applicant had been released from detention in the Chechen Republic. According to the representative, the applicant had no knowledge as to where he had been detained. He alleged that he had been beaten by the personnel of the detention facility and provided photos of significant bruises on his body. 48. In March 2018 the first applicant left Chechnya again and travelled to Belarus. On 20 March 2018 he travelled to Terespol and lodged an application for international protection. He was admitted to Poland and joined the second applicant and their children in a refugee reception centre. The applicants’ departure from Poland 49. On 18 May 2018 the applicants voluntarily left the refugee reception centre and travelled to Germany. Owing to their departure the proceedings concerning their applications for international protection were discontinued (on 30 May 2018 with respect to the second applicant and her children and on 4 June 2018 with respect to the first applicant). 50. On 7 June 2018 the German authorities lodged requests for the applicants to be transferred back to Poland under Regulation EU No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (“the Dublin III Regulation”). On 14 June 2018 the head of the Aliens Office agreed to examine the applicants’ applications for international protection. According to the information submitted to the Court, the applicants have not yet been transferred to Poland. 51. On 29 August 2018, the President of the Section, following an application lodged by the Government, decided to lift the interim measure indicated to the Government in the applicants’ case. M.K. and Others v. Poland, application no. 43643/17 The applicants’ situation prior to the application for an interim measure The applicants’ situation prior to the application for an interim measure The applicants’ situation prior to the application for an interim measure 52. The applicants Mr M.K. (“the first applicant”) and Mrs Z.T. (“the second applicant”) are Russian nationals. They are married. The remaining applicants are their three minor children. 53. In the period from September 2016 to July 2017 the applicants travelled to the border crossing at Terespol on twelve occasions. According to the applicants, on each occasion they expressed a wish to lodge an application for international protection; on at least one occasion they were carrying that application in written form (a copy of the relevant document was submitted to the Court). 54. According to the applicants, on one occasion (on 17 March 2017) their representative was also at the border checkpoint at Terespol, but was not allowed to meet them or be present during their questioning by the border guards. Their representative’s presence at the border was related to the events that were described above with respect to case no. 40503/17 (see paragraph 11 above). 55. According to the applicants, when talking to the border guards, they expressed fears for their safety. The first applicant told the border guards that in the Chechen Republic he had been kidnapped, detained and tortured by people he did not know because of his alleged participation in the disappearance of an officer (or collaborator) of the local office of the Department for Combatting Organised Crime who had been a relative of people close to Ramzan Kadyrov, the head of the Chechen Republic. Later, the applicants and their children had gone to Poland and then to Austria. From Austria, where they had unsuccessfully applied for international protection, they had been deported to Russia. The first applicant had gone into hiding and the second applicant had gone back to her family village in Chechnya with their children. She stated that upon her return she had been harassed, threatened and questioned about her husband. On one occasion she had been kidnapped and detained for around twenty-four hours, during which time she had been interrogated and threatened with sexual violence. She had been asked about the whereabouts of her husband. The applicants presented to the border guards documents confirming that, as torture victims, they had developed post-traumatic stress disorder. They also stated that they could not continue their stay in Belarus, as their visas had expired and that in practice it was impossible for them to obtain international protection there. The border guards then summarily turned them away, sending them back to Belarus. 56. On each occasion that the applicants presented themselves at the border crossing at Terespol, administrative decisions were issued turning them away from the Polish border on the grounds that they did not have any documents authorising their entry into Poland and that they had not stated that they were at risk of persecution in their home country but were in fact trying to emigrate for economic or personal reasons. The official notes prepared by the officers of the Border Guard reported that the applicants had indicated, inter alia, their lack of money, together with their wish to: live in Poland, receive financial support, seek a better life in Europe, travel to Austria to join a family member residing there, settle and work in Germany, and educate their children in Europe. 57. The applicants appealed at least once against the decisions issued on 17 March 2017 refusing entry. On 12 June 2017 the head of the National Border Guard upheld those decisions. The applicants appealed to the Warsaw Regional Administrative Court. The proceedings before that court are pending. Interim measure indicated by the Court 58. On 20 June 2017, when the applicants presented themselves at the border crossing at Terespol, their representative lodged a request under Rule 39 of the Rules of Court, asking the Court to prevent the applicants from being removed to Belarus. She indicated that, as Russian citizens, the applicants had no genuine possibility of applying for international protection in Belarus and were at constant risk of expulsion to Chechnya, where they would face the threat of torture and other inhuman and degrading treatment. 59. At 10.14 a.m. on 20 June 2017 the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus until 4 July 2017. The Government were informed of the interim measure before the planned time of expulsion. The applicants were nevertheless returned to Belarus at 11.25 a.m. The official note prepared by the border guards on this occasion stated that, when at the border, the applicants had expressed the wish to enter Poland because they had not been able to find employment in Chechnya and because they wished to raise their children in Europe. Developments following the application of an interim measure 60. On 27 June 2017 the Government requested the Court to lift the interim measure indicated under Rule 39 of the Rules of Court. They argued that the applicants had never requested international protection, nor given any reasons to justify such protection. The Government stated that, in their opinion, the applicants had abused the interim measure in order to pressurise the Polish Border Guard officers into giving them permission to enter Poland. 61. On 4 July 2017 the Court (the duty judge) decided not to lift the interim measure but to extend it until 21 July 2017, and indicated to the Government that – in the light of the submissions made to the Court (especially the documents attached to the request for an interim measure and the applicants’ submissions to the Court, copies of which had been sent to the Government) – it appeared that the applicants had tried to submit a request for international protection. On 21 July 2017 the duty judge extended the interim measure until further notice. 62. In the period between 22 June and 6 September 2017 the applicants returned to the border checkpoint at Terespol at least seven further times. On one occasion they also tried to lodge an application for international protection at another border checkpoint (at Czeremcha-Połowce). Each time they were turned away. On two of those occasions they appealed against the decisions refusing entry. According to the information provided to the Court, the proceedings in respect of those cases are still pending before the head of the National Border Guard. 63. The applicants submitted that on all those occasions they were carrying (i) a copy of a letter informing their representative of the Court’s decision concerning the interim measure and (ii) written applications for international protection. They had also clearly expressed a wish to lodge those applications. The Government alleged that the applicants had never expressed such a wish. The official notes prepared by the officers of the Border Guard stated that during their questioning the applicants had expressed a wish to live and work in Poland and to send their children to school there. 64. On at least three of the occasions on which the applicants arrived at the Terespol and Czeremcha-Połowce border checkpoints, their representative sent a copy of their application for international protection via email and fax to the relevant units of the Border Guard. In her letter she also made a reference to the interim measure indicated by the Court under Rule 39 of the Rules of Court. 65. On 11 September 2017, when submitting observations on the admissibility and merits of the case, the Government again requested that the Court lift the interim measure indicated under Rule 39 of the Rules of Court. On 13 November 2017 the President of the Section refused their request. 66. On an unspecified date the applicants left Belarus in order to avoid deportation. They indicated that they were travelling within an undisclosed region. They submitted that they remained in hiding for fear of being tracked by the Chechen authorities. RELEVANT DOMESTIC LAWConstitutional provisions Constitutional provisions Constitutional provisions 67. The 1997 Constitution contains the following provisions relating to the rights of foreigners: Article 37 “1. Anyone under the jurisdiction of the Polish State shall enjoy the freedoms and rights ensured by the Constitution. 2. Exemptions from this principle with respect to foreigners shall be specified by statute.” Article 56 “1. Foreigners shall have the right of asylum in the Republic of Poland, in accordance with principles specified by statute. 2. Foreigners who, in the Republic of Poland, seek protection from persecution, may be granted the status of a refugee, in accordance with international agreements to which the Republic of Poland is a party.” The Act of 13 June 2003 on granting protection to aliens within the territory of the Republic of Poland 68. The procedure for granting refugee status and “tolerated stays” ( pobyt tolerowany ) to foreigners and their expulsion is regulated by the Act of 13 June 2003 on granting protection to aliens within the territory of the Republic of Poland ( Ustawa o udzielaniu cudzoziemcom ochrony na terytorium Rzeczypospolitej Polskiej – “the 2003 Act”). The 2003 Act was amended on multiple occasions, in particular in order to transpose into Polish law Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third ‑ country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted and Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (see paragraphs 85-91 below). 69. The grounds and conditions for granting refugee status or supplementary international protection are set out in sections 13-22 of the 2003 Act. The procedure for granting protection is set out in sections 23-54f of that Act. 70. Under sections 24 and 29 of the 2003 Act the Border Guard is obliged to provide a foreigner who expresses a wish to apply for international protection in Poland with the possibility to lodge such an application and to facilitate it, inter alia, by ensuring the assistance of a translator and by giving – at the foreigner’s request or with their consent –access to representatives of international or non-governmental organisations assisting refugees. A person who has lodged an application for international protection is obliged to report to the reception centre indicated by the border guards (section 30(1) (5i) of the 2003 Act). That application for international protection will then be forwarded for examination to the head of the Aliens Office, who should decide on it within six months (section 34(1) of the 2003 Act). 71. The foreigner in question can lodge an appeal against a decision issued by the head of the Aliens Office with the Refugee Board ( Rada do Spraw Uchodźców ). A decision issued by the Refugee Board can be appealed against by lodging an appeal with the Warsaw Regional Administrative Court and – as a last resort – a cassation appeal with the Supreme Administrative Court ( Naczelny Sąd Administracyjny ). 72. If an application for international protection and an appeal against a decision of the head of the Aliens Office have been lodged, the enforcement of the return procedure is not initiated and any procedure that has already been initiated is suspended. An appeal lodged with an administrative court does not have automatic suspensive effect. The Aliens Act of 12 December 2013 73. In the event that a foreigner who presents himself or herself at a border checkpoint does not express a wish to lodge an application for international protection and does not have a valid document allowing him or her to enter Poland, the border guards must instigate a refusal-of-entry procedure, which is regulated by sections 33 and 34 of the Aliens Act of 12 December 2013 ( Ustawa o cudzoziemcach – “the 2013 Act”). 74. Under those provisions a decision refusing entry is issued by the head of the relevant unit of the Border Guard ( Komendant placówki Straży Granicznej ) and is executed immediately. A person who has been denied entry into Poland can appeal against that decision to the head of the National Border Guard and, subsequently, lodge an appeal with the Warsaw Regional Administrative Court and a cassation appeal with the Supreme Administrative Court. None of those remedies has suspensive effect. 75. Under section 33, subsection 1, of the 2013 Act, the proceedings prior to the issuance of a refusal-of-entry decision are limited to hearing the foreigner in question and the persons travelling with him or her, a review of the documents in his or her possession, verifying the relevant registries and obtaining necessary information from other State institutions and relevant entities. Subsection 2 of this section provides that in cases in which there is no doubt that the foreigner does not comply with the conditions of crossing the border, the proceedings may be limited only to a review of the documents in his or her possession. 76. On 17 May 2018, in one of the cases concerning appeals against the refusal-of-entry decisions issued by the head of the Border Guard Unit at Terespol (namely case no. II OSK 2766/17), the Supreme Administrative Court held that the situation provided in subsection 2 of section 33 of the 2013 Act was to be treated as extraordinary and that it did not arise in situations in which the foreigner in question raised any claims concerning a need for international protection. The administrative court indicated that the fact that the foreigner in the case before it had raised in her appeal the fact that she was an asylum-seeker proved that her case raised some doubts and that the administrative body should have investigated it further. The Supreme Administrative Court also indicated that if the administrative body had decided to question the foreigner, it could not have limited itself to drafting a brief official note, but would have been obliged to prepare a record of the questioning. 77. Furthermore, on 26 July 2018 (case no. II OSK 1752/18) the Supreme Administrative Court stressed that the fact that the foreigner had attempted to enter Poland numerous times and that he or she had demanded to be heard in the presence of his or her lawyer should have resulted in a more detailed examination of his or her case by the Border Guard. It also stressed that the interpretation of the 2013 Act had to take into consideration the principle of non-refoulement, which constituted a starting point for the interpretation of the rights and obligations of foreigners presenting themselves at the border and of the authorities responsible for border control. EUROPEAN UNION LAWThe Treaty on the Functioning of the European Union The Treaty on the Functioning of the European Union The Treaty on the Functioning of the European Union 78. Article 78 § 1 of the Treaty on the Functioning of the European Union, as amended by the Treaty of Lisbon, which came into force on 1 December 2009, provides: “The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.” The Charter of Fundamental Rights of the European Union 79. The Charter of Fundamental Rights, which has formed part of the primary law of the European Union since the entry into force of the Treaty of Lisbon, contains an express provision guaranteeing the right to asylum. Article 18 of the Charter provides: “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).” 80. Article 19 of the Charter provides: Protection in the event of removal, expulsion or extradition “1. Collective expulsions are prohibited. 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” The 1985 Schengen Agreement 81. Article 17 of the Agreement provides: “In regard to the movement of persons, the Parties shall endeavour to abolish the controls at the common frontiers and transfer them to their external frontiers. To that end, they shall endeavour to harmonise in advance, where necessary, the laws and administrative provisions concerning the prohibitions and restrictions which form the basis for the controls and to take complementary measures to safeguard security and combat illegal immigration by nationals of States that are not members of the European Communities.” 82. Article 20 of the Agreement provides: “The Parties shall endeavour to harmonise their visa policies and the conditions for entry onto their territories. In so far as is necessary, they shall also prepare the harmonisation of their rules governing certain aspects of the law on aliens in regard to nationals of States that are not members of the European Communities.” Regulation (EU) 2016/399 of the European Parliament and of the Council of 9 March 2016 on a Union Code on the rules governing the movement of persons across borders (Schengen Borders Code) 83. Article 3 of Regulation (EU) 2016/399 provides: “This Regulation shall apply to any person crossing the internal or external borders of Member States, without prejudice to: ... (b) the rights of refugees and persons requesting international protection, in particular as regards non-refoulement .” 84. Article 4 of the Regulation stipulates: “When applying this Regulation, Member States shall act in full compliance with relevant Union law, including the Charter of Fundamental Rights of the European Union (‘the Charter’), relevant international law, including the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 (‘the Geneva Convention’), obligations related to access to international protection, in particular the principle of non-refoulement, and fundamental rights. In accordance with the general principles of Union law, decisions under this Regulation shall be taken on an individual basis.” Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted 85. The Directive sets detailed standards for recognising third-country nationals and stateless persons as refugees. 86. Article 2 (d) defines a refugee as “... a third-country national who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country, or a stateless person, who, being outside of the country of former habitual residence for the same reasons as mentioned above, is unable or, owing to such fear, unwilling to return to it ...” 87. Article 2 (h) of the Directive clarifies that “‘application for international protection’ means a request made by a third-country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status, and who does not explicitly request another kind of protection, outside the scope of this Directive, that can be applied for separately” 88. Article 21 § 1 of the Directive stipulates: “Member States shall respect the principle of non-refoulement in accordance with their international obligations.” Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection 89. Article 3 § 1 of Directive 2013/32/EU provides: “This Directive shall apply to all applications for international protection made in the territory, including at the border, in the territorial waters or in the transit zones of the Member States, and to the withdrawal of international protection.” 90. Article 8 of the Directive stipulates: “1. Where there are indications that third-country nationals or stateless persons held in detention facilities or present at border crossing points, including transit zones, at external borders, may wish to make an application for international protection, Member States shall provide them with information on the possibility to do so. In those detention facilities and crossing points, Member States shall make arrangements for interpretation to the extent necessary to facilitate access to the asylum procedure. 2. Member States shall ensure that organisations and persons providing advice and counselling to applicants have effective access to applicants present at border crossing points, including transit zones, at external borders. Member States may provide for rules covering the presence of such organisations and persons in those crossing points and in particular that access is subject to an agreement with the competent authorities of the Member States. Limits on such access may be imposed only where, by virtue of national law, they are objectively necessary for the security, public order or administrative management of the crossing points concerned, provided that access is not thereby severely restricted or rendered impossible.” 91. Article 9 of the Directive regulates the right of a person who has lodged an application for international protection to remain in the member State in which he or she lodged the application. It provides: “1. Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. That right to remain shall not constitute an entitlement to a residence permit. 2. Member States may make an exception only where a person makes a subsequent application referred to in Article 41 or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country or to international criminal courts or tribunals. 3. A Member State may extradite an applicant to a third country pursuant to paragraph 2 only where the competent authorities are satisfied that an extradition decision will not result in direct or indirect refoulement in violation of the international and Union obligations of that Member State.” RELEVANT INTERNATIONAL LAWThe 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”) The 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”) The 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”) 92. Article 1 A and Article 33 § 1 of the Geneva Convention provide: Article 1 A “For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” Article 33 § 1 “No Contracting State shall expel or return (‘ refouler ’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 93. In its Note on International Protection of 13 September 2001 (A/AC.96/951, § 16), the Office of the United Nations High Commissioner for Refugees (UNHCR), which has the task of monitoring the manner in which the States Parties apply the Geneva Convention, indicated that the principle of non-refoulement laid down in Article 33, was: “... [A] cardinal protection principle enshrined in the Convention, to which no reservations are permitted. In many ways, the principle is the logical complement to the right to seek asylum recognized in the Universal Declaration of Human Rights. It has come to be considered a rule of customary international law binding on all States. In addition, international human-rights law has established non-refoulement as a fundamental component of the absolute prohibition of torture and cruel, inhuman or degrading treatment or punishment. The duty not to refoule is also recognized as applying to refugees irrespective of their formal recognition, thus obviously including asylum-seekers whose status has not yet been determined. It encompasses any measure attributable to a State which could have the effect of returning an asylum ‑ seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx.” 94. In its Advisory Opinion on the Extraterritorial Application of Non ‑ Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol adopted on 26 January 2007, the UNHCR stipulated: “7. The prohibition of refoulement to a danger of persecution under international refugee law is applicable to any form of forcible removal, including deportation, expulsion, extradition, informal transfer or “renditions”, and non-admission at the border in the circumstances described below. This is evident from the wording of Article 33(1) of the 1951 Convention, which refers to expulsion or return ( refoulement ) “in any manner whatsoever” ... It applies not only in respect of return to the country of origin or, in the case of a stateless person, the country of former habitual residence, but also to any other place where a person has reason to fear threats to his or her life or freedom related to one or more of the grounds set out in the 1951 Convention, or from where he or she risks being sent to such a risk. 8. ...As a general rule, in order to give effect to their obligations under the 1951 Convention and/or 1967 Protocol, States will be required to grant individuals seeking international protection access to the territory and to fair and efficient asylum procedures. 9. ... the obligation under Article 33(1) of the 1951 Convention not to send a refugee or asylum-seeker to a country where he or she may be at risk of persecution is not subject to territorial restrictions; it applies wherever the State in question exercises jurisdiction. ... 24. ... the purpose, intent and meaning of Article 33(1) of the 1951 Convention are unambiguous and establish an obligation not to return a refugee or asylum-seeker to a country where he or she would be [at] risk of persecution or other serious harm, which applies wherever a State exercises jurisdiction, including at the frontier, on the high seas or on the territory of another State.” Other UN materials 95. The General Assembly of the United Nations stated in Article 3 of its Declaration on Territorial Asylum, adopted on 14 December 1967 (A/RES/2312 (XXII)), that: “No person referred to in article 1, paragraph 1, shall be subjected to measures such as rejection at the frontier or, if he has already entered the territory in which he seeks asylum, expulsion or compulsory return to any State where he may be subjected to persecution.” 96. On 19 September 2016, the General Assembly of the United Nations adopted the New York Declarations for Refugees and Migrants, in which it stated: “24. ... We will ensure that public officials and law enforcement officers who work in border areas are trained to uphold the human rights of all persons crossing, or seeking to cross, international borders ... We reaffirm that, in line with the principle of non-refoulement, individuals must not be returned at borders. ... 33. Reaffirming that all individuals who have crossed or are seeking to cross international borders are entitled to due process in the assessment of their legal status, entry and stay, we will consider reviewing policies that criminalize cross-border movements. ... 65. We reaffirm the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto as the foundation of the international refugee protection regime. ...” Council of Europe materials 97. Section X of the Guidelines on human-rights protection in the context of accelerated asylum procedures (adopted by the Committee of Ministers of the Council of Europe on 1 July 2009 at the 1062nd meeting of the Ministers’ Deputies) reads: “1. Asylum seekers whose applications are rejected shall have the right to have the decision reviewed by a means constituting an effective remedy. 2. Where asylum seekers submit an arguable claim that the execution of a removal decision could lead to a real risk of persecution or the death penalty, torture or inhuman or degrading treatment or punishment, the remedy against the removal decision shall have suspensive effect.” MATERIAL DESCRIBING SITUATION AT THE BORDER CHECKPOINT IN TERESPOLThe Ombudsman’s visits The Ombudsman’s visits The Ombudsman’s visits 98. On 11 August 2016 representatives of the Polish Ombudsman ( Rzecznik Praw Obywatelskich ) visited the border checkpoint at Terespol and conducted an unannounced inspection. The representatives were allowed to observe interviews conducted by officers of the Border Guard with foreigners who had arrived at the border without valid visas or other documents allowing them to enter Poland. 99. The representatives of the Ombudsman observed seventy-nine interviews. They noted that the interviews had been conducted at four stands, three of which had been placed at such a short distance from each other that interviews could have been easily overheard by third parties (such as other foreigners). The interviews had been conducted in Russian and had lasted, on average, between one and four minutes. 100. The representatives of the Ombudsman noted that during sixty-two of the interviews observed by them, the individuals interviewed had not expressed any intention of applying for international protection in Poland, and nor had they provided information that could have suggested that they had come to Poland with such an intention. During five interviews the representatives of the families in question had explicitly declared to the border guards their intention of lodging an application for international protection. Only one of those families had been allowed to lodge such an application. During a further twelve interviews, the foreigners had given reasons for leaving their country that – according to the representatives of the Ombudsman – could have indicated that they had experienced persecution within the meaning of the Geneva Convention or had been in risk of their lives, personal freedom or safety. Furthermore, of this group, only one family had been given an opportunity to lodge an application for international protection. 101. The report (which was published in English) contained the following description of the observed interviews: “In each case, whenever foreigners’ answers mentioned risks persisting in the country of origin, officers asked several additional questions about, among other things, specific incidents that could prove such risks and the fact whether such incidents were reported, for example, to law enforcement agencies. In the view of inspectors, although that is a subjective opinion, officers did not attach much importance to information provided in such cases by foreigners and they were focusing more on proving that the reason for leaving the country was of [an] economic nature. After questions about possible risks, they very often moved on to ask further about a profession performed in the country and the intention to find employment in Poland. The declaration of such an intention itself, although again that is the subjective opinion of inspectors, in many cases sufficed for an officer to assume that a given foreigner came to Poland for economic reasons, despite his/her concerns of other nature.” 102. The representatives of the Ombudsman also referred to the way in which the course of the interviews had been documented by the officers of the Border Guard. They stated (in English): “The course of each interview is documented in the form of an entry in a log that an officer maintains ... Such an entry contains only information concerning foreigners’ personal details and details of other members of family who accompany him/her, the country of origin, passport numbers and, what is most important, the purpose that the foreigner gives for coming to Poland. The last piece of information is recorded in the form of laconic statements, such as going to Germany; doesn’t want to live with her husband; has no money; wants to live in Poland. In case the interview results in the refusal to enter the territory of Poland, identical information concerning the purpose of arrival is included in the memo [the official note]. The memo is attached to the files of the administrative proceedings in which the decision is issued to refuse the right of entry. This way of documenting interviews which have paramount importance for a possible recognition of a foreigner as a person seeking protection against persecution in the country of origin should be deemed highly insufficient. Firstly, based on an entry made by an officer, it is not possible to reconstruct, even roughly, the course of the interview. Secondly, a foreigner has no chance to inspect the entry, and hence cannot in any way refer to it or set the information right.” 103. The report of the inspection concluded that interviews aimed at determining the purpose of each foreigner’s arrival in Poland were conducted in conditions which did not provide at least a minimum degree of privacy. It reiterated that if during an interview a foreigner referred to circumstances indicating an intention to apply for international protection in Poland, the relevant application should be accepted from them for review and that, under domestic law, officers of the Border Guard did not have the authority to perform any preliminary verification of data provided by the foreigners in this respect. The report explicitly stated that the inspection had revealed certain cases when Border Guard officers had not allowed foreigners to lodge an application for international protection even though they had either directly declared such an intention during their respective interview or had mentioned circumstances that may have indicated that they had been persecuted in their country of origin. 104. On 15 May 2018 a second visit by the representatives of the Polish Ombudsman took place at the border checkpoint at Terespol. The employees of the Ombudsman’s office were present during eight interviews concerning eighteen foreigners out of a total of thirty-two persons who arrived at the Terespol border crossing on that day without carrying a valid visa or other documentation allowing them to enter Poland. They noted that during six of those interviews (concerning sixteen persons), the foreigners in question had expressed a wish to lodge an application for international protection and that in all the cases they had been allowed to lodge applications and had been admitted to Poland. In one case, this had happened only after the Ombudsman’s representatives had indicated to the officers of the Border Guard their doubts concerning the course of the respective interview; the interview had then been repeated. Those sixteen persons had all been foreigners who had lodged applications for international protection on that day. No application had been lodged by any of the persons interviewed at the counter at which no representative of the Ombudsman had been present. 105. The report of the Ombudsman’s office also noted that a number of applications for international protection were accepted for review on 15 May 2018 – a significantly higher than on any other day in the two-week period preceding the visit. According to official data submitted by the Border Guard, in the period between 1 and 14 May 2018, the maximum number of applications lodged on one day was two (concerning between one and six persons per day). Visit by representatives of the Children’s Ombudsman 106. On 10 January 2017 the Terespol border crossing was inspected by representatives of the Children’s Ombudsman ( Rzecznik Praw Dziecka ). 107. The representatives of the Children’s Ombudsman were allowed to observe interviews conducted with ten families who did not have documents allowing them to enter Poland. They noted that the conditions in which the interviews were conducted had improved since the inspection by the representatives of the Ombudsman. Conversations with the border guards now took place in a separate room with three desks, at which interviews were carried out simultaneously. The desks were separated from each other by screens. 108. The inspectors noted that members of six families interviewed in their presence had explicitly stated that they wanted to apply for international protection in Poland. All of them had been afforded that possibility. Their applications had been accepted for review and the families were allowed to enter Poland. The other four families had not expressed any wish to apply for international protection, either directly or indirectly. As discovered later by the inspectors, only the six families that had expressed a wish to apply for international protection in their presence and one person travelling alone were permitted to lodge such applications on that day. 109. The representatives of the Children’s Ombudsman talked also to a dozen or so other families who had been interviewed by the officers of the Border Guard on that day, but not in the presence of the inspectors. The members of six of those families told the inspectors that they had tried to lodge an application for international protection numerous times but had been unsuccessful. They described cases of torture, threats and other forms of persecution that, according to the inspectors, should have justified the acceptance of such applications from them for review. All those families claimed that they had given the same account of their circumstances to the border guards. 110. The representatives of the Children’s Ombudsman asked the head of the Terespol Border Guard Unit for copies of the official notes prepared during the interviews with those families and compared the content of those notes with the statements that the foreigners gave them just minutes after being interviewed by the border guards. In all cases they found significant discrepancies between the statements given to them by the foreigners and the content of the notes drafted by the border guards. For instance, a woman (called “Z.K.” in the report) told the representatives of the Children’s Ombudsman that her husband had been killed by police officers and that her son had been detained and tortured numerous times. The official notes – drafted when she had, on several occasions, presented herself at the border – recorded that she had indicated that she had had problems looking after her family since the death of her husband, that she wished to raise and educate her children in Poland and that she had no prospects in her own country. Another woman (who had tried to cross the border on the same day) told the representatives of the Children’s Ombudsman that her husband had been abducted and accused of being a follower of Wahhabism, whereas the official notes concerning her arrivals at the Polish-Belarusian border stated that she had told the border guards that she had had no employment or money in Chechnya, that she wished to provide her child with better living conditions and education, and that she wanted to join her sisters, who resided in Germany. 111. The report concluded its account of the above-mentioned conversations by indicating: “Although it is obvious that by no means in all cases would the reasons for applying for international protection cited by the foreigners in fact justify the granting of such protection (which could depend on a number of factors, including the possibility of obtaining legal protection in the country of origin or the possibility of relocating within this country), it is unquestionable that before the representatives of the Children’s Ombudsman those foreigners indicated a threat to their personal security. This kind of circumstances, if declared in front of the officers of the Border Guard, should result in the acceptance [for review] of applications for international protection from those foreigners.” It furthermore stated that: “In this context it should be emphasised that it seems incomprehensible and contrary to the principles of logic and life experience that the foreigners who presented themselves for border control numerous times would not have indicated such circumstances to the officers of the Border Guard (on whose decision depended the question of whether their applications for international protection would be received [for review] and whether they would be allowed to enter the territory of Poland), if they were capable of expressing them freely, a dozen or so minutes after leaving the border control, in front of the representatives of the Children’s Ombudsman present at the border crossing on [that day].” 112. Moreover, after the applications for international protection were accepted for review from the six families mentioned above, the representatives of the Children’s Ombudsman talked to members of four of those families. All of them stated that they had been at the Terespol border checkpoint numerous times and that on all of those occasions they had indicated a wish to apply for international protection. Until that day, they had been denied such a possibility. They stated that the statements given by them on those previous occasions had not differed from the ones made that day in the presence of the inspectors. 113. The representatives of the Children’s Ombudsman asked the head of the Terespol Border Guard Unit for copies of the official notes prepared on the previous occasions on which those families had presented themselves at the Polish-Belarusian border and compared them with the statements that the foreigners had given on 10 January 2017 and that had been recorded in their applications for international protection submitted on that day. They found that there were significant differences between the content of those documents and the statements made on the latter date. For instance, one of the men who had applied for international protection on 10 January 2017 had stated that he had asked for refugee status, as he could not return to his country of origin. He had submitted that he had been a taxi driver and had been accused of transporting militants. He said that two of his brothers had been killed and that he was wanted by the Chechen authorities. He had expressed fear for the security of his children and family. The official notes drafted during his previous interviews reported that before 10 January 2017 he had declared to the officers of the Border Guard that he lacked money and that he wanted to work, live and educate his children in Poland. 114. In the conclusion of its report on the inspection the Office of the Children’s Ombudsman stated that the inspection had not directly confirmed that foreigners at the Terespol border checkpoint had been denied the possibility to lodge an application for international protection (as all of the interviews conducted in the presence of the inspectors had been conducted correctly). The report did however, indicate that the results of the conversations conducted with the foreigners in the interviews in which the inspectors had not participated – given comparison that decisions denying them entry had been issued – raised the highest concern. The Children’s Ombudsman indicated, inter alia, that it was advisable to change the form in which interviews with foreigners were documented from that of official notes to that of more detailed minutes, which would have to be read to the foreigner and signed by him or her. Statement given by the Minister of the Interior and Administration on 31 August 2016 115. On 31 August 2016 the Polish Minister of the Interior and Administration was interviewed in a television programme in which he was asked about the situation at the Terespol border checkpoint. He told the journalist interviewing him that the policy of the Polish government was aimed at protecting Polish citizens against an influx of Muslim refugees and that the government would not be pressured by those who wanted to bring the migration crisis onto Polish territory. When asked specifically about the claims of those at the Terespol border checkpoint that they were fleeing the dangers of a totalitarian regime, the Minister indicated that there was no ongoing war in Chechnya and that they were people heading to Western Europe. He stated that the Chechens at the Polish-Belarusian border at that time would not be accepted into Poland. MATERIAL DESCRIBING ASYLUM PROCEDURE IN BELARUS 116. In its annual report on the state of the world’s human rights in 2017, Amnesty International stated that Belarus lacked a functioning asylum system and repeatedly handed over individuals seeking international protection to the authorities of countries where they were at real risk of torture or other ill-treatment. 117. In its annual report on the human-rights situation in 2017, Human Rights Watch stated: “Belarus failed to provide meaningful protection to hundreds of asylum-seekers, mostly from the Russian republic of Chechnya, who arrived in Belarus with the aim of crossing the border into Poland and requesting asylum. Belarus lacks a functioning asylum system. During 2017 it returned at least two asylum-seekers from Chechnya back to Russia, which authorities view as a safe country of origin, putting them at grave risk of ill-treatment.” | This case concerned the repeated refusal of Polish border guards on the border with Belarus to admit the applicants, who had come from Chechnya and claimed that they had unsuccessfully attempted to submit applications for international protection at the border numerous times. The applicants complained in particular of being denied access to asylum procedures and of being exposed to a risk of treatment in Chechnya contrary to the Convention. They also complained that they had been subjected to collective expulsion and that they had had no effective remedy under Polish law by which to lodge their complaints. |
543 | Violent acts by private individuals | I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant was the mother and the second applicant was the brother of Mr Angel Dimitrov Iliev (“the victim”), who was of Roma origin and twenty-eight years old at the time of his death. A. The death of Mr Iliev 7. On the evening of 18 April 1996, in the town of Shumen, the victim was attacked by seven teenagers (“the assailants”) and beaten severely. He was also stabbed several times by one of the assailants. 8. The victim was taken to a hospital after the attack but died on the following morning, 19 April 1996. 9. As later submitted by the assailants, the attack was motivated by the victim's Roma ethnicity (see paragraphs 1 2 -1 3 and 1 8 -2 1 below). B. The criminal proceedings into the death of Mr Iliev 10. All of the assailants were detained and questioned by the police on the day of the attack, 18 April 1996. With one exception, all were juveniles. 11. The assailants were all released after questioning, with the exception of G.M.G. (“the first assailant”), who was seventeen years old at the time. A knife had been found on him and two of the other assailants, N.R. and S.H., had implicated him as the person who had wielded the weapon. The first assailant was remanded in custody on suspicion of murder. 12. On 19 April 1996 the assailants were again questioned by the police. N.R. and S.H. confirmed their statements to the effect that the first assailant had wielded the weapon. Thereupon, a preliminary investigation was opened against him and he was charged with murder stemming from an act of hooliganism (see paragraph 56 below). He was then questioned, but declined to give a statement other than to confirm that the knife found on him was his own. 13. D.K., who was fifteen years old at the time, gave a statement on 19 April 1996, the relevant part of which reads : “... [We have been meeting] with the boys regularly for the past several months. We agree in advance where and when we will meet the next time, because we do not go to the same school... We hate junkies and [do not] take drugs. .. we [also] do not drink alcohol, either when we see each other or when we are apart... We talk about films, music and have [stated] on many occasions that we hate Gypsies – we call them “soot” ( сажди ) and “ mangals ” ( мангали )... Blacks, Gypsies, Turks, all foreigners I hate. As for the Turks and the Gypsies [,] it is known that a high percentage of criminal offences are [committed] by Gypsies and Turks. At home I have heard my father talk about them that way... Last night... we met... as we had previously agreed. [It was a] simple gathering without any aim or idea of what we would do... We went for a walk in the city [park]... We [then] headed towards the train station... [Then] down towards the road... We passed by the bridge... and were walking [close to] the tracks. We were just passing and I [do not know] who noticed the Gypsy first... [The Gypsy ] was about ten metres away, we were on one side of the road and he was on the other. We started walking after him... The first to catch up with him was [the first assailant] and the Gypsy asked him if he had [the time]. I do not think that anyone of us knew the Gypsy. [The first assailant] told him “I have, I have” and knocked his head against the wall. [He] held the Gypsy by the jacket from behind [so] that when he hit him the first time he did not [collapse] because [the first assailant] was holding him [up]. [The first assailant] turned him around immediately and knocked him [once] again [against] the wall. I think he hit him on the head again. [S.H.] went over... and kicked the Gypsy somewhere on the body. I did not see where. I and [one of the others] went over to [them] and [we all] brought the Gypsy to the ground. [He] was not able to put up any resistance because everything happened very quickly. He was shouting, because he was hurt. I was not thinking about what the Gypsy was saying and I did not care. Personally, I wanted to beat him up and nothing more. I think that the others also just wanted to beat him up... The others... were [also] hitting the Gypsy. I saw them when they hit him. The Gypsy was on the floor and was not able to put up any resistance. I was doing what the others were doing and did not watch what they were doing... At some point I saw that there was bleeding from his head. The blood was somewhere on [his] face. He was [still] moving... the same night I had seen that [the first assailant] had a knife... The knife is mine, [but] I gave it to [the first assailant]... a long time before this [night]... I did not know that [that] night [the first assailant had] the knife [ with him ]... ... While we were walking [behind] the Gypsy [and] before we caught up with him[,] I saw that [N.B.]... said to the [the first assailant] “Give me the knife” and I saw that [he] took it out of his pants and gave it to him. I did not see where [ N.B. ] put the knife and whether it remained in his hand. [But] when we were hitting the Gypsy on the floor I saw how [ N.B. ] stabbed [him] with the knife in [the buttocks] area... I saw that [ N.B. ] plunged the knife several times into the body of the Gypsy [,] always in that part of his body. The Gypsy was screaming. [ N.B. ] did not say anything, he was not swearing. [ N.B. ] made three or four jabs... [T]he Gypsy was still moving. Blood began to flow from the place where [ N.B. ] had [stabbed him]... The rest of us were continuing to hit... the Gypsy while [ N.B. ] was stabbing him...The Gypsy had not provoked us in any way[,] neither with words nor with actions... We beat him because he was a Gypsy ... He had had enough. I saw that he was not bleeding profusely... We did not want to kill him, just to beat him up...I am not sure that only [ N.B. ] used the knife, but I cannot indicate that any one of the others used it. I did not see another [ person using it]... ... I still do not know what happened to this person, whether he is [still] alive... We have beaten up Gypsies [before] and we [always] hear what happens [to them]...”. 14. An autopsy of the victim was performed on 20 April 1996. It established that he had been stabbed three times in the left outer thigh and twice in the abdominal cavity which resulted in the severance of the ischiadic nerve, the profunda femoris artery (deep artery of the thigh), the main intestine and the urethra. He also had bruises and contusions to his face and the back of his head. The autopsy concluded that the cause of death was massive internal loss of blood, resulting from the severance of the profunda femoris artery. 15. On the same day, 20 April 1996, the investigator commissioned a medical expert's report to establish the victim's wounds, whether any of them were in the stomach area, how they had been inflicted, what force had been used and whether his death had been inevitable or whether it could have been avoided by timely specialised medical assistance. It is unclear what was established by the medical expert. 16. On 15 and 16 May 1996 four of the assailants, D.K., S.H., N.R. and N.B., were charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below). They were questioned in the presence of their lawyers and then released into their parents'charge. 17. D.K. confirmed his previous statement but denied knowing anything about the stabbing of the victim. He was unable to determine whether he was guilty or not. 18. S.H., who was sixteen years old at the time, pled guilty to the offence with which he had been charged. He expressed his hatred for Gypsies and stated that the group had purposefully looked for someone from that minority group to attack. S.H. retracted his previous statement of 19 April 1996 in respect of who had perpetrated the stabbings (see paragraph 11 above) and implicated N.B. as having been responsible. As to why he was changing his testimony, he claimed that the members of the group had had an understanding always to implicate the first assailant if they were ever caught, which the latter had apparently suggested and condoned. 19. N.R., who was seventeen years old at the time, also pled guilty to the offence with which he had been charged. He also confirmed that they had purposefully looked for a Gypsy to attack, retracted his statement of 19 April 1996 (see paragraph 11 above) and implicated N.B. as having stabbed the victim. 20. N.B. (“the second assailant”), who was fifteen years old at the time, pled guilty to the offence with which he had been charged but denied any knowledge of the stabbings or of having perpetrated them. 21. On 22 May 1996 G.R.G., who was eighteen years old at the time, was charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below ) and questioned in the presence of his lawyer. He was then released but a restriction was placed on him not to leave his place of residence without authorisation from the Prosecutor's Office. In his statement, he pled guilty to the offence with which he had been charged and confirmed the attack was motivated by the victim's Roma ethnicity but was unable to indicate who had perpetrated the stabbings. 22. The seventh member of the group, S.K., was never charged as he did not participate in the attack on the victim. 23. Also on 22 May 1996 two witnesses were questioned, one of whom was I.D., a member of the group who had not been present during the attack on 18 April 1996. He gave a statement to the investigation that he had met the first assailant later on the same evening and that the latter had confided in him that the second assailant had stabbed a Gypsy whom they had attacked but that he had taken the knife from him after the attack. I.D. also stated that in a subsequent conversation with the second assailant on 6 May 1996, the latter had inquired what kind of sentence he might receive if he were to confess but that he was scared to do so for fear of being sent to a juvenile correctional facility. The other witness, N.D., gave a statement attesting to the aforementioned conversation. 24. On 23 May 1996 the first assailant was questioned again. He confirmed that the group had purposefully looked for a Gypsy to assault on the evening of 18 April 1996. The first assailant also stated that he had given N.B. his knife before the attack and that the latter had stabbed the victim, but that there had been no prior warning or agreement about the incident. Lastly, the first assailant confirmed that he had taken the knife back from N.B. after the attack and that there had been a general understanding in the group that he would take responsibility if they were ever to get caught, but that it had not been agreed for this instance in particular. 25. On 14 June 1996 the Shumen District Prosecutor's Office found that there was a lack of evidence that the first assailant had stabbed the victim, dismissed the charges against him and released him. 26. The charges against the first assailant were amended on 17 June 1996 and, like the other members of the group, he was charged with hooliganism of exceptional cynicism and impudence (see paragraph 58 below ). A restrictive measure was imposed on him whereby he was placed under the supervision of an inspector from the Juvenile Delinquency Unit ( инспектор към Детска педагогическа стая ). He was also questioned in the presence of his lawyer, pled not guilty to the offence with which he had been charged and reiterated his statement of 23 May 1996. 27. On 21 June 1996 N.R. and S.H. were charged with having made false statements to the investigation authorities on 19 April 1999, accusing the first assailant of the offence of murder, which resulted in charges being brought against him (see paragraphs 11 and 13 above and 59 below). They were questioned and then released into the charge of their parents. 28. On 26 June 1996 the second assailant was charged with negligent homicide resulting from an inflicted median bodily injury (see paragraph 57 below). He pled not guilty to the offence and insisted that he had not stabbed the victim. 29. Due to their conflicting testimonies, a confrontation was organised on 3 July 1996 between the second assailant, N.R. and S.H. They each confirmed their previous statements. 30. On 15 April 1997 the results of the preliminary investigation were presented to the first and second assailants. 31. On 18 April 1997 the investigator in charge concluded in a report ( обвинително заключение ) that there was sufficient evidence against the assailants to obtain a conviction and that the case should proceed to trial. It is unclear when and whether the case file was transferred to the competent Prosecutor's Office. 32. A little more than a year later on 26 June 1998, a confrontation was organised between the second assailant and I.D. during which they confirmed their previous statements to the investigation. 33. On several occasions during the course of the preliminary investigation the applicants approached the investigator in charge with requests for information on the progress of the case. They were either refused information or were provided with scant details. Sometime in the spring of 1999 the lawyer of the applicants was granted access to the case file. 34. A confrontation was organised on 30 March 1999 between the second assailant and N.D., during which they confirmed their previous statements to the investigation. 35. On 6 April 1999 the second assailant petitioned the investigator to commission a medical report into his state of health, as he claimed to be suffering from a serious incurable disease. Such a report was ordered on 6 October 1999. The resulting medical report of 21 October 1999 established that the second assailant suffered from chronic pyelonephritis and back pain, which were typical for teenagers and would be naturally outgrown. 36. On 18 October 1999 the applicants filed a request with the investigator to be recognised as civil claimants in the criminal proceedings. 37. On 3 November 1999 the investigator commissioned a psychiatric evaluation of the second assailant. The resulting report, of an unknown date, found that he did not suffer from any serious psychiatric condition and that on the day of the attack his illnesses did not affect his understanding of the nature and consequences of his actions nor his ability to control them. 38. On 18 December 1999 the applicants filed a complaint with the Shumen Regional Prosecutor's Office, alleging that the investigation was being protracted. No apparent action was taken in response to their complaint. 39. A confrontation was organised on 12 January 2000 between the second assailant and N.R., at which they gave conflicting testimony in respect of a conversation they had had shortly after the attack on the subject of whether to blame the first assailant for the stabbing. 40. On 17 April 2000 the investigator recognised the first applicant as a civil claimant in the criminal proceedings. 41. Between 17 April and 1 June 2000 the results of the preliminary investigation were presented to the second assailant, the other five accused and the first applicant. 42. On 2 June 2000 the investigator in charge concluded in a new report that the case should proceed to trial, but proposed that the charges for falsely incriminating the first assailant be dismissed. The case file was transferred to the Shumen Regional Prosecutor's Office on an unspecified date. 43. On 3 July 2000 the Shumen Regional Prosecutor's Office remitted the case with instructions that S.K. be questioned concerning the reasons why the group had initially blamed the first assailant for the stabbing, that the accused undergo psychiatric evaluations as to whether or not on the day of the attack they understood the nature and consequences of their actions and could control them, and that the charges against the second assailant be amended. 44. On 11 October 2000 a confrontation was organised between the first and second assailants, at which they gave conflicting testimony in respect of who had had the knife at the time of the attack. 45. On 12 October 2000 S.K. was questioned and gave a statement that there had not been a prior understanding in the group that the first assailant would always take the blame, but that following the attack the group had met and the first assailant had informed them that he would take responsibility for what had happened. 46. On 23 March 2001 D.K. was questioned but declined to answer any questions. 47. The first assailant was questioned on 30 March 2001 and gave a statement attesting to the physical state of the second assailant at the time of the attack, the history of their relationship and his lack of knowledge as to any collusion by the other members of the group to help him by changing their respective testimonies. 48. The charges against the second assailant were amended on 2 April 2001 and a restriction was placed on him not to leave his place of residence without authorisation from the Prosecutor's Office. He was questioned and reiterated his previous statement that he had not been in possession of a knife during the attack and that he had not stabbed the victim. The results of the preliminary investigation were also presented to the second assailant on the same day. 49. Between 3 April and 4 June 2001 the results of the preliminary investigation were presented to the other five accused and the first applicant. 50. On 12 June 200 1 the investigator in charge concluded in a new report that the case should proceed to trial. The case file was transferred to the Shumen Regional Prosecutor's Office on an unspecified date. 51. There was no development in the criminal proceedings during the following four years. 52. On 18 March 2005 the Shumen Regional Prosecutor's Office dismissed the charges of hooliganism of exceptional cynicism and impudence and of falsely incriminating someone before the authorities against all of the assailants who had been juveniles at the time of the attack – namely the first and second assailants, N.R., S.H. and D.K. – because the statute of limitation had expired in respect of them. Relying on the evidence collected and the tests conducted in the course of the preliminary investigation, the Shumen Regional Prosecutor's Office argued that the first assailant had stabbed the victim, given that he had had the knife and the victim's blood had been found on his clothes. It therefore dismissed the charges against the second assailant for negligent homicide resulting from an inflicted median bodily injury and remitted the case for further investigation, with instructions that the first assailant be again charged with murder stemming from an act of hooliganism (see paragraphs 12 above and 56 below). The only other remaining accused was G.R.G., who had been eighteen years old at the time of the attack and who continued to be charged with hooliganism of exceptional cynicism and impudence as the statute of limitation had not expired in respect of him (see paragraphs 21 above and 58 below ). 53. On 22 April 2005 the applicants and the victim's three sisters filed a request with the authorities to be recognised as civil claimants in the criminal proceedings and claimed 75,000 Bulgarian levs (approximately 38,461 euros) in damages. 54. On 16 May 2005 the applicants'lawyer met with a prosecutor from the Shumen Regional Prosecutor's Office who informed him that the case file had been requested and was being held by the Ministry of Justice. 55. The Court has been informed of no further developments in the criminal proceedings. | The applicants, mother and son, complained about the racially motivated killing of their respective son and brother by seven teenagers, and about the subsequent failure by the Bulgarian authorities to investigate and prosecute those responsible. |
609 | Wearing of religious symbols or clothing in the public space | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1977 and lives in Dison. 7. The applicant stated that she was a Muslim and had decided, on her own initiative, to wear the niqab – a veil covering the face except for the eyes – in accordance with her religious beliefs. She said that she had taken the decision to wear the full -face veil when she was sixteen years old. She explained that her choice had been accepted by her family and friends and by her husband. She also stated that she had always agreed to remove her veil for identification purposes as required by the authorities, such as when issuing her identity card. 8. On 18 February 2008 the Vesdre district administrative authorities proposed an amendment to the district regulations regarding the wearing of the burqa in public thoroughfares and in public places .... 9. The president of the police district invited the Verviers public prosecutor to express an opinion on that proposal. On 18 March 2008 the public prosecutor replied that he did not have any observations to make. 10. The municipal councils of the three municipalities belonging to the police district – the municipal council of Pepinster on 23 June 2008, Dison on 26 June 2008 and Verviers on 30 June 2008 – enacted the following provisions of the consolidated by-laws of the Vesdre police district, which differed, moreover, from the original proposal. “ Article 113. Save where authorised by the mayor ( Bourgmestre ) of the municipality, wearing a mask or using any strategem whatsoever for the purposes of concealing personal identity shall be forbidden at all times, at any public meeting and in all public places and in public thoroughfares. ... Article 113 bis. The wearing of clothing concealing the face shall be forbidden at all times and in all public places. However, a helmet, balaclava or other headgear may be worn where authorised by the legislation on the safety of workers or other legislation. ... 11. On 29 August 2008 the applicant lodged an application with the Conseil d ’ État for annulment of Article 113 bis. She argued that the provision in question expressly targeted the Islamic veil, which she wore, and that the resulting ban constituted an interference with her rights guaranteed by Articles 8, 9 and 10 of the Convention and discrimination in breach of Article 14 of the Convention. She contended that the interference did not pursue a legitimate aim as the principle of secularism was not a constitutional principle and there could therefore be no blanket ban on wearing the veil. In any event, even supposing that the aim could be regarded as legitimate, the applicant maintained that the means were disproportionate in the absence of public disorder or threat of public disorder and thus of a pressing social need. In their memorial in reply of 18 April 2011, the three municipalities submitted that the impugned provision sought to guarantee public safety and not to regulate or restrict the exercise of any form of worship. 12. The auditeur at the Conseil d ’ État delivered a detailed 26-page report in which he concluded that in his opinion the applicant ’ s above-mentioned submission was well founded because public safety could not serve as a basis for a ban on wearing the full -face veil in all places generally open to the public, as no specific public disorder was associated with it as such. 13. In judgment no. 213.849 of 15 June 2011, the Conseil d ’ État, refusing to follow the opinion of the auditeur, dismissed the application for annulment of the provision .... 14. That judgment was served on the applicant on 23 June 2011. | This case concerned a by-law adopted in June 2008 by three Belgian municipalities (Pepinster, Dison and Verviers) concerning a ban on the wearing in public places of clothing that conceals the face, and the subsequent proceedings before the Conseil d’État. |
1,053 | Pensions | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1938 and lives in Vienna. He has spent about twenty-eight years of his life in prison. During his prison terms he worked for lengthy periods in the prison kitchen or the prison bakery. As a working prisoner the applicant was not affiliated to the old-age pension system under the General Social Security Act. However, from 1 January 1994 he was affiliated to the unemployment insurance scheme in respect of periods worked in prison. 9. On 8 February 1999 the applicant filed an application for an early retirement pension with the Workers’ Pension Insurance Office ( Pensionsversicherungsanstalt der Arbeiter – “the Pension Office”). 10. By a decision of 8 March 1999, the Pension Office dismissed the application on the ground that the applicant had failed to accumulate 240 insurance months, the required minimum for an early retirement pension. A list of the applicant’s insurance periods, running from October 1953 to February 1999, was appended to the decision. According to the list, the applicant had accumulated only 117 insurance months. The list shows lengthy periods during which no contributions were made, in particular from May 1963 to May 1964, from July 1965 to September 1968, from June 1969 to January 1974, from April 1974 to March 1984, from June 1984 to May 1986 and from February 1987 to April 1994. Between May 1994 and February 1999 a number of months, during which the applicant received unemployment benefits or emergency relief payments under the Unemployment Insurance Act, were counted as substitute periods. 11. Subsequently, the applicant brought an action against the Pension Office before the Vienna Labour and Social Court ( Arbeits- und Sozialgericht ). He submitted that he had been working for twenty-eight years in prison and that the number of months worked during that time should be counted as insurance months for the purpose of assessing his pension rights. 12. On 4 April 2001 the Labour and Social Court dismissed the applicant’s claim. It confirmed that the applicant had not completed the required minimum number of insurance months. Referring to section 4(2) of the General Social Security Act, the court noted that prisoners performing obligatory work while serving their sentence were not affiliated to the compulsory social insurance scheme. According to the Supreme Court’s established case-law (judgment no. 10 ObS 66/90 of 27 February 1990 and judgment no. 10 ObS 52/99s of 16 March 1999), their work, corresponding to a legal obligation, differed from work performed by employees on the basis of an employment contract. The difference in treatment under social security law did not disclose any appearance of discrimination. 13. The applicant, now assisted by counsel, appealed. He argued in particular that the wording of section 4(2) of the General Social Security Act did not distinguish between work on the basis of a legal obligation and work based on a contract. Moreover, he argued that the distinction was not objectively justified. Since 1993, prisoners who worked had been affiliated to the unemployment insurance scheme. In the applicant’s view, there was no reason not to affiliate them to the old-age pension system. 14. On 24 October 2001 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal. It held that the Labour and Social Court had correctly applied the law. According to the Supreme Court’s established case-law, prisoners performing obligatory work were not to be treated as employees within the meaning of section 4(2) of the General Social Security Act and were therefore not affiliated to the compulsory social insurance scheme. The fact that, since the 1993 amendment to the Unemployment Insurance Act, prisoners were affiliated to the unemployment insurance scheme was not conclusive as regards the question of their affiliation to the old-age pension system. In essence, the applicant raised a question of legal or social policy. However, it was not for the courts but for the legislature to decide whether or not to change the provisions relating to the social insurance of prisoners. In that connection, the Court of Appeal noted that it did not share the applicant’s doubts regarding the possible unconstitutionality of working prisoners’ non-affiliation to the old-age pension scheme. 15. On 12 February 2002 the Supreme Court ( Oberster Gerichtshof ) dismissed an appeal on points of law by the applicant. Its judgment was served on the applicant on 6 May 2002. 16. On 29 January 2004 the applicant completed his last prison term. Subsequently, he received unemployment benefits until 29 October 2004 and, upon their expiry, emergency relief payments ( Notstandshilfe ). According to his counsel’s submissions at the hearing, the applicant currently receives some 720 euros (EUR) per month (composed of EUR 15.77 per day plus EUR 167 per month in emergency relief payments and EUR 87 as an allowance towards his rent expenses). | The applicant, who spent some twenty-eight years of his life in prison, complained in particular that the exemption of prison work from affiliation to the old-age pension system was discriminatory and deprived him of receiving pension benefits. |
914 | Tribunal established by law | 2. The applicant was born in 1980 and lives in Gdynia. Having been granted legal aid, she was represented by Ms M. Gąsiorowska, a lawyer practising in Warszawa. 3. The Polish Government (“the Government”) were represented by their Agent Mr J. Sobczak, of the Ministry of Foreign Affairs. THE BACKGROUND TO THE CASENational Council of the Judiciary National Council of the Judiciary National Council of the Judiciary 4. The National Council of the Judiciary ( Krajowa Rada Sądownictwa, hereinafter “the NCJ”) is a body which was introduced in the Polish judicial system in 1989, by the Amending Act of the Constitution of the Polish People’s Republic ( ustawa z dnia 7 kwietnia 1989 r. o zmianie Konstytucji Polskiej Rzeczypospolitej Ludowej ). 5. Its organisation was governed by the 20 December 1989 Act on the NCJ as amended and superseded on several occasions ( ustawa z dnia 20 grudnia 1989 r. o Krajowej Radzie Sądownictwa ). The second Act on the NCJ was enacted on 27 July 2001. Those two Acts provided that the judicial members of the Council were to be elected by the relevant assemblies of judges at different levels, and from different types of court, within the judiciary. 6. The 1997 Constitution of the Republic of Poland provides that the purpose of the NCJ is to safeguard the independence of courts and judges (see paragraph 59 below). Article 187 § 1 governs the composition of its twenty-five members: seventeen judges (two sitting ex officio : the First President of the Supreme Court, the President of the Supreme Administrative Court and fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts); four Members of Parliament chosen by Sejm; two members of the Senate; the Minister of Justice, and one person indicated by the President of the Republic of Poland (“the President” or “the President of Poland”). 7. The subsequent Act of 12 May 2011 on the National Council of the Judiciary ( Ustawa o Krajowej Radzie Sądownictwa – “the 2011 Act on the NCJ”), in its wording prior to the amendment which entered into force on 17 January 2018, provided that judicial members of this body were to be elected by the relevant assemblies of judges at different levels within the judiciary (see paragraph 62 below). Legislative process 8. As part of the general reorganisation of the Polish judicial system prepared by the government, Sejm enacted three new laws: the 12 July 2017 Law on amendments to the Act on the Organisation of Ordinary Courts and certain other statutes ( Ustawa o zmianie ustawy - Prawo o ustroju sądów powszechnych oraz niektórych innych ustaw, “Act on the Ordinary Courts”), the 12 July 2017 Amending Act on the NCJ and certain other statutes ( Ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw ) and the 20 July 2017 Act on the Supreme Court ( Ustawa o Sądzie Najwyższym). 9. The 12 July 2017 Law on amendments to the Act on the Ordinary Courts was signed by the President of Poland on 24 July 2017 and entered into force on 12 August 2017 (see paragraph 69 below). 10. On 31 July 2017 the President vetoed two acts adopted by Sejm : one on the Supreme Court and the Amending Act on the NCJ. On 26 September 2017 the President submitted his proposal for amendments to both acts. The bills were passed by Sejm on 8 December and by the Senate on 15 December 2017. They were signed into law by the President on 20 December 2017. New National Council of the JudiciaryElection of the new members of the NCJ Election of the new members of the NCJ Election of the new members of the NCJ 11. The Amending Act on the NCJ of 8 December 2017 ( ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw, “the 2017 Amending Act”) entered into force on 17 January 2018 (see paragraphs 7 above and 63 below). 12. The 2017 Amending Act granted to Sejm the competence to elect judicial members of the NCJ for a joint four-year term of office (section 9a(1) of the 2011 Act on the NCJ, as amended by the 2017 Amending Act). The positions of the judicial members of the NCJ who had been elected on the basis of the previous Act were discontinued with the beginning of the term of office of the new members of the NCJ (section 6). The election of new judicial members of the NCJ required the majority of 3/5 of votes cast by at least half of the members of Sejm (section 11d(5)). The candidates for the NCJ were to present a list of support from either 2,000 citizens or twenty-five judges (section 11a). 13. On 5 March 2018 a list of fifteen judges, candidates for the NCJ, was positively assessed by the Commission of Justice and Human Rights of Sejm. 14. On 6 March 2018 Sejm, in a single vote, elected fifteen judges as new members of the NCJ. 15. On 17 September 2018 the Extraordinary General Assembly of the European Network of Councils for the Judiciary (ENCJ) decided to suspend the membership of the Polish NCJ. The General Assembly found that the NCJ no longer met the requirements of being independent from the executive and the legislature in a manner which ensured the independence of the Polish judiciary (see also paragraph 175 below). Non-disclosure of endorsement lists 16. On 25 January 2018 a Member of Parliament (“MP”), K.G.-P., asked the Speaker of Sejm ( Marszalek Sejmu ) to disclose the lists, containing names of persons supporting the candidates to the NCJ, which had been lodged with Sejm. The MP relied on the Act on Access to Public Information ( ustawa o dostępie do informacji publicznej ). Her request was dismissed on 27 February 2018 by the Head of the Chancellery of Sejm ( Szef Kancelarii Sejmu ). The MP appealed. 17. On 29 August 2018 the Warsaw Regional Administrative Court ( Wojewódzki Sąd Administracyjny ) gave judgment in the case (no. II SA/Wa 484/18). The court quashed the impugned decision. It considered that domestic law had not allowed any limitation of the right of access to public information in respect of attachments to the applications lodged by candidates for the NCJ containing lists of judges who had supported their candidatures. The lists of judges supporting candidates for the NCJ had to be considered as information related to the exercise of a public office by judges. The publication of endorsement lists signed by judges had to be preceded by the removal of their personal registration numbers (PESEL) as the number had not related to the exercise of public office by judges. 18. The Head of the Chancellery of Sejm lodged a cassation appeal against the judgment. 19. On 28 June 2019 the Supreme Administrative Court ( Naczelny Sąd Administracyjny ) dismissed the cassation appeal (I OSK 4282/18). The court agreed with the conclusions of the Regional Administrative Court. It found that the attachments to the applications of candidates to the NCJ in the form of lists of citizens and lists of judges supporting the applications had fallen within the concept of public information. The limitation of this right to public information in relation to the lists of judges supporting the applications of candidates for the NCJ could not be justified by the reason that this information was related to the performance of public duties by judges. The court held that access to the list of judges supporting the applications of candidates for the NCJ should be made available after prior anonymisation of the judges’ personal registration numbers (PESEL). 20. On 29 July 2019 the Head of the Personal Data Protection Office ( Prezes Urzędu Ochrony Danych Osobowych – “ UODO ” ) decided that the endorsement lists should remain confidential and should not be published (two decisions were issued on that day, one initiated ex officio and one upon the application of Judge M.N., a member of the NCJ). 21. Appeals against the decisions of the Head of UODO were lodged by the Commissioner of Human Rights, the MP K.G.-P. and a foundation, F.C.A. On 24 January 2020 the Warsaw Regional Administrative Court quashed the decisions of 29 July 2019 (II SA/Wa 1927/19 and II SA/Wa 2154/19). The court referred to findings contained in the final judgment of the Supreme Administrative Court of 28 June 2018 which had not been enforced to date (see paragraph 19 above). 22. On 14 February 2020 the lists of persons supporting candidates to the NCJ were published on the Sejm website. The Supreme CourtNew Chambers New Chambers New Chambers 23. The Act on the Supreme Court of 8 December 2017 (“the 2017 Act on the Supreme Court”) modified the organisation of that court by, in particular, creating two new Chambers: the Disciplinary Chamber ( Izba Dyscyplinarna ) and the Chamber of Extraordinary Review and Public Affairs ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych; see paragraph 66 below). 24. The Disciplinary Chamber of the Supreme Court became competent to rule on cases concerning the employment, social security and retirement of judges of the Supreme Court (the 2017 Act on the Supreme Court, section 27(1)). The Disciplinary Chamber of the Supreme Court was composed of newly elected judges; those already sitting in the Supreme Court were excluded from it (section 131). 25. The Chamber of Extraordinary Review and Public Affairs became competent to examine extraordinary appeals ( skarga nadzwyczajna ), electoral protests and protests against the validity of the national referendum, constitutional referendum and confirmation of the validity of elections and referendums, other public law matters, including cases concerning competition, regulation of energy, telecommunications and railway transport and cases in which an appeal had been lodged against a decision of the Chairman of the National Broadcasting Council ( Przewodniczący Krajowej Rady Radiofonii i Telewizji ), as well as complaints concerning the excessive length of proceedings before ordinary and military courts and the Supreme Court (section 26). Appointments of judges (a) Act announcing vacancies at the Supreme Court 26. On 24 May 2018 the President announced sixteen vacant positions of judges of the Supreme Court in the Disciplinary Chamber ( obwieszczenie Prezydenta, Monitor Polski – Official Gazette of the Republic of Poland of 2018, item 633). By the same act the President announced other vacant positions at the Supreme Court: twenty in the Chamber of Extraordinary Review and Public Affairs, seven in the Civil Chamber and one position in the Criminal Chamber. 27. At its sessions held on 23, 24, 27 and 28 August 2018, the NCJ closed competitions for vacant positions of judges at the Supreme Court. (b) Disciplinary Chamber 28. On 23 August 2018 the NCJ issued a resolution (no. 317/2018) recommending twelve candidates for judges of the Disciplinary Chamber and submitted the requests for their appointment to the President. 29. On 19 September 2018 the President decided to appoint ten judges, from among those recommended by the NCJ, to the Disciplinary Chamber of the Supreme Court. On 20 September 2018 the President handed the letters of appointment to the appointed judges and administered the oath of office to them. (c) Chamber of Extraordinary Review and Public Affairs 30. On 28 August 2018 the NCJ issued a resolution (no. 331/2018) recommending twenty candidates for judges of the Chamber of Extraordinary Review and Public Affairs and submitted the requests for their appointment to the President. 31. On 10 October 2018 the President decided to appoint nineteen judges, as recommended by the NCJ on 28 August 2018, to the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. On the same day the President handed the letters of appointment to the appointed judges and administered the oath of office to them. The twentieth candidate to be appointed, Judge A.S., was appointed by the President on 30 January 2019 after he had relinquished a foreign nationality. (d) Criminal and Civil Chambers 32. On 24 August 2018 the NCJ issued a resolution (no. 318/2018) recommending one candidate for the position of judge of the Criminal Chamber of the Supreme Court. 33. On 28 August 2018 the NCJ issued a resolution (no. 330/2018) recommending seven candidates for judges of the Civil Chamber of the Supreme Court. 34. On 10 October 2018 the President decided to appoint one judge to the Criminal Chamber and seven judges to the Civil Chamber of the Supreme Court, as recommended by the NCJ on 24 and 28 August 2018. On the same day the President handed the letters of appointment to the appointed judges and administered the oath of office to them. Appeals against the NCJ resolutions recommending judges for appointment to the Supreme Court (a) Disciplinary Chamber 35. On 25, 27 September and 16 October 2018 the Supreme Administrative Court dismissed requests lodged by various appellants to stay the execution ( o udzielenie zabezpieczenia ) of the NCJ’s resolution no. 317/2018 recommending candidates for appointment to the Disciplinary Chamber (see paragraph 28 above). The court noted that the NCJ resolution of 23 August 2018 had been delivered to the candidate G.H. on 14 September 2018, and he had lodged his appeal with the Supreme Administrative Court on 17 September 2018. However, on 19 September 2019 the President had appointed the judges recommended by the NCJ. NCJ resolution no. 317/2018 had therefore been enforced, which precluded any stay of execution. (b) Chamber of Extraordinary Review and Public Affairs 36. On 27 September 2018 the Supreme Administrative Court (case no. II GW 28/18) stayed the execution of the NCJ resolution of 28 August 2018 (no. 331/2018; see paragraph 30 above) recommending twenty candidates to the Chamber of Extraordinary Review and Public Affairs and not recommending other candidates, including the claimant A.B. (c) Criminal and Civil Chambers (i) Staying the execution of the NCJ’s resolutions 37. On 25 September 2018 the Supreme Administrative Court (case no. II GW 22/18) stayed the execution of the NCJ resolution of 24 August 2018 (no. 318/2018; see paragraph 32 above) recommending one candidate to the Criminal Chamber of the Supreme Court and not recommending other candidates, including the appellant C.D. 38. On 27 September 2018 the Supreme Administrative Court (case no. II GW 27/18) stayed the execution of the NCJ resolution of 28 August 2018 (no. 330/2018; see paragraph 33 above) recommending seven candidates for appointment to the Civil Chamber of the Supreme Court and not recommending other candidates, including the appellant I.J. The court noted that the NCJ had never transferred to the Supreme Administrative Court the appeal lodged by the appellant on 20 September 2018 although it had been obliged to do so under the law. (ii) Case of A.B. (II GOK 2/18) 39. On 1 October 2018 Mr A.B. lodged an appeal against the NCJ’s resolution of 28 August 2019 (no. 330/2018; see paragraph 33 above) which recommended seven candidates for judges to the Civil Chamber of the Supreme Court and decided not to recommend other candidates, including the appellant. On the same date the appellant asked for an interim measure to stay the execution of the resolution. 40. On 8 October 2018 the Supreme Administrative Court (case no. II GW 31/18) stayed the execution of the impugned resolution. The court noted that A.B.’s appeal of 1 October 2018 against the resolution had never been transmitted by the NCJ to the Supreme Administrative Court. 41. On 26 June 2019 the Supreme Administrative Court made a request for a preliminary ruling to the Court of Justice of the European Union (“CJEU”) and the latter gave judgment on 2 March 2021 (see paragraphs 165-167 below). 42. On 6 May 2021 the Supreme Administrative Court gave judgment (case no. II GOK 2/18). It quashed the impugned NCJ resolution no. 330/2018 in the part concerning the recommendation of seven candidates for appointment to the Civil Chamber of the Supreme Court. As regards the part of the resolution concerning the refusal to recommend certain other candidates it quashed it in so far as it concerned the appellant, A.B. (see also paragraphs 122 ‑ 125 below). 43. In the judgment, the Supreme Administrative Court held, pursuant to the CJEU judgments of 19 November 2019 and 2 March 2021 (see paragraphs 162-167 below), that the NCJ did not offer guarantees of independence from the legislative and executive branches of power in the process of appointment of the judges (see paragraph 123 below). 44. The court also noted that it did not appear that the NCJ – a body constitutionally responsible for safeguarding the independence of judges and courts – had been fulfilling these duties and respecting the positions presented by national and international institutions. In particular, it had not opposed actions which did not comply with the legal implications resulting from the interim order of the CJEU of 8 April 2020 (C-791/19; see paragraph 169 below). The actions of the NCJ in the case under consideration also showed that it had intentionally and directly sought to make it impossible for the Supreme Administrative Court to carry out a judicial review of the resolution to recommend (and not to recommend) candidates to the Civil Chamber of the Supreme Court. The NCJ transferred the appeal lodged by A.B. on 1 October only on 9 November 2019, while in the meantime it had transmitted the resolution to the President for him to appoint the recommended candidates. 45. Lastly, the Supreme Administrative Court agreed with the interpretation of the Supreme Court presented in the judgment of 5 December 2019 and the resolution of 23 January 2020 (see paragraphs 71 ‑ 86 and 89-105 below), that the President’s announcement of vacancies at the Supreme Court (see paragraph 26 above) necessitated, for it to be valid, a countersignature of the Prime Minister. The Court of Justice of the European Union judgment of 19 November 2019 (Joined Cases C ‑ 585/18, C-624/18, C-625/18) 46. In August and September 2018 the Labour and Social Security Chamber of the Supreme Court made three requests to the CJEU for a preliminary ruling ( pytania prejudycjalne ). The opinion of Advocate General Tanchev in those cases, delivered on 27 June 2019, analysed the qualifications required by the NCJ with reference to the Court’s case-law and concluded that the Disciplinary Chamber of the Polish Supreme Court did not satisfy the requirements of judicial independence (see paragraph 163 below). 47. The CJEU delivered a judgment on 19 November 2019 in which it considered that it was for the national court, i.e. the Supreme Court, to examine whether the Disciplinary Chamber of the Supreme Court was an impartial tribunal. The CJEU clarified the scope of the requirements of independence and impartiality in the context of the establishment of the Disciplinary Chamber so that the domestic court could itself issue a ruling (see paragraph 164 below). The Supreme Court’s rulingsJudgment of 5 December 2019 Judgment of 5 December 2019 Judgment of 5 December 2019 48. On 5 December 2019 the Supreme Court issued the first judgment in cases that had been referred for a preliminary ruling to the CJEU (case no. III PO 7/180; see paragraph 71 below). The Supreme Court concluded that the NCJ was not an authority that was impartial or independent from legislative and executive branches of power. Moreover, it concluded that the Disciplinary Chamber of the Supreme Court could not be considered a court within the meaning of domestic law and the Convention. Resolution of 8 January 2020 49. On 8 January 2020 the Chamber of Extraordinary Review and Public Affairs of the Supreme Court issued a resolution in which it interpreted the consequences of the CJEU judgment narrowly (I NOZP 3/19, see paragraph 87 below). The independence of the NCJ was to be examined only if raised in the appeal and the appellant would have to justify that the lack of independence of the NCJ had adversely affected the content of the resolution given in his or her case. Resolution of 23 January 2020 50. On 23 January 2020 three joined Chambers of the Supreme Court issued a joint resolution (see paragraph 89 below). The court agreed with the assessment in the judgment of 5 December 2019 that the NCJ had not been an independent and impartial body and that this had led to defects in the procedures for the appointment of judges carried out on the basis of the NCJ’s recommendations. With respect to the Disciplinary Chamber, the Supreme Court took into account its organisation, structure and appointment procedure and concluded that it structurally failed to fulfil the criteria of an independent court. Accordingly, the judgments given by the Disciplinary Chamber were not judgments given by a duly appointed court. In consequence, according to the resolution, court formations including Supreme Court judges appointed through the procedure involving the NCJ were unduly composed within the meaning of the relevant provisions of the domestic law. Constitutional Court Pending case before the Constitutional Court 51. On 29 March 2021 the Prime Minister referred the following request to the Constitutional Court: “Application to examine the compatibility of: (1) the first and second paragraphs of Article 1, in conjunction with Article 4(3) of the Treaty on European Union of 7 February 1992, hereinafter ‘TEU’, understood as empowering or obliging a law-applying body to derogate from the application of the Constitution of the Republic of Poland or ordering it to apply legal provisions in a manner inconsistent with the Constitution of the Republic of Poland, with Article 2; Article 7; Article 8 § 1 in conjunction with Article 8 § 2, Article 90 § 1 and Article 91 § 2; and Article 178 § 1 of the Constitution of the Republic of Poland; (2) Article 19(1), second subparagraph, in conjunction with Article 4(3) TEU, interpreted as meaning that, for the purposes of ensuring effective legal protection, the body applying the law is authorised or obliged to apply legal provisions in a manner inconsistent with the Constitution, including the application of a provision which, by virtue of a decision of the Constitutional Court, has ceased to be binding as being inconsistent with the Basic Law, with Article 2; Article 7; Article 8 § 1 in conjunction with Article 8 § 2 and Article 91 § 2; Article 90 § 1; Article 178 § 1; and Article 190 § 1 of the Constitution of the Republic of Poland; (3) 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 of Poland and to review a resolution of the National Council of the Judiciary concerning an application to the President of the Republic of Poland for appointment of a judge, with Article 8 § 1 in conjunction with Article 8 § 2, Article 90 § 1 and Article 91 § 2; Article 144 § 3 (17); and Article 186 § 1 of the Constitution of the Republic of Poland.” 52. On 17 May 2021 the Polish Commissioner for Human Rights joined the proceedings as a third-party intervener. He considered that the first two issues should not be examined by the Constitutional Court at all, and as regards the third, that it should turn to the CJEU for a preliminary ruling. 53. The proceedings are pending before the Constitutional Court (K 3/21). THE CIRCUMSTANCES OF THE CASE 54. The applicant is a barrister. 55. On 12 July 2017 the Pomerania Bar Chamber Disciplinary Court in Gdańsk ( Sąd Dyscyplinarny Pomorskiej Izby Adwokackiej w Gdańsku ) imposed a disciplinary penalty on the applicant. She was suspended for a period of three years in connection with various breaches of the Code of Bar Ethics ( Kodeks Etyki Adwokackiej ) in the course of performing her duties as representative of certain clients. The charges against her concerned, first, events dating back to October 2013 in respect of which she was charged with failure to display particular diligence when acting as her client’s representative, in particular by failing to settle financial accounts with him and return all documents. The second charge related to her non-compliance with a previous disciplinary order suspending her from practice and related to events in August 2015 when the applicant had continued to provide legal services despite that order. 56. The applicant appealed, contesting the facts as established by the Disciplinary Court and their assessment. 57. On 12 May 2018 the High Disciplinary Court of the Bar ( Wyższy Sąd Dyscylinarny Adwokatury ) upheld the ruling. The applicant lodged a cassation appeal with the Supreme Court. 58. On 14 February 2019 the Supreme Court, sitting as a panel of three judges of the Disciplinary Chamber (K.W., P.Z., and T.P.), dismissed the applicant’s cassation appeal. The decision contained no reasons. It was notified to the applicant’s lawyer on 20 February 2019. | The applicant, a barrister who had been suspended for three years following several incidents when she was representing a client, submitted that the Disciplinary Chamber of the Polish Supreme Court, which had decided on a case concerning her, had not been a “tribunal established by law” and had lacked impartiality and independence. |
1,039 | Care allowances and personal assistance | 2. The applicant was born in 1930 and died in 2020. He lived in Oradea. He was represented by Mr D.M. Marcu, a lawyer practising in Oradea. On 27 April 2020 Mr Ioan-Dan Jivan, his son and only heir, expressed his wish to continue the proceedings. 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. In 2017 the applicant was in his late eighties. He had a partially amputated leg, which he lost in 2015, when he was eighty-five years old, and suffered from several medical conditions, such as cataracts, loss of hearing and incontinence. He needed a wheelchair to move around and had recently become bedridden as he had lost the strength to manipulate his wheelchair. He lived on the fourth floor of a building and was helped in his daily activities by his son. There were no neighbours or other family members nearby to offer support. 6. On 27 June 2017 a physician acting at the request of the Bihor Commission for the Assessment of Adults with Disabilities (“the Commission”, see paragraph 14 below) evaluated the applicant’s functional status according to the index of independence in activities of daily living (“the ADL index”). She established the applicant’s score as follows: zero points in relation to personal hygiene, dressing, and using the bathroom – with occasional incontinence (one point) –, and two points in relation to feeding. The applicant’s overall score was three points (see paragraphs 16 to 19 below). 7. On 11 July 2017, following a visit to the applicant’s flat to assess his living arrangements and their compatibility with his medical situation, the Commission produced a social enquiry report. It noted that the applicant was bedridden, and could move around his flat only in a wheelchair. He needed help with feeding, moving and transport, using means of communication, taking care of his finances and medication. He was fully dependent on support for his personal hygiene, dressing, preparing food, housework, and grocery shopping. The report also mentioned that the applicant was living on his own and received money, food, and help with housekeeping from his son. 8. On 25 September 2017 an inspector from the Service for the Complex Evaluation of Adults with Disabilities of the Bihor County Directorate General for Social Welfare and Child Protection (see paragraph 14 below) visited the applicant’s home and reported on his living conditions. The report described the applicant’s medical condition and general poor physical state, and noted that he was unable to take care of his basic needs on his own, he was able to sit but not walk, had significantly lost his muscular mass, and weighed 40-45 kg. It recommended consolidating his support network and ensuring constant support to supplement his lost autonomy. 9. On 3 October 2017 the Commission issued a certificate establishing that the applicant suffered from a medium-level disability (see paragraph 15 below). The applicant contested the assessment and requested to be recognised as suffering from a severe disability necessitating a personal assistant. He explained his situation in detail and relied on his medical file, the ADL index and the social enquiry report. Eventually the certificate was annulled by the courts as it did not give reasons for the assessment (final decision of 5 November 2018 of the Oradea Court of Appeal). 10. On 20 December 2018 the Commission issued a new certificate, confirming the medium-level disability. The Commission also considered that the applicant’s condition was permanent and did not necessitate periodic reassessment. 11. On 14 January 2019 the applicant contested the Commission’s decision before the Bihor County Court and asked again to be recognised as suffering from a severe disability necessitating a personal assistant. He argued that the evidence adduced, that is, his medical file, the ADL index, and the social enquiry report, attested that he was completely reliant on support. He argued that the law classified that situation as being a case of severe disability necessitating a personal assistant. He noted that the Commission had not contested those findings but had failed to take them into account when establishing the degree of disability. 12. On 5 March 2019 the Bihor County Court allowed the applicant’s claim. The relevant parts of its decision read as follows: “In the light of the medical and psychosocial criteria set [by law] for the classification [into various degrees of disability], the ADL index, the medical evidence and the social enquiry report call for classifying [the applicant]’s disability as being severe necessitating a personal assistant. [Moreover] the law expressly provides that a patient who has completely lost the capacity to feed himself or herself, maintain personal hygiene and care, and thus needs assistance, a situation in which [the applicant] also finds himself, constitutes a severe disability necessitating a personal assistant. Despite this, the [Commission] classified [the applicant]’s condition as a medium-level disability. Consequently, the certificate must be annulled and the [Commission] must issue a new certificate correctly reflecting the [applicant’s] degree of disability, that is a severe disability necessitating a personal assistant. ... The court does not have the power to make a medical, psychological, and social evaluation of the patient, that evaluation being made by specialists. At the same time, the court does not decide on the patient’s level of disability, that decision being taken exclusively by the [Commission]. However, the court has the power to verify the correlation between the socio-medical reports and the level of disability as regulated by Order [no. 762/2007]. In the present case an inconsistency has been found [between the two], in so far as the medical and social reports call for a different level of disability than that which was established in the contested certificate, bearing in mind the table of classification provided for by Order [no. 762/2007].” 13. The Commission appealed and in a final decision of 22 May 2019, the Oradea Court of Appeal reversed the above judgment and found that the certificate of 20 December 2018 (see paragraph 10 above) had been accurate. The relevant parts of the decision read as follows: “The medical condition which was taken into account for establishing the level of disability is ‘partial amputation of the left leg’ and [the applicant] did not prove (with expert reports or medical data) that he also suffered from any other physical, sensory, psychiatric, mental and/or associated conditions which under Order [no. 762/2007] must be evaluated to establish the level and type of disability. ... The court notes that the applicant’s principal medical condition is not among those classified as constituting a severe disability, but among those classified as a medium disability. Contrary to the decision at first instance, the court considers that the ADL index of 27 June 2017, according to which [the applicant] ... is in a state of total dependency needing a personal assistant, and the social enquiry report according to which he needs help for his daily activities, medication and grocery shopping, are not sufficient to conclude that his disability is severe necessitating a personal assistant, in so far as his mobility condition is not among those classified by law at that level of disability, and as the assessment that the Commission undertakes is a complex process which takes into account not only social criteria but also medical and psychological criteria.” | In 2017 the applicant, born in 1930 and who was already suffering from several allegedly debilitating medical conditions, had a leg amputated. The case concerned a court ruling that he was only medium-level disabled, not severely disabled. The applicant complained, in particular, that he was forced into isolation by the Romanian authorities’ decision and the consequent denial of support, and that the related proceedings were overlong, especially for someone of his age. |
333 | Demonstrators | I. THE CIRCUMSTANCES OF THE CASE 11. Mrs Anca Mocanu and Mr Marin Stoica were born in 1970 and 1948 respectively. They live in Bucharest. 12. The Association “ 21 December 1989 ” ( Asociaţia 21 Decembrie 1989 ) was set up on 9 February 1990 and is based in Bucharest. 13. The applicant association brings together mainly individuals who were injured during the violent suppression of the anti-totalitarian demonstrations which took place in Romania in December 1989 and the relatives of persons who died during those events. It was one of the groups which supported the anti-government demonstrations held in Bucharest between April and June 1990, at which demonstrators called, inter alia, for the identification of those responsible for the violence committed in December 1989. A. The events of 13 to 15 June 1990 1. Overview of the main events 14. The main facts concerning the crackdown on anti-government demonstrations from 13 to 15 June 1990 were described in the decisions of 16 September 1998 (see paragraphs 99-110 below) and 17 June 2009 (see paragraphs 152-63 below), issued by the prosecutor ’ s office at the Supreme Court of Justice ( which in 2003 became the High Court of Cassation and Justice ), and in the decisions to commit for trial ( rechizitoriu ) issued by the same prosecutor ’ s office on 18 May 2000 and 27 July 2007. 15. On 13 June 1990 the security forces ’ intervention against the demonstrators who were occupying University Square and other areas of the capital resulted in several civilian casualties, including Mrs Mocanu ’ s husband, Mr Mocanu, who was killed by a shot fired from the headquarters of the Ministry of the Interior. 16. On the evening of 13 June 1990 Mr Stoica and other persons, some but not all of whom were demonstrators, were arrested and ill-treated by uniformed police officers and men in civilian clothing, in the area around the headquarters of the State television service and in the basement of that building. 17. On 14 June 1990 thousands of miners were transported to Bucharest, essentially from the Jiu Valley ( Valea Jiului ) mining region, to take part in the crackdown on the demonstrators. 18. At 6.30 a.m. on 14 June 1990 the President of Romania addressed the miners, who had arrived in the square in front of the Government building, inviting them to go to University Square, occupy it and defend it against the demonstrators; they subsequently did so. 19. The violent events of 13 and 14 June 1990 resulted in more than a thousand victims, whose names appear in a list attached to the decision issued on 29 April 2008 by the military section of the prosecutor ’ s office at the High Court of Cassation and Justice. 20. The headquarters of several political parties and other institutions, including those of the applicant association, were attacked and ransacked. The latter association subsequently joined the criminal proceedings as a civil party. 21. The criminal proceedings into the unlawful killing by gunfire of Mr Velicu -Valentin Mocanu are still pending. The investigation opened on 13 June 1990 into the ill-treatment allegedly inflicted on Mr Stoica was closed by a decision not to bring a prosecution, dated 17 June 2009, subsequently upheld by a judgment of the High Court of Cassation and Justice of 9 March 2011. 22. The facts as set out by the prosecutor ’ s office at the High Court of Cassation and Justice in its decisions of 16 September 1998 and 17 June 2009 and in the decisions to commit for trial of 18 May 2000 and 27 July 2007 may be summarised as follows. 2. The demonstrations held in the first months of 1990 23. University Square in Bucharest was considered a symbolic location for the fight against the totalitarian regime of Nicolae Ceauşescu, given the large number of persons who had died or were injured there as a result of the armed repression initiated by the regime on 21 December 1989. It was therefore in this square that several associations – including the applicant association – called on their members to attend protest events in the first months of 1990. 24. Thus, the first demonstrations against the provisional government formed after the fall of the Ceauşescu regime took place in University Square in Bucharest on 12 and 24 January 1990, as indicated in the decision issued on 17 June 2009 by the prosecutor ’ s office at the High Court of Cassation and Justice. That decision also states that a counter-demonstration was organised by the National Salvation Front ( Frontul Salvării Naţionale – the FSN) on 29 January 1990. On that occasion, miners from the coal-mining regions of the Jiu Valley, Maramureş and other areas appeared in Bucharest. The headquarters of the National Liberal Party were vandalised at that time. 25. From 25 February 1990, demonstrations were held every Sunday. According to the decision to commit for trial of 27 July 2007, they were intended to denounce the non-democratic attitude of those in power, who were accused of having “betrayed the ideals of the revolution”, and sought to alert the population to the threat of a new dictatorial regime. 26. Election campaigns were subsequently launched for parliamentary elections and the office of President of the Republic, to be held on 20 May 1990. 27. It was in this context that unauthorised “marathon demonstrations” ( manifestaţii maraton ) began on 22 April 1990 in University Square, at the initiative of the Students ’ League and other associations, including the applicant association. These demonstrations lasted fifty-two days, during which the demonstrators occupied University Square. The decisions of 16 September 1998 and 17 June 2009 indicate that the demonstrators, who had gathered in large numbers, were not violent and were essentially demanding that persons who had exercised power during the totalitarian regime be excluded from political life. They also called for a politically independent television station. 28. They called further for the identification of those responsible for the armed repression of December 1989 and demanded the resignation of the country ’ s leaders ( particularly the Minister of the Interior ), whom they considered responsible for the repression of the anti-communist demonstrations in December 1989. 29. On 22 April 1990 fourteen demonstrators were arrested by the police on the ground that the demonstration had not been authorised. Faced with the reaction of the public, who had arrived to boost the number of demonstrators in University Square, the police released the fourteen arrested demonstrators. The authorities did not use force again over the following days, although the Bucharest City Council had still not authorised the gathering. 30. Negotiations between the demonstrators and the provisional government resulted in stalemate. 31. On 20 May 1990 the presidential and parliamentary elections took place. The FSN and its leader, who was standing for President, won the elections. 32. Following those elections the protests continued in University Square, but were reduced from their original scale. Of the approximately 260 persons still present, 118 had gone on hunger strike. 3. The meeting held by the executive on 11 June 1990 33. On the evening of 11 June 1990 the new President elect of Romania and his Prime Minister convened a government meeting, attended by the Minister of the Interior and his deputy, the Minister of Defence, the director of the Romanian Intelligence Service ( Serviciul Român de Informaţii – the SRI ), the first deputy president of the ruling party (the FSN) and the Procurator General of Romania. This is established in the prosecution service ’ s decisions of 16 September 1998 and 17 June 2009. 34. At that meeting it was decided to take measures to clear University Square on 13 June 1990. In addition, it was proposed that the State organs, namely the police and army, would be assisted by some 5,000 mobilised civilians. Implementation of this measure was entrusted to the first deputy president of the FSN. Two members of that party ’ s steering committee opposed the measure, but without success. According to the decision of 17 June 2009, an action plan drawn up by General C. was approved by the Prime Minister. 35. On the same evening the Procurator General ’ s Office ( Procuratura Generală ) broadcast a statement on State television calling on the government to take measures so that vehicles could circulate again in University Square. 36. At a meeting held on the same evening with the participation of the Minister of the Interior, the head of the SRI and the head of police, General D.C. set out the plans for the police and gendarmerie, in collaboration with civilian forces, to clear University Square. Under this plan, the action was “to begin at 4 a.m. on 13 June 1990 by cordoning off the square, arresting the demonstrators and re-establishing public order”. 4. The sequence of events on 13 June 1990 37. At about 4.30 a.m. on 13 June 1990 members of the police and gendarmerie brutally charged the demonstrators in University Square. The arrested demonstrators were driven away and locked up at the Bucharest municipal police station. The 26 3 arrested individuals (or 262, according to the decision to commit for trial of 18 May 2000) included students from the Architecture Institute, who had been on the premises of their establishment, located on University Square, and who had not taken part in the demonstrations. The decision of 17 June 2009 indicated that the 263 persons who had been arrested were taken to the Măgurele barracks after being held in the police cells. 38. The police operation led to protests by many people, who demanded that the arrested demonstrators be released. According to the decision of 16 September 1998, those persons launched violent attacks on the security forces, hurling projectiles and setting cars on fire. According to the decision to commit for trial of 18 May 2000, those actions were the work of a few aggressive individuals who had infiltrated groups of peaceful demonstrators. 39. At about 10 a.m., workers from the factories of a large metallurgical company in Bucharest (IMGB) headed en masse for University Square to help the police arrest the demonstrators. According to the decision of 16 September 1998, they acted in a chaotic and heavy-handed manner, hitting out blindly and making no distinction between demonstrators and mere passers-by. 40. On the afternoon of 13 June 1990, the demonstrations intensified around the television building, University Square, the Ministry of the Interior and the municipal police station, all locations where, according to the demonstrators, the persons who had been arrested could be held prisoner. 41. Following those incidents, the army intervened and several armoured vehicles were sent to the headquarters of the Ministry of the Interior. 42. According to a report by the Ministry of the Interior, referred to by the Government in their observations, at about 6 p.m. the headquarters of the Ministry of the Interior were surrounded by between 4,000 and 5,000 demonstrators; on the orders of Generals A.G. and C.M., servicemen posted inside the Ministry fired at the ceilings of the entrance halls with a view to dispersing the demonstrators. 43. Three persons were killed by the shots fired in the Ministry of the Interior. 44. It was in those circumstances that, at about 6 p.m., when he was a few metres away from one of the doors of the Ministry, the first applicant ’ s husband was killed by a bullet which hit the back of his head after having ricocheted. Those events are described in detail in the decisions of 18 May 2000 and 27 July 2007 committing for trial the Minister of the Interior at the relevant time, a general and three colonels. According to the first decision to commit for trial, the applicant ’ s husband and the other victims, who were returning from their workplaces on that day, were unarmed and had not previously taken part in the marathon demonstrations in University Square. Mere spectators of the events, they had been killed by bullets which had ricocheted. 45. The security forces shot and killed a fourth person in another district of Bucharest. Another died shortly after having been stabbed in the area around the television headquarters. 46. On 13 June 1990 no servicemen were subjected to violence by the demonstrators, as attested by the decision to commit for trial of 27 July 2007. According to that document, the army had fired 1,466 bullets from inside the Ministry of the Interior headquarters on that date. 47. In addition, other persons, including Mr Stoica, were beaten and detained by police officers and civilians in the headquarters of the State television station, in the circumstances described below. 48. The headquarters of the State television station were at that time guarded by 82 servicemen, backed by 14 armed vehicles, and subsequently reinforced by other groups of armed forces, the largest of which contained 156 servicemen ( who arrived at 7 p.m. ), a detachment of parachutists ( 7.30 p.m. ), 646 servicemen ( 8 p.m. ), 118 parachutists ( 11 p.m. ) and 360 servicemen with 13 other armed vehicles ( 11 p.m. ). 49. At about 1 a.m. the demonstrators were chased out of the television headquarters following this mass intervention. 5. Circumstances specific to Mr Marin Stoica 50. Towards the end of the afternoon on 13 June 1990, while he was walking to his workplace along a street near the State television headquarters, the applicant was brutally arrested by a group of armed individuals and taken by force into the television building. In sight of the police officers and servicemen present, civilians struck and bound him, then took him to the basement of the building. He was then led into a television studio, where several dozen other persons were already present. They were filmed in the presence of the then director of the State television station. The recordings were broadcast during the night of 13 to 14 June 1990, accompanied by commentary which described the persons concerned as employees of foreign secret services who had threatened to destroy the television premises and equipment. 51. In the course of the same night the applicant was beaten, struck on the head with blunt objects and threatened with firearms until he lost consciousness. 52. He woke up at around 4.30 a.m. in the Floreasca Hospital in Bucharest. According to the forensic medical report drawn up on 18 October 2002, the medical certificate issued by the hospital ’ s emergency surgery department stated that the applicant had been admitted at about 4.30 a.m. on 14 June 1990 and diagnosed as suffering from bruising on the left side of the abdomen and ribcage, abrasions on the left side of his ribcage resulting from an assault, and craniocerebral trauma. 53. Fearing further ill-treatment, he fled from the hospital, which was surrounded by police officers, at about 6.30 a.m. 54. His identity papers had been confiscated during the night of 13 to 14 June 1990. Three months later he was invited to collect them from the Directorate of Criminal Investigations at the General Inspectorate of Police. In the meantime, he had remained shut away at home for fear of being arrested again, tortured and imprisoned. 6. The miners ’ arrival in Bucharest 55. According to the decision of 16 September 1998, witness M.I., an engineer, who at the relevant time was head of department at the Craiova agency of the national railway company ( Regionala CFR Craiova ), had stated that, on the evening of 13 June 1990, the director of that agency had ordered that the scheduled trains be cancelled and that 4 train convoys, or a total of 5 7 wagons, be made available to the miners at Petroşani station, in the heart of the Jiu Valley mining area. 56. M.I. had added that the order seemed to him unlawful and that he had attempted to prevent the miners ’ transportation to Bucharest by cutting the electricity provision to the railway line on the journey indicated. He had stated that, faced with his insubordination, the director of the Craiova CFR agency had ordered that he be replaced and had the railway line restored to use by about 9 p.m. It appears that M.I. was subsequently dismissed and brought before the prosecution service. 57. According to the decision issued on 10 March 2009 by the prosecutor ’ s office at the High Court of Cassation and Justice, on 14 June 1990 11 trains – a total of 120 wagons – transporting workers, especially miners, had travelled to Bucharest from several industrial regions around the country. The first had reached Bucharest at 3.45 a.m., the last at 7.08 p.m. 58. The decision of 16 September 1998 states that the miners had been informed that they were to help the police re-establish public order in Bucharest, and that they were armed with axes, chains, sticks and metal cables. 59. The decision of 10 March 2009 indicates that the miners had been mobilised by the leaders of their trade union. Questioned as a witness, the President of the Federation of Miners ’ Unions, who became mayor of Lupeni in 1998, stated that 5 trains carrying the miners had arrived at Bucharest station at about 1 a.m. on 14 June 1990, that the miners had been greeted by the deputy Minister for Mines and a Director General from that Ministry, and that these two senior government officials had led them to University Square. 7. The sequence of events on 14 June 1990 60. On the morning of 14 June 1990, groups of miners first stopped at Victory Square ( Piaţa Victoriei ), at the government headquarters. 61. At about 6.30 a.m., the Head of State addressed the miners who were gathered in front of the government building, inviting them to cooperate with the security forces and to restore order in University Square and in other areas where incidents had occurred. In this speech, which is reproduced in full in the decision of 17 June 2009, he urged them to head towards University Square and occupy it, informing them that they would be confronted with “openly fascist elements who had committed acts of vandalism ” by setting fire to the headquarters of both the Ministry of the Interior and of the police and “besieging the television building”. 62. Immediately afterwards groups of miners were led “by unidentified persons” to the headquarters of opposition parties and associations perceived as hostile to the authorities. 63. The miners were flanked by troops from the Ministry of the Interior, with whom they formed “mixed teams”, and set out to look for demonstrators. The decision of 17 June 2009 indicates that “acts of extreme cruelty [took place] on this occasion, with violence being used indiscriminately against demonstrators and Bucharest residents who were totally unconnected with the demonstrations”. The decision of 10 March 2009 indicates that the miners also attacked the homes of persons of Roma ethnicity. According to that decision, the miners had “selection criteria” for identifying those persons who, in their opinion, were suspected of taking part in the University Square demonstrations, and attacked “as a general rule, Roma, students, intellectuals, journalists and anyone who did not recognise their legitimacy”. 64. The groups of miners and the other persons accompanying them ransacked the headquarters of the National Farmers ’ Party ( Partidul Naţional Ţărănesc Creştin şi Democrat ) and the National Liberal Party, and the headquarters of other legal entities, such as the Association of Former Political Prisoners ( Asociaţia Foştilor Deţinuţi Politici ), the League for the Protection of Human Rights ( Liga pentru Apărarea Drepturilor Omului ) and the Association “21 December 1989” (the applicant association). 65. According to the decision of 16 September 1998, no one present in the headquarters of those political parties and associations at that time was spared by the miners. All were attacked and had their possessions confiscated. Many were apprehended and handed over to the police – who were there “as though by coincidence” – and detained in an entirely unlawful manner. 66. Other groups of miners had gone to University Square. On arrival, they broke into the University premises and the Architecture Institute, located on University Square. They attacked the staff and students whom they encountered there, subjecting them to violence and humiliating acts. The miners apprehended everyone on the premises and handed them over to the police and gendarmes. The arrested persons were taken by the law-enforcement officers to police stations or to the Băneasa and Măgurele military barracks. 67. The miners then moved into the streets surrounding University Square and continued their activities there. 68. According to the decision of 17 June 2009, 1,021 individuals – including 63 who were then under age – were apprehended in those circumstances. Of those individuals, 1 8 2 of them were placed in pre-trial detention, 88 received an administrative penalty and 706 were released “after checks”. 69. The decision of 16 September 1998 states that “the miners [ended] their law-enforcement activities on 15 June 1990, after the President of Romania had thanked them publicly for what they had done in the capital, and authorised them to return to their work”. 70. That decision also indicates that some of those who were beaten and imprisoned were unlawfully detained for several days and that several of them were released on 19 and 20 June 1990. 71. The other persons in police custody were placed in pre-trial detention, on a decision by the prosecutor, for causing a breach of the peace; their number included the current president of the applicant association, who was subsequently acquitted of all the charges against him. 72. The decision of 17 June 2009 states that the miners acted in close collaboration with the security forces and on the instructions of the State ’ s leaders. The relevant passages read as follows: “ On 14 and 15 June 1990 the miners, in groups coordinated by civilians on behalf of and with the agreement of the State ’ s leaders [ în numele şi cu acordul conducerii de stat ], committed acts in which the State ’ s law-enforcement forces fully collaborated [ deplină cooperare ] and which caused not only physical harm to the persons who were apprehended for checks, but also significant damage to the premises of the University of Bucharest, the Architecture Institute, several political parties and civilian associations, and the homes of figures from so-called ‘ historical ’ parties ... The investigations conducted by the military prosecutors have not permitted identification of the persons in civilian clothing who had infiltrated the miners ’ groups; the victims who were questioned had distinguished between the miners and their other attackers by describing the first as ‘ dirty miners ’ and the second as ‘ clean miners ’. 8. Circumstances specific to the applicant association 73. On 13 June 1990 the applicant association publicly condemned the violent interventions of the same day. 74. At about 11 p.m. the leaders of the association decided, as a security measure, to spend the night in its headquarters. Seven of them remained there during the night. 75. At 7 a.m. on 14 June 1990, a group of miners forcibly entered the applicant association ’ s premises after breaking a window pane. In the first few minutes after entering they were not violent, and were rather reserved. Shortly afterwards an unidentified civilian, who was not a miner, arrived on the scene and began hitting one of the members of the association. The miners followed his lead, brutally attacking the seven members of the association, who were then arrested by the security forces. 76. During that day all of the association ’ s property and documents were seized, in breach of the legal formalities, under the supervision of troops from the Ministry of Defence. 77. On 22 June 1990 the leaders of the association were able to return to the association ’ s premises, accompanied by the police. 9. Developments subsequent to the events of 13 to 15 June 1990 78. The above-cited decisions of the prosecutor ’ s office indicate that, instead of immediately returning to their homes, 958 miners remained in Bucharest, “ready to intervene should the protests recommence”, notably with a view to the impending swearing-in of the newly elected President. From 16 to 19 June 1990 those miners were accommodated in military barracks in Bucharest, where they received military uniforms. 79. The decision of 16 September 1998 indicates that the investigation was unable to elucidate who had given the order to house and equip the miners, but specifies that “such a measure had to have been taken at least at Ministry of Defence level ”. 80. According to a press release issued by the Ministry of Health on 15 June 1990 and reproduced in the decision of 17 June 2009, during the period between 13 June and 6 a.m. on 15 June 1990, 467 persons went to hospital following the violent incidents; 112 were kept in hospital and 5 deaths were recorded. 81. According to the same decision of 17 June 2009, police officers, miners and later the military conscripts responsible for supervising the miners used excessive force against the 574 demonstrators and the other persons – including children, elderly persons and blind people – who had been arrested and detained in the Măgurele military barracks. The decision states that the detainees on those premises were subjected to violence and assaults of a “psychological, physical and sexual” nature and held in inappropriate conditions, and that they received belated and inadequate medical care. B. The criminal investigation 82. The violent events of June 1990, in the course of which the husband of the applicant Anca Mocanu was killed and Mr Stoica was allegedly ill-treated, and which resulted in the ransacking of the applicant association ’ s headquarters, gave rise to the opening of an investigation. It was initially divided up into several hundred different case files. 83. On 29 May 2009 the military section of the prosecutor ’ s office at the High Court of Cassation and Justice sent a letter to the Government ’ s Agent, in which the facts were summarised as follows: “ Over the period from 1990 to 1997, hundreds of complaints were registered on the rolls of the prosecutor ’ s office at the Bucharest County Court and the district prosecutor ’ s offices concerning the offences of theft, destruction, armed robbery, assault causing bodily harm, unlawful deprivation of liberty and other offences committed in the context of the acts of violence committed by miners in Bucharest on 14 and 15 June 1990. In the majority of those cases, it having proved impossible to identify the perpetrators, a decision was issued not to bring a prosecution.” 84. No decision to discontinue the proceedings was communicated to Mrs Mocanu or to the applicant association, which had joined the proceedings as a civil party. 85. Those case files were subsequently joined and the scope of the investigation was broadened from 1997 onwards, the events having been given a different legal classification involving aggravated criminal responsibility. Senior army officers and State officials were successively charged and the entire investigation was transferred to the military section of the prosecutor ’ s office at the Supreme Court of Justice ( Parchetul de pe lângă Curtea Supremă de Justiţie – Secţia Parchetelor Militare ) as case no. 160/P/1997. 86. Between 22 October 1997 and 27 October 1999, 183 previously opened cases were joined to case no. 160/P/1997, of which 46 were joined on 22 October 1997, 90 on 16 September 1998 and 69 on 22 October 1999. 87. On 26 June 2000 the same military prosecutor ’ s section was assigned 748 cases concerning the events of 13 to 15 June 1990, including, in particular, the unlawful deprivations of liberty on 13 June 1990. 88. In the decision of 17 June 2009, the state of the file as it existed after the joinder of all those cases is described as follows : “ Many of the documents included in the 250 volumes of the file are photocopies which have not been stamped or have not been certified as corresponding to the original. The documents in each of those volumes are not filed by date, subject or another criterion, but in a disorderly fashion. Some of them have nothing to do with the case ( for example, volume 150 contains files concerning disappearances which occurred after June 1990 ). ... ” 89. On 16 September 1998 case no. 160/P/1997 was split into four cases and the subsequent investigation was assigned to the military section of the prosecutor ’ s office at the Supreme Court of Justice. 90. On 8 January 2001 three of those four cases were joined. After that date the investigation focused on two main cases. 91. The first concerned charges of incitement to or participation in aggravated unlawful killing, particularly that of Velicu -Valentin Mocanu. The persons accused of that offence were the President of Romania at the relevant time and five senior army officers, including the Minister of the Interior. 92. The decision of 19 June 2007 to bring charges, and the subsequent decision of 19 July 2007 to sever the charges, state that, on orders from the then President, on the evening of 13 June and the night of 13 to 14 June 1990 the security forces and army personnel used their weapons and heavy ammunition against demonstrators, killing four persons, injuring three others and endangering the lives of other persons. 93. The charges against the former President were subsequently severed from those against the other defendants, who were high-ranking military officers, and a decision to discontinue proceedings against him was issued. 94. At 2 October 2013 this first branch of the investigation was still pending in respect of two of the officers in question, the three others having died in the meantime. 95. The other case concerning the events of June 1990, which investigated, in particular, the criminal complaint for violence lodged by Mr Stoica and the ransacking of the applicant association ’ s premises, concerned charges of incitement to commit or participation in acts of sedition ( subminarea puterii de stat ), sabotage ( actele de diversiune ), inhuman treatment ( tratamentele neomenoase ), propaganda in favour of war ( propaganda pentru război ) and genocide, within the meaning of Article 357 (a) to (c) of the Criminal Code. 96. The persons accused of those acts were the former President, several high-ranking officers and dozens of civilians. Proceedings were brought in respect of these charges against the former President on 9 September 2005 and against the former head of the SRI on 12 June 2006. 97. This second branch of the investigation was closed by a decision not to bring a prosecution, adopted on 17 June 2009. That decision was upheld by a judgment delivered on 9 March 2011 by the High Court of Cassation and Justice following an appeal by Mr Stoica. 98. The main stages of the investigation are described below. 1. The decision adopted on 16 September 1998 99. On 16 September 1998 the military section of the prosecutor ’ s office at the Supreme Court of Justice issued its decision in case no. 160/P/1997, following an investigation concerning sixty-three persons who had been victims of violence and unlawful arrests, including Mrs Mocanu and three members of the applicant association, as well as the applicant association itself and eleven other legal entities whose premises had been ransacked during the events of 13 to 15 June 1990. 100. Of the sixty-three victims listed in the table contained in the decision of 16 September 1998, three had been assaulted and deprived of their liberty at the headquarters of the State television station. In the final column, indicating the stage reached in the investigations, the table notes that “the case has not been investigated ” ( cauza nu este cercetată ) in respect of those three persons. 101. In its decision, the military section of the prosecutor ’ s office indicated that other complaints were pending before the civilian prosecutors ’ offices. 102. It added that its decision also concerned “the presumed unlawful killing of about one hundred individuals during the events of 13 to 15 June 1990, [whose corpses] were allegedly incinerated or buried in common graves in cemeteries in villages near Bucharest (notably Străuleşti )”. 103. It also indicated that, to date, the investigation had been unable to identify the persons who had implemented in practice the executive ’ s decision to summon civilians to restore order in Bucharest. According to the prosecution service, this failing in the investigation was due to the “fact that none of the persons who held posts of responsibility at the relevant time [had] been questioned”, particularly the then President of Romania, the Prime Minister and his deputy, the Minister of the Interior, the head of the police, the director of the SRI and the Minister of Defence. 104. In its decision, the military section ordered that the case be split into four separate case files. 105. The first of those files was to focus on the continued investigation into the unlawful killing by gunfire of four civilians, including the first applicant ’ s husband. 106. The second file targeted those persons who had exercised functions pertaining to civilian and military command. The authorities decided to pursue the investigation in respect of them, in particular for abuse of power against the public interest entailing serious consequences, an offence punishable under Article 248 § 2 of the Criminal Code, and also to investigate the fact that one social group had been enlisted alongside the security forces to combat other social groups. 107. The third file concerned the continuing investigations into the possible existence of other victims who had been killed during the violent incidents of 13 to 15 June 1990 (see paragraph 102 above). 108. Lastly, considering that the prosecution was statute-barred, the military section of the prosecutor ’ s office decided to discontinue the proceedings against unidentified members of the security forces and groups of miners in respect of the offences of armed robbery, unlawful deprivation of liberty, abusive conduct, improper investigation, abuse of power against private interests, assault, actual bodily harm, destruction of property, theft, breaking and entering homes, malfeasance and rape, committed between 13 and 15 June 1990. 109. This part of the decision of 16 September 1998 was set aside in a decision issued on 14 October 1999 by the head of the military section of the prosecutor ’ s office ( Şeful Secţiei Parchetelor Militare ) at the Supreme Court of Justice, which ordered that the proceedings and investigations intended to identify all the victims be resumed, specifying in that respect that it had been established that the number of victims greatly exceeded that of the injured parties listed in the impugned decision. 110. In addition, the decision of 14 October 1999 noted that the investigators had so far failed to conduct investigations into the “known collusion” between the Ministry of the Interior and the leaders of the mining companies “with a view to organising a veritable apparatus of unlawful repression ”, that collusion having been established, according to the decision by the evidence contained in the case file. 2. Subsequent developments in the investigation in respect of senior army officials for participation in unlawful killing 111. After the decision of 16 September 1998, the investigations into the unlawful killing of Mr Velicu -Valentin Mocanu continued under case no. 74/P/1998 (see paragraph 105 above). 112. Mrs Mocanu and the two children she had had with the victim joined the proceedings as civil parties. 113. Two generals – the former Minister of the Interior and his deputy – and three senior-ranking officials were charged with the unlawful killings committed on 13 June 1990, including that of the applicant ’ s husband, on 12, 18 and 21 January and 23 February 2000 respectively. 114. All five were committed for trial on the basis of a decision to that effect ( rechizitoriu ) of 18 May 2000, on the ground that they had called for – and, in the case of the two generals, ordered – the opening of fire with heavy ammunition, an act which resulted in the death of four individuals and which caused serious injury to nine other persons. 115. By a decision of 30 June 2003, the Supreme Court of Justice remitted the case to the military section of the prosecutor ’ s office at the Supreme Court of Justice for additional investigation intended to remedy various deficiencies, and reclassified the offence as participation in aggravated unlawful killing. It also ordered a series of investigative measures to be taken. 116. Mrs Mocanu, other civil parties and the military section of the prosecutor ’ s office appealed against that decision on points of law. Their appeals were dismissed by the High Court of Cassation and Justice ( as the Supreme Court of Justice was renamed in 2003, see paragraph 14 above) in a judgment of 16 February 2004. 117. After the investigation was resumed, the proceedings against the five defendants were discontinued by a decision of 14 October 2005. That decision having been overturned on 10 September 2006, the proceedings were reopened. 118. After carrying out an additional investigation in line with the instructions set out in the judgment of 30 June 2003, the military section of the prosecutor ’ s office at the High Court of Cassation and Justice committed the former Minister of the Interior, his deputy and two other senior army officers for trial in a decision to that effect of 27 July 2007. It discontinued proceedings against the fifth officer, who had died in the meantime. According to the decision to commit for trial, “the lack of reaction by the public authorities” and the lack of an immediate effective investigation “[had] endangered the very existence of democracy and the rule of law”. 119. By a judgment of 17 December 2007, the High Court of Cassation and Justice ordered that the case be sent back to the military section of the prosecutor ’ s office for a breach of procedural rules, primarily on the ground that criminal proceedings against a former minister could only be brought through a special procedure requiring prior authorisation by Parliament. 120. On 15 April 2008 the military section of the prosecutor ’ s office at the High Court of Cassation and Justice lodged an appeal on points of law against that decision, but this was dismissed on 23 June 2008. 121. On 30 April 2009 the military section of the prosecutor ’ s office at the High Court of Cassation and Justice stated that it did not have jurisdiction to examine this branch of the case, mainly because members of the police force – including the Minister of the Interior – had become civil servants following a legislative amendment, and the military courts and prosecutors thus no longer had jurisdiction over their criminal acts, even where those had been committed while they were still military officers. It therefore relinquished jurisdiction to one of the ordinary criminal sections of the same prosecutor ’ s office, namely the Criminal Proceedings and Criminalistics Section ( Secţia de urmărire penală şi criminalistică ). 122. By a decision of 6 June 2013, that Section discontinued the proceedings against the former minister and his deputy, both of whom had died on 2 November 2010 and 4 February 2013 respectively. 123. By the same decision, the same Section of the prosecutor ’ s office declared that it did not have jurisdiction in respect of the last two surviving defendants, Colonels C.V. and C.D., and referred their cases to the military prosecutor ’ s office at the Bucharest regional military court. 124. This investigation was pending before that prosecutor ’ s office on 2 October 2013. 3. The charges against the former President of the Republic in respect of the death of Mrs Mocanu ’ s husband 125. This part of the investigation concerned the charges against the former President of the Romanian Republic with regard to the victims who were killed or injured by gunshots fired by the army on 13 June 1990. 126. The former President of Romania, in office from 1989 to 1996 and from 2000 to 2004, was charged on 19 June 2007, by which date he was exercising the functions of senator and was a member of parliament. He was accused of having “deliberately incited servicemen to use force against the demonstrators in University Square and in other districts of the capital, an act which resulted in the death or injury by gunfire of several persons”. Those facts were characterised as participation lato sensu in aggravated unlawful killing, a crime punishable under Articles 174, 175 (e) and 176 (b) of the Criminal Code, taken together with Article 31 § 2 of that Code. 127. On 19 July 2007 those charges were severed from case no. 74/P/1998. The investigation continued under case no. 107/P/2007. 128. In the meantime, on 20 June 2007 the Constitutional Court, ruling in a case unrelated to the present one, had delivered a judgment ruling that the military courts did not have jurisdiction to judge or prosecute civilian defendants. In consequence, by a decision of 20 July 2007 the military section of the prosecutor ’ s office held that it did not have jurisdiction to examine case no. 107/P/2007 and relinquished jurisdiction to one of the ordinary criminal sections. 129. On 7 December 2007 the Procurator General of Romania set aside, for procedural errors, the indictment of 19 June 2007, and ordered that the investigation be resumed. 130. By a decision of 10 October 2008, the Criminal Proceedings and Criminalistics Section of the prosecutor ’ s office at the High Court of Cassation and Justice issued a decision not to bring a prosecution, on the ground that there was no causal link between the order to clear University Square issued by the former President and the decision taken by three officers, with the agreement of their superiors – General A. and General C. ( Minister of the Interior ) – to give the order to open fire on the demonstrators. In so ruling, the prosecutor ’ s office held that the objectives of the action plan drawn up on 12 June 1990 had been fulfilled by 9 a.m. on the following morning, and that the following events, including the subsequent orders to open fire, had had nothing to do with that plan and could not have been foreseen by those who prepared it. 131. On 3 November 2008 Mrs Mocanu and other injured parties challenged this decision not to bring a prosecution. 132. On 18 December 2009 a three-judge bench of the High Court of Cassation and Justice dismissed their appeals, finding them inadmissible, out of time or unfounded, depending on the case. It concluded that there was no causal link between the acts imputed to the former President and the unpredictable consequences of the demonstrations which had resulted in the deaths of several persons. Moreover, it noted that three of the injured parties – widows or relatives of the victims who died on 13 and 14 June 1990 –, including Mrs Mocanu, had stated at a hearing on 11 December 2009 that they did not intend to challenge the decision not to bring a prosecution in respect of the former President and that they wished only that those responsible for the unlawful killings be identified and that they be held liable. Following an appeal on points of law by the civil parties, that decision was upheld by a nine-judge bench of the High Court in a judgment of 25 October 2010. 4. The investigative measures regarding the circumstances of Mr Velicu ‑ Valentin Mocanu ’ s death 133. According to the forensic autopsy report carried out on Mrs Mocanu ’ s husband, he died as a result of gunshot wounds inflicted by a third party. 134. The applicant made her first specific request to join the proceedings as a civil party on 11 December 2000. On the same date the applicant and the other civil parties – relatives of the three other persons who had been killed during the events of 13 and 14 June 1990 – filed joint pleadings containing their observations as to the identity of those responsible for the deaths of their relatives, and their claims for compensation. 135. On 14 February 2007 the applicant was questioned for the first time by the prosecutor ’ s office for the purposes of the investigation. Assisted by a lawyer of her own choice, she stated that her husband had not returned home on the evening of 13 June 1990, that this had worried her, that she had searched for him the following day without success, and that she had subsequently learned from the press that he had been killed by a shot to the head. No investigator or official representative had visited her, nor had she been summoned for the purposes of the investigation; only a few journalists had come to see her. She stated that, aged 20 and without employment at the relevant time, since her husband ’ s death she had raised their two children, a daughter of two months (born in April 1990) and a two-year-old son, alone. 136. The documents in the file submitted to the Court do not indicate whether Mrs Mocanu was kept informed about developments in the investigation into the aggravated unlawful killing of her husband following the High Court of Cassation and Justice ’ s judgment of 17 December 2007 ordering that the case be remitted to the prosecutor ’ s office. 5. Subsequent developments in the investigation into charges of inhuman treatment 137. Between 26 November 1997 and 12 June 2006, criminal proceedings were brought against 37 persons – 28 civilians and 9 servicemen – essentially for acts of sedition committed in the course of the events of June 1990. The former President of Romania was among those prosecuted. He was charged on 9 June 2005 with participation in genocide (paragraphs (a), (b) and (c) of Article 357 of the Criminal Code), propaganda in favour of war (Article 356), inhuman treatment (Article 358), sedition (Article 162) and acts of sabotage (Article 163). The vast majority of the 28 civilians charged were directors of mining companies, heads of miners ’ trade unions and senior civil servants in the Ministry of Mines. 138. On 16 September 1998 this branch of the investigation was allocated the file number 75/P/1998 (see paragraph 106 above). 139. On 19 December 2007 the military section of the prosecutor ’ s office at the High Court of Cassation and Justice ordered that the case in file no. 75/P/1998 be split into two parts, one concerning the criminal charges against the 28 civilians, including the former President of Romania and the former head of the SRI, and the other concerning the charges against the 9 servicemen. The investigation with regard to the 28 civilians was to be pursued before the relevant civilian section of the same prosecutor ’ s office. 140. By a decision of 27 February 2008, the head prosecutor in the military section of the prosecutor ’ s office set aside the decision of 19 December 2007, finding that, given the close connection between the events, a single prosecutor ’ s office, namely the relevant civilian section, was to examine the entirety of the case in respect of all of the defendants, both civilians and servicemen. 141. In line with that decision, on 29 April 2008 the military section of the prosecutor ’ s office at the High Court of Cassation and Justice also relinquished jurisdiction to the relevant civilian section for examination of the criminal charges against the 9 servicemen – including several generals, the former head of police and the former Minister of the Interior. 142. The decision of 29 April 2008 contained a list of more than a thousand victims who had been held and subjected to ill-treatment, notably on the premises of the Băneasa Officers ’ School and the Măgurele military unit. Mr Stoica was included in this list of victims. The decision also contained a list of the legal entities which had sustained damage during the crackdown of 13 to 15 June 1990, including the applicant association. 143. That decision also referred to “identification of the approximately 100 persons who died during the events of 13 to 15 June 1990 ”. 144. It also contained a list of the State-owned companies which had provided workers for the intervention in Bucharest. That list included, in particular, twenty mining companies from all around the country and factories in eleven towns ( Călăraşi, Alexandria, Alba-Iulia, Craiova, Constanţa, Deva, Giurgiu, Galaţi, Braşov, Slatina and Buzău), as well as three factories in Bucharest. 145. Following that decision, on 5 May 2008 the military section of the prosecutor ’ s office sent the 209 volumes, containing a total of some 50,000 pages, from case no. 75/P/1998 to the relevant civilian section of the prosecutor ’ s office. 146. On 26 May 2008 the section of the prosecutor ’ s office at the High Court of Cassation and Justice which had received the entire file, namely the Criminal Proceedings and Criminalistics Section, stated that it did not have jurisdiction, and relinquished jurisdiction to another section of the same prosecutor ’ s office, namely the Directorate for Investigating Organised Crime and Terrorism ( Direcţia de Investigare a Infracţiunilor de Criminalitate Organizată şi Terorism – DIICOT ). 147. By a decision of 10 March 2009, the relevant directorate of the prosecutor ’ s office at the High Court of Cassation and Justice, namely the DIICOT, decided that no prosecution would be brought against the former head of the SRI on the charge of sedition, as that offence had become time-barred, and that no prosecution would be brought against the majority of the 27 civilian defendants – directors of mining companies, heads of miners ’ trade unions, senior civil servants at the Ministry of Mines and in local government – on the ground that the constituent elements of the offence had not been made out. 148. In so ruling, the prosecutor ’ s office considered that, in their respective capacities as Head of State, Minister of the Interior, deputy minister or Head of Police, some of the defendants exercised State authority, and it would have been illogical to think that they could have committed acts capable of undermining their own power. As to the miners and other workers who had travelled to Bucharest on 14 June 1990, the prosecutor ’ s office considered that they had “turned themselves into security forces” and been persuaded that their actions served State power. In addition, it noted that their intervention had been pointless, since the operation conducted by the parachutists at the television headquarters had enabled order to be restored in the capital at about 1 a.m. on 14 June 1990. 149. The prosecution also discontinued the proceedings against three of the defendants, who had died in the meantime. 150. Lastly, the DIICOT decided to relinquish jurisdiction to the Criminal Proceedings and Criminalistics Section with regard to the remainder of the case, namely the charges of inhuman treatment, propaganda in favour of war and genocide, within the meaning of Article 357 ( a) to ( c) of the Criminal Code. Those facts concerned only nine of the persons who had been charged during the period 2000 - 06, including the former president. 151. On 17 June 2009 a decision was taken not to bring a prosecution in respect of those charges; its content is set out below. 6. The decision of 17 June 2009 not to bring a prosecution 152. On 17 June 2009 the prosecutor ’ s office at the High Court of Cassation and Justice issued a decision not to bring a prosecution in the case, concerning essentially charges of inhuman treatment arising from 856 complaints by persons injured as a result of the violence committed from 13 to 15 June 1990. 153. The decision in question indicated that the former Head of State had not been examined as a defendant in the course of the investigation. 154. It gave a comprehensive description of the violence – classified as extreme cruelty – inflicted on several hundred persons. 155. It was indicated that the investigations conducted over approximately nineteen years by the civilian prosecutor ’ s offices and, subsequently, by the military prosecuting authorities, had not made it possible to establish the identity of the perpetrators or the degree of involvement of the security forces. The relevant passage from the decision reads as follows: “The investigations carried out over a period of about nineteen years by the civilian prosecutors ’ offices and, subsequently, by the military prosecuting authorities, the findings of which are contained in case file ... have not made it possible to establish the identity of the miners who committed the attack, the degree of involvement in their actions by the security forces and members and sympathisers of the FSN and their role and degree of involvement in the acts of violence carried out against the residents of the capital on 14 and 15 June 1990. ” 156. This decision ordered that proceedings be discontinued against one of the defendants, who had died in the meantime, and that no prosecution would be brought ( scoatere de sub urmărire penală ) in respect of the eight remaining defendants for those offences which had become statute -barred, in particular harbouring a criminal. 157. With regard to the offences which had not become time-barred, especially those of inhuman treatment, the decision stated that there was no case to answer, since the constituent elements of the offences had not been made out or because the reality of the events complained of had not been proven. 158. In this connection, it was indicated that the then Head of State could not be criticised for any form of participation in the joint actions by the miners and the armed forces, as he had merely approved the actions which occurred on the morning of 13 June 1990 and the army ’ s intervention on the afternoon of the same date, for the stated purpose of restoring order. It was also mentioned that there was no information ( date certe ) to substantiate accusations against him with regard to the preparations for the miners ’ arrival in Bucharest and the instructions they had been given. It was noted that his request to the miners to protect the State institutions and to restore order – following which 1,021 persons had been deprived of their liberty and subjected to physical assault – could only be classified as incitement to commit assault and that criminal liability in that respect was time-barred. 159. The prosecutor ’ s office considered that the demonstrators and other persons targeted by the miners belonged to various ethnic groups (Romanians, Roma, Hungarians) and social categories ( intellectuals, students, school pupils, but also workers ), and that they could not therefore be regarded as a single group or an identifiable community on objective geographical, historical, social or other grounds, and for that reason the events complained of could not be classified as genocide. Relying on the case-law of the International Criminal Tribunal for the former Yugoslavia, the prosecutor ’ s office also considered that the persons deprived of liberty had not been systematically subjected to ill-treatment. 160. The decision further indicated that the speech by which the Head of State had encouraged the miners to occupy and defend University Square against the demonstrators camping out there could not be interpreted as propaganda in favour of war, as the accused had not sought to instigate a conflict of any kind, but had, on the contrary, asked the miners “ to put an end to excess and acts of bloodshed ”. 161. It was also indicated that the miners had been motivated by simplistic personal convictions, developed on the basis of collective hysteria, which had led them to act as arbitrators of the political situation and zealous guardians of the political regime – the leaders of which had recognised them as such –, authorised to “correct” those who opposed its legitimacy. The prosecutor further noted the legal requirement that, to be punishable, the inhuman treatment had to target “individuals who [had] fallen into enemy hands” and considered that this criterion had not been met here, since the miners no longer had any enemy against whom to fight on 14 June 1990. 162. With regard to the accusations of torture, the prosecutor considered that Romanian law contained no provisions against torture at the material time. 163. The decision of 17 June 2009 analyses each of the charges in respect of each defendant, but refers to none of the victims by name and does not mention the individual acts of violence complained of by each of them, referring to an appendix which has not been submitted to the Court. It mentions the number of victims and their membership of such or such a category, noting, for example, the 425 persons who were arrested and held on the premises of the Băneasa Officers ’ School or the 574 demonstrators who were arrested and imprisoned on the premises of the Măgurele military base. 7. Appeals lodged against the decision not to bring a prosecution of 17 June 2009 164. The applicant association, other legal entities and individuals lodged an appeal against the decision of 17 June 2009 not to bring a prosecution, which was dismissed on 3 September 2009 by the head prosecutor of the relevant section of the prosecutor ’ s office at the High Court of Cassation and Justice. In so ruling, the prosecutor ’ s office considered that no actions which could be classified as a crime against humanity, such as inhuman treatment or genocide, had been committed. 165. Mr Stoica and four other injured parties also lodged an appeal against the same decision. It was dismissed on 6 November 2009. Mr Stoica lodged on appeal on points of law before the High Court of Cassation and Justice. 166. On 9 March 2011, having dismissed the plea of res judicata raised by the former Head of State, the High Court of Cassation and Justice ruled on the merits of the decision not to bring a prosecution, and dismissed the applicant ’ s appeal. 167. In its judgment, it classified the assault against the applicant as grievous bodily harm ( Article 182 of the Criminal Code ), unlawful arrest, ill-treatment ( Article 267), torture, unjust repression and blackmail. It considered that the decision of 17 June 2009 had been correct in ruling that no prosecution was to be brought, on the ground that the offences in question had become time-barred and that torture had not been a criminal offence at the material time. 168. In contrast, it did not rule on the criminalisation of inhuman treatment ( Article 358 of the Criminal Code), which had been the subject of the decision of 29 April 2008, in which the applicant was named as a victim of the inhuman treatment imputed to five generals. 8. Summary and clarifications concerning the investigative measures 169. According to the Government, the main investigative measures carried out in the period between 1990 and 2009 were as follows: more than 840 interviews with injured parties; hearing of witnesses on more than 5,724 occasions; and more than 100 forensic medical reports. The results of those measures were set out in several thousand pages of documents. ( a) Investigative measures concerning Mr Stoica in particular 170. On 18 June 2001, when he was received by a prosecutor at the military section of the prosecutor ’ s office at the Supreme Court of Justice, Mr Stoica lodged an official complaint concerning the violence of which he claimed to have been victim on the night of 13 to 14 June 1990. 171. His complaint was joined to the investigation file already opened in respect of other charges, especially inhuman treatment ( case file no. 75/P/1998). 172. On 18 October 2002, for the purposes of the investigation into the alleged assault against him, the applicant underwent an examination at the State Institute of Forensic Medicine, which produced a forensic medical report. That report indicated that the injuries described in the medical file opened by the emergency unit on 14 June 1990 had required three to five days of medical treatment and had not been such as to endanger the applicant ’ s life. 173. It was also indicated that the applicant had been hospitalised for major epileptic fits from 31 October to 28 November 1990, in February 1997, March 2002 and August 2002, and that he had been diagnosed as suffering from post-traumatic secondary epilepsy and other cerebral and vascular disorders (transient ischemic attacks – TIAs). The expert report noted that the post-traumatic epilepsy had appeared following an injury sustained in 1966. 174. On 9 and 17 May 2005 the applicant was questioned and was able to give his point of view on the events complained of and submit his claims for compensation in respect of the alleged pecuniary and non-pecuniary damage. 175. By a letter of 23 May 2005, he was informed by the military section of the prosecutor ’ s office at the High Court of Cassation and Justice that his complaint concerning the injuries inflicted on 13 June 1990 by unidentified servicemen, which had resulted in his hospitalisation “in a coma”, was being investigated in the context of case no. 75/P/1998. 176. A certificate issued on 26 April 2006 indicates that, according to the entries in the register held by the military section of the prosecutor ’ s office at the High Court of Justice and Cassation, the applicant had been received by a prosecutor in 2002, 2003, 2004, 2005 and 2006, mainly for the purposes of the investigation or to enquire about progress in the investigation. The applicant lodged two additional complaints, on 12 September and 4 October 2006 respectively. 177. On 23 April 2007 the prosecutor questioned two witnesses indicated by the applicant. 178. When questioned on 9 May 2007 as an injured party, the applicant asked the military prosecutor to order a second forensic medical report, since he considered that the 2002 report had entirely failed to emphasise the seriousness of the injuries sustained in 1990 and the continuing after-effects of those injuries. 179. The prosecutor ordered a new report. Among other things, he asked the forensic specialists to examine whether a causal link existed between the injury sustained by the applicant in June 1990 and the medical conditions from which he was suffering on the date on which the report was ordered. 180. During his questioning, the applicant was invited to watch a video recording of the events of 13 June 1990, including those at the headquarters of the State television station. He recognised himself, and asked that the video recording be added to the investigation file. 181. On 25 June 2007 the new medical report was added to the case file. It specified, again on the basis of the medical records drawn up on 14 June 1990, that the applicant ’ s injuries had required three to five days of medical treatment and that they had not been life-threatening. It specified that there was no causal link between the injuries sustained on the night of 13 to 14 June 1990 and the applicant ’ s medical problems, which had subsequently required numerous periods of hospitalisation. 182. On 30 October 2007, at the applicant ’ s request, the medical observation files on his condition prepared by the emergency unit of Bucharest Hospital in 1992 were added to the file. 183. The medical board at the National Social Security Fund had previously issued the applicant with a certificate, dated 24 May 2007, indicating that he was suffering from “overall accentuated impairment” resulting in total inability to work. The relevant passages of this certificate read as follows: “ In view of the medical records in the patient ’ s file, the documents which have been added recently ... and the clinical psychiatric examination conducted on 24 May 2007, the specialist committee and the higher committee reach the following clinical diagnosis: mixed personality disorders, aggravated by organic causes. Acute traumatic brain injury 1990 (assault ). Epilepsy with partial generalised secondary crises, confirmed clinically and by EEG, currently rare .... , supraventricular incidents in his medical history ( irregular heart rhythm ( flutter ) and atrioventricular block ..., with a return to sinus rhythm ... after cardioversion ). Functional diagnosis: overall accentuated impairment. Fitness for work: totally lost, 2 nd level invalidity. Adaptive incapacity: 72% ” 184. In the meantime, on 10 May 2004 the prosecutor ’ s office at the Bucharest County Court had issued a decision not to bring a prosecution in another case, following a complaint of attempted murder lodged by the applicant on the basis of the same facts. ( b) Clarifications regarding the examination of the criminal complaint, with a request to join the proceedings as a civil party, lodged by the applicant association 185. On 9 July 1990 Bucharest military unit no. 02515 sent the applicant association a letter informing it that “an inventory of the items found on 14 June 1990 [at the association ’ s headquarters] [had] been drawn up by the representatives of the Procurator General ’ s Office ( Procuratura Generală ) and placed, with an official report, at the headquarters of the Bucharest Prosecutor ’ s Office ( Procuratura Municipiului Bucureşti )”. 186. On 22 July 1990 two police officers went to the applicant association ’ s headquarters. They noted that the windows had been broken and the locks destroyed, and that the items in the headquarters had “all been ransacked”. They drew up a report in the presence of the association ’ s leaders and a witness. 187. On 26 July 1990 the applicant association lodged a criminal complaint with the Bucharest Prosecutor ’ s Office, complaining about the ransacking of its headquarters and the attacks sustained by some of its members on 14 June 1990, and demanded the restitution of all the materials and documents which had been confiscated. It requested leave to join the criminal proceedings as a civil party. 188. On 22 October 1997 the General Inspectorate of Police sent the prosecutor ’ s office at the Supreme Court of Justice twenty-one case files, opened following criminal complaints by several individuals and legal entities with regard to the events of 13 and 14 June 1990. Those files included case file no. 1476/P/1990, which concerned the applicant association ’ s complaint regarding the ill-treatment inflicted on several of its members. The General Inspectorate of Police invited the prosecutor ’ s office to inform it of the steps to be taken with a view to conducting interviews for the purpose of the investigation. 189. The applicant association contacted the prosecutor ’ s office at the Supreme Court of Justice, subsequently the High Court of Cassation and Justice, on a regular basis for information concerning progress in the investigation or to request additional investigative measures, until the investigation was closed by the decision of 17 June 2009 not to bring a prosecution. | This case concerned in particular the investigation which followed the violent crackdown on anti-government demonstrations in Bucharest in June 1990. During the crackdown, the first applicant’s husband was killed by gunfire and the second applicant was arrested and ill-treated by the police. Both applicants submitted that Romania had failed in its obligations to conduct an effective, impartial and thorough investigation capable of leading to the identification and punishment of those responsible for the armed repression. |
600 | Proselytism | I. THE CIRCUMSTANCES OF THE CASE 6. Mr Minos Kokkinakis, a retired businessman of Greek nationality, was born into an Orthodox family at Sitia ( Crete ) in 1919. After becoming a Jehovah ’ s Witness in 1936, he was arrested more than sixty times for proselytism. He was also interned and imprisoned on several occasions. The periods of internment, which were ordered by the administrative authorities on the grounds of his activities in religious matters, were spent on various islands in the Aegean (thirteen months in Amorgos in 1938, six in Milos in 1940 and twelve in Makronisos in 1949). The periods of imprisonment, to which he was sentenced by the courts, were for acts of proselytism (three sentences of two and a half months in 1939 - he was the first Jehovah ’ s Witness to be convicted under the Laws of the Metaxas Government (see paragraph 16 below) -, four and a half months in 1949 and two months in 1962), conscientious objection (eighteen and a half months in 1941) and holding a religious meeting in a private house (six months in 1952). Between 1960 and 1970 the applicant was arrested four times and prosecuted but not convicted. 7. On 2 March 1986 he and his wife called at the home of Mrs Kyriakaki in Sitia and engaged in a discussion with her. Mrs Kyriakaki ’ s husband, who was the cantor at a local Orthodox church, informed the police, who arrested Mr and Mrs Kokkinakis and took them to the local police station, where they spent the night of 2-3 March 1986. A. Proceedings in the Lasithi Criminal Court 8. The applicant and his wife were prosecuted under section 4 of Law no. 1363/1938 making proselytism an offence (see paragraph 16 below) and were committed for trial at the Lasithi Criminal Court ( trimeles plimmeliodikio ), which heard the case on 20 March 1986. 9. After dismissing an objection that section 4 of that Law was unconstitutional, the Criminal Court heard evidence from Mr and Mrs Kyriakaki, a defence witness and the two defendants and gave judgment on the same day: "[The defendants], who belong to the Jehovah ’ s Witnesses sect, attempted to proselytise and, directly or indirectly, to intrude on the religious beliefs of Orthodox Christians, with the intention of undermining those beliefs, by taking advantage of their inexperience, their low intellect and their naïvety. In particular, they went to the home of [Mrs Kyriakaki] ... and told her that they brought good news; by insisting in a pressing manner, they gained admittance to the house and began to read from a book on the Scriptures which they interpreted with reference to a king of heaven, to events which had not yet occurred but would occur, etc., encouraging her by means of their judicious, skilful explanations ... to change her Orthodox Christian beliefs." The court found Mr and Mrs Kokkinakis guilty of proselytism and sentenced each of them to four months ’ imprisonment, convertible (under Article 82 of the Criminal Code) into a pecuniary penalty of 400 drachmas per day ’ s imprisonment, and a fine of 10,000 drachmas. Under Article 76 of the Criminal Code, it also ordered the confiscation and destruction of four booklets which they had been hoping to sell to Mrs Kyriakaki. B. The proceedings in the Crete Court of Appeal 10. Mr and Mrs Kokkinakis appealed against this judgment to the Crete Court of Appeal ( Efetio ). The Court of Appeal quashed Mrs Kokkinakis ’ s conviction and upheld her husband ’ s but reduced his prison sentence to three months and converted it into a pecuniary penalty of 400 drachmas per day. The following reasons were given for its judgment, which was delivered on 17 March 1987 : "... it was proved that, with the aim of disseminating the articles of faith of the Jehovah ’ s Witnesses sect ( airesi ), to which the defendant adheres, he attempted, directly and indirectly, to intrude on the religious beliefs of a person of a different religious persuasion from his own, [namely] the Orthodox Christian faith, with the intention of changing those beliefs, by taking advantage of her inexperience, her low intellect and her naïvety. More specifically, at the time and place indicated in the operative provision, he visited Mrs Georgia Kyriakaki and after telling her he brought good news, pressed her to let him into the house, where he began by telling her about the politician Olof Palme and by expounding pacifist views. He then took out a little book containing professions of faith by adherents of the aforementioned sect and began to read out passages from Holy Scripture, which he skilfully analysed in a manner that the Christian woman, for want of adequate grounding in doctrine, could not challenge, and at the same time offered her various similar books and importunately tried, directly and indirectly, to undermine her religious beliefs. He must consequently be declared guilty of the above-mentioned offence, in accordance with the operative provision hereinafter, while the other defendant, his wife Elissavet, must be acquitted, seeing that there is no evidence that she participated in the offence committed by her husband, whom she merely accompanied ..." One of the appeal judges dissented, and his opinion, which was appended to the judgment, read as follows: "... the first defendant should also have been acquitted, as none of the evidence shows that Georgia Kyriakaki ... was particularly inexperienced in Orthodox Christian doctrine, being married to a cantor, or of particularly low intellect or particularly naïve, such that the defendant was able to take advantage and ... [thus] induce her to become a member of the Jehovah ’ s Witnesses sect." According to the record of the hearing of 17 March 1987, Mrs Kyriakaki had given the following evidence: "They immediately talked to me about Olof Palme, whether he was a pacifist or not, and other subjects that I can ’ t remember. They talked to me about things I did not understand very well. It was not a discussion but a constant monologue by them. ... If they had told me they were Jehovah ’ s Witnesses, I would not have let them in. I don ’ t recall whether they spoke to me about the Kingdom of Heaven. They stayed in the house about ten minutes or a quarter of an hour. What they told me was religious in nature, but I don ’ t know why they told it to me. I could not know at the outset what the purpose of their visit was. They may have said something to me at the time with a view to undermining my religious beliefs .... [However,] the discussion did not influence my beliefs ..." C. The proceedings in the Court of Cassation 11. Mr Kokkinakis appealed on points of law. He maintained, inter alia, that the provisions of Law no. 1363/1938 contravened Article 13 of the Constitution (see paragraph 13 below). 12. The Court of Cassation ( Arios Pagos ) dismissed the appeal on 22 April 1988. It rejected the plea of unconstitutionality for the following reasons: "Section 4 of Law no. 1363/1938, substituted by section 2 of Law no. 1672/1939 providing for the implementation of Articles 1 and 2 of the Constitution and enacted under the 1911 Constitution then in force, Article 1 of which prohibited proselytism and any other interference with the dominant religion in Greece, namely the Christian Eastern Orthodox Church, not only does not contravene Article 13 of the 1975 Constitution but is fully compatible with the Constitution, which recognises the inviolability of freedom of conscience in religious matters and provides for freedom to practise any known religion, subject to a formal provision in the same Constitution prohibiting proselytism in that proselytism is forbidden in general whatever the religion against which it is directed, including therefore the dominant religion in Greece, in accordance with Article 3 of the 1975 Constitution, namely the Christian Eastern Orthodox Church." It also noted that the Crete Court of Appeal had given detailed reasons for its judgment and had complied with the 1975 Constitution in applying the impugned provisions. In the opinion of a dissenting member, the Court of Cassation should have quashed the judgment of the court below for having wrongly applied section 4 of Law no. 1363/1938 in that it had made no mention of the promises whereby the defendant had allegedly attempted to intrude on Mrs Kyriakaki ’ s religious beliefs and had given no particulars of Mrs Kyriakaki ’ s inexperience and low intellect. III. THE JEHOVAH ’ S WITNESSES IN GREECE 22. The Jehovah ’ s Witnesses movement appeared in Greece at the beginning of the twentieth century. Estimates of its membership today vary between 25,000 and 70,000. Members belong to one of 338 congregations, the first of which was formed in Athens in 1922. 23. Since the revision of the Constitution in 1975 the Supreme Administrative Court has held on several occasions that the Jehovah ’ s Witnesses come within the definition of a "known religion" (judgments nos. 2105 and 2106/1975, 4635/1977, 2484/1980, 4620/1985, 790 and 3533/1986 and 3601/1990). Some first-instance courts, however, continue to rule to the contrary ( Heraklion Court of First Instance, judgments nos. 272/1984 and 87/1986). In 1986 the Supreme Administrative Court held (in judgment no. 3533/1986) that a ministerial decision refusing the appointment of a Jehovah ’ s Witness as a literature teacher was contrary to freedom of conscience in religious matters and hence to the Greek Constitution. 24. According to statistics provided by the applicant, 4,400 Jehovah ’ s Witnesses were arrested between 1975 (when democracy was restored) and 1992, and 1,233 of these were committed for trial and 208 convicted. Earlier, several Jehovah ’ s Witnesses had been convicted under Law no. 117/1936 for the prevention of communism and its effects and Law no. 1075/1938 on preserving the social order. The Government have not challenged the applicant ’ s figures. They have, however, pointed out that there have been signs of a decline in the frequency of convictions of Jehovah ’ s Witnesses, only 7 out of a total of 260 people arrested having been convicted in 1991 and 1992. | A Jehovah’s Witness, the applicant complained of his criminal conviction of proselytism by the Greek courts in 1988 after engaging in a conversation about religion with a neighbour, the wife of a cantor at a local Orthodox church. |
338 | Freedom of expression (Article 10) | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1980 and lives in Helsinki. 10. He is a photographer and journalist who is employed by the weekly magazine Suomen Kuvalehti. On 9 September 2006 he was sent by his employer to take photographs of the demonstration which was being held in protest against the ongoing Asia ‑ Europe Meeting (ASEM) in Helsinki. The demonstration was an exceptionally large one in the Finnish context and all the media were following it closely. The applicant was to conduct an extensive report on the demonstration for the paper version of the magazine and also to publish it online immediately, once the demonstration had ended. 11. The following account of the circumstances of the case is based on the parties’ submissions, including the DVD material covering the Smash ASEM event (see paragraph 7 above) as well as the Helsinki District Court judgment (see paragraph 37 below). A. The Smash ASEM demonstration 12. On 30 August 2006, before the demonstration took place, the Finnish Security Intelligence carried out an assessment of the risk levels inherent in the upcoming Smash ASEM demonstration and alerted the Helsinki Police Department that the demonstration would be a hostile one and would not aim to highlight any clear political message. At that time the Police Department did not manage, despite all efforts, to establish contact with the organisers of the demonstration. The police based their subsequent actions, inter alia, on these grounds. 13. A similar risk assessment had also been carried out in the context of two earlier demonstrations which had taken place in Helsinki during the same year, both of which had turned violent. The first one was the EuroMayDay demonstration of 30 April 2006, when a march of approximately 1,500 persons evolved into a riot with projectiles being thrown and property damaged. Consequently, the District Court found eight persons guilty of violent rioting and resisting the police by violence and imposed suspended prison sentences. A similar incident took place during the Helsinki Night of the Arts on 24 August 2006 which also resulted in the destruction of property and violence and led to the detention of fifty-six persons. 14. On 8 September 2006 the so-called Dongzhou Coalition notified the police of the Smash ASEM demonstration. According to the report of the Deputy Parliamentary Ombudsman (see paragraph 34 below), the police did not have any information on the Dongzhou Coalition and it was thus unclear to them who the organiser was in reality. It appears from public sources that the said “coalition” was an informal group open to anyone who agreed with the idea behind the Smash ASEM demonstration and who undertook not to bring any party emblems to the demonstration site. 15. The demonstrators announced that they were planning to march on 9 September 2006 between 5.45 p.m. and 9 p.m. from the Kiasma Museum of Contemporary Art – an area of dense traffic – to the Helsinki Exhibition and Convention Centre where the ASEM Summit was to be held, a distance of 4.9 kilometres. The announced march route was as follows: Mannerheimintie – Kaivokatu – Siltasaarenkatu – Agricolankatu – Kaarlenkatu – Helsinginkatu – Läntinen Brahenkatu – Sturenkatu – Aleksis Kivenkatu – Ratapihantie – Asemapäällikönkatu – Ratamestarinkatu – Rautatieläistenkatu, ending at the park next to the velodrome which is close to the Summit venue. The theme of the demonstration was opposition to the ASEM Summit, with some focus on human rights issues. In posters inviting people to take part in the demonstration, the demonstrators were asked to wear black clothing. The posters also portrayed a demonstrator throwing a Molotov cocktail and they encouraged would-be participants, inter alia, to “ bring even a little bit of mayhem to the streets of Helsinki” (“ tuoda edes hieman sekasortoa myös Helsingin kaduille ”, “ att få även en liten bit av kaos också på gatorna i Helsingfors ” ). 16. According to the Government, the police were able to make telephone contact with one of the organisers named as the contact person for the event. However, that person, acting on behalf of the organisers, refused to discuss matters relating, inter alia, to the conditions in which the demonstrators would be able to march from the site of the demonstration to the vicinity of the exhibition centre where the ASEM Summit was being held. This refusal extended also to police efforts to establish contact with the organisers at the site of the demonstration itself. 17. According to the Government, there was a separate area reserved by the police for media representatives to cover the event. It was located at Paasikivi Square, opposite the Kiasma Museum of Contemporary Art, on the other side of Mannerheimintie. The police, as was standard procedure, had notified major Finnish media organisations of the Smash ASEM event and included the contact details of the police’s public-relations unit, which was available to discuss any questions the media might have about covering the event, including information on an area reserved for the media’s convenience. Furthermore, the Helsinki District Police public-relations unit had charged a senior officer to be present at that very same area to answer any questions media representatives might have, as well as to give interviews on the events that unfolded during the day. 18. The demonstration was to start at 6 p.m. on 9 September 2006. Some 500 bystanders, a core group of about fifty demonstrators and some fifty journalists congregated at the starting-point of the march. The police had made security preparations for the event by deploying 480 police and border-guard officers. By Finnish standards, the scale of the police preparations was exceptional. 19. At the start of the demonstration, bottles, stones and jars filled with paint were thrown at the public and police officers. Some demonstrators kicked and hit police officers. Apparently, at around 6.05 p.m., police officers surrounded the area of the demonstration. At this point people were free to pass through the line of officers. The police announced several times over loudspeakers that a peaceful demonstration was allowed to take place on the spot but that the crowd was not allowed to demonstrate by marching. 20. After the escalation of violence, the police considered at 6.30 p.m. that the event had turned into a riot. From 6.30 p.m. to 7.17 p.m. the police sealed off the area in an effort to contain the rioting. The crowd tried to break through the police cordon. However, during this time, the police did allow families with children, and representatives of the media, to pass through. This passage was, at times, subject to bottles and other projectiles being thrown at the spot where people were leaving. 21. The police announced over loudspeakers that they were stopping the demonstration and that the crowd should leave the scene. This announcement was repeated several times. Hundreds of people then left voluntarily via several exit routes established by the police. When leaving, they were asked to show their identity cards and their belongings were checked. 22. The applicant claimed that the line of policemen surrounding the cordon was extremely tight and multi-layered. The visibility from outside the cordon to inside was practically non-existent. The police minibuses and detention buses also impeded visibility. At 7.15 p.m. the police started to set up a second, wider cordon and fenced off the whole immediate downtown area. It was not possible to see the Kiasma area from nearby streets. 23. Some demonstrators were apprehended within the cordoned-off area by force. The apprehensions by the police were effected using the “paint-chain” method, part of which includes the opening up of the police cordon to allow detaining officers to act, followed by that cordon’s immediate closure after the detained person has been secured. 24. The police announced repeatedly that the crowd should disperse. The applicant claimed that he heard the police order that the area be cleared for the first time at 8.30 p.m. The applicant called his employer and they had a conversation about whether the applicant should leave the area. The applicant noted that on the basis of, inter alia, this conversation he came to the conclusion that his presence inside the cordon was necessary. 25. Towards the end of the demonstration, the applicant maintained that he had placed himself between the police and the demonstrators. The police continued to order the crowd to disperse, stating that any person who did not leave would be apprehended. At about 9 p.m. a police officer told the applicant personally that he had one last chance to leave the scene. The applicant told the police officer that he was reporting for Suomen Kuvalehti and that he was going to follow the event to its end, after which the police officer had left him alone. The applicant thought that the police would not interfere with his work after he had given them this explanation. 26. By 9 p.m., about 500 people had left the scene via the police checkpoints. According to the applicant, about twenty demonstrators were still sitting on the ground in the middle of the first cordoned-off area, closely encircled by the police. The demonstrators held on to one another and were holding each other’s arms. The situation inside the cordon had already been peaceful for an hour at this point. After this, the police broke up the crowd of demonstrators and apprehended the protesters. 27. The applicant claimed that, before he was apprehended, he heard a police officer shout: “Get the photographer!” The applicant was standing next to a former member of parliament and taking photographs when he was apprehended. He told the apprehending officer that he was a journalist, which the police officer later confirmed. The apprehending officer stated during the pre-trial investigation that the applicant did not resist the apprehension and that he had asked to make a telephone call, which he had been allowed to do. The applicant called his colleague at the magazine, explaining that the police had detained him and that he did not know what was going to happen next. He thought that he would be released soon. The applicant had also told the apprehending police officer that he had cameras in his bag, which information was taken into account by the police officer: the applicant was allowed to put his camera equipment away in his camera bag. When the apprehending police officer had asked for identification, the applicant had presented his press card. Another police officer present during the applicant’s apprehension stated during the pre-trial investigation that the applicant did not resist apprehension but that he had not heard the applicant identify himself as a journalist. The apprehending officer also testified that he had filled in the apprehension document, giving the reasons for the applicant’s apprehension and recording his personal information. According to the pre-trial investigation report, the basis for the applicant’s apprehension was contumacy towards the police. 28. The applicant was then taken to a bus for detainees. In the bus, he allegedly explained to the police again that he was a magazine photographer. The applicant was taken to the police station where he asked to speak with the chief constable. He allegedly explained again that he was a journalist but his requests were ignored. He claimed that he “held up” his press card and started to wear it visibly on his chest thereafter. The applicant also claimed that the receiving police officer at the police station had to remove his press card which was hanging around his neck. According to the applicant, the receiving police officer at the police station was therefore aware that he was a journalist. While in the custody cell, the applicant allegedly shouted also to passing police officers that they had apprehended a journalist, but he was ignored. 29. The applicant claimed that his camera equipment and memory cards had been confiscated. However, the Government maintained that, as soon as the police had found out that the applicant was a member of the press, his camera, memory cards and other equipment were immediately treated as journalistic sources and were not confiscated. He had been able to retain the photographs and no restrictions on the use of the photographs had been imposed on him by any authority at any stage. According to the report of the Deputy Parliamentary Ombudsman (see paragraph 34 below), the police had checked the content of the detainees’ mobile telephones. However, it is not clear whether the applicant’s mobile telephone was checked or whether his memory cards were inspected. 30. The police kept the applicant in detention from 9 September at 9.26 p.m. until 10 September at 3.05 p.m., that is, for seventeen and a half hours. He was interrogated by the police on 10 September between 1.32 p.m. and 1.57 p.m. 31. The applicant’s employer, the editor-in-chief of the magazine, apparently learned about the applicant’s apprehension and that he was being held in police custody. It would appear that he telephoned the police station but was given no information concerning the applicant’s apprehension. According to the applicant, it was only when the editor-in-chief called a senior official (whose name the applicant did not mention in his submissions) at the Ministry of the Interior the following day that preparations were made for the applicant’s release. 32. The police apprehended 128 persons altogether at the demonstration site. The police released minors (sixteen individuals) after a few hours’ apprehension. The majority of those who were apprehended were released on 11 September 2006. The applicant was the seventh detainee to be interrogated and the sixth to be released after minors. The last suspect was released on 12 September 2006 at 11.07 a.m. B. Subsequent developments 33. Both domestic and international media reported the event and the police measures widely. The matter was also the subject of a wide-ranging investigation by the Deputy Parliamentary Ombudsman in 2006 and 2007. However, due to procedural rules, the Deputy Parliamentary Ombudsman could not investigate the applicant’s case because the criminal proceedings were pending against him at that time. 34. It appears from the report of the Deputy Parliamentary Ombudsman of 9 September 2006, inter alia, that the police did not have any information on the Dongzhou Coalition and that it was thus unclear to them who the organiser of the demonstration was in reality. It also appears that the police checked the content of the detainees’ mobile telephones. Moreover, the Deputy Parliamentary Ombudsman criticised, inter alia, the fact that there had been an insufficient number of checkpoints in relation to the number of people, and that the three-hour duration of holding people within the cordoned-off area was unnecessarily long. The Deputy Parliamentary Ombudsman also questioned the legality of the security checks. 35. On 5 February 2007 the police informed thirty-seven suspects that, for their part, the preliminary investigation was discontinued and that their cases would not be referred to the public prosecutor for the consideration of charges. The public prosecutor brought charges against eighty-six persons altogether. C. The criminal proceedings against the applicant 36. On 23 May 2007 the public prosecutor brought charges against the applicant for contumacy towards the police ( niskoittelu poliisia vastaan, tredska mot polis ) under Chapter 16, section 4(1), of the Penal Code ( rikoslaki, strafflagen). 37. On 17 December 2007 the Helsinki District Court ( käräjäoikeus, tingsrätten ) found the applicant guilty of contumacy towards the police under Chapter 16, section 4(1), of the Penal Code but did not impose any penalty on him. The applicant stated before the District Court that he had heard the orders to disperse at around 8.30 p.m. but had understood them as applying only to the demonstrators. The court found it established that the police actions had been legal and that the applicant had been aware of the orders of the police to leave the scene but had decided to ignore them. It appeared from the witness statements given before the court that the applicant had not said or indicated to a police officer standing nearby at the time of the apprehension that he was a journalist. According to this police officer, this fact only became known to him when the magazine relating the events at the demonstration came out. It appeared also from the witness statement of another journalist that he and a third photographer, who had been in the sealed-off area, had been able to leave the scene without consequences just before the applicant was apprehended. This last remaining journalist stated that he had taken his last photograph at 9.15 p.m. and left the area just two to three minutes before the applicant’s apprehension took place. The District Court found it further established that the police orders had been clear and that they had manifestly applied to everyone in the crowd, which consisted of demonstrators as well as bystanders and other members of the public. Moreover, the District Court examined the justification of the interference of the applicant’s right under Article 10 of the Convention in the following manner. “... It is disputed whether Mr Pentikäinen had, as a journalist and on the basis of his freedom of expression, the right not to obey the orders given to him by the police. He had intended to use his freedom of expression as a photographer. The police orders to disperse therefore restricted his freedom of expression. The question is whether there was a justification for this restriction. Pursuant to Article 12 of the Constitution and Article 10 of the European Convention on Human Rights, everyone has the right to freedom of expression. It includes a right to publish and distribute information without interference by the authorities. Pursuant to the Constitution, more detailed provisions on the exercise of freedom of expression are laid down by an Act. In accordance with Article 10 § 2 of the European Convention on Human Rights, the exercise of freedom of expression may be subject to formalities, conditions, restrictions or penalties which are prescribed by law. Pursuant to the said Article and the case-law of the European Court of Human Rights, three requirements must be taken into account when assessing the restrictions: (1) the restriction must be prescribed by law; (2) it must have an acceptable reason; and (3) it must be necessary in a democratic society. First of all, the District Court notes that the police have the power, in accordance with sections 18 and 19 of the Police Act, to cordon off an area and to disperse a crowd. On the strength of this power, the police gave an order to disperse to the persons remaining in the Kiasma-Postitalo area, which order Mr Pentikäinen also refused to follow. The restriction was thus prescribed by law. Secondly, the District Court considers that the powers stipulated in sections 18 and 19 of the Police Act relate to the maintenance of public order and security and to the prevention of disorder or crime, and that in this case the order to disperse given to, among others, Mr Pentikäinen relates to the prevention of disorder. The restriction therefore has an acceptable reason. Thirdly, it must be examined whether the order to disperse given to Mr Pentikäinen and the obligation to follow it was necessary in a democratic society. The District Court finds that it was necessary to put an end to the situation in the Kiasma area by ordering the crowd to disperse and by asking the persons to leave the area. The District Court concludes that, in the case at hand, the conditions for restricting Mr Pentikäinen’s freedom of expression by ordering him to disperse along with the remaining crowd were fulfilled. The District Court has taken a stand on the elements having an effect on the punishability of Mr Pentikäinen’s act below. The case referred to by Mr Pentikäinen ( Dammann v. Switzerland, [no. 77551/01,] 25 April 2006) concerned a situation in which a journalist had been convicted in Switzerland of incitement to breach official secrecy because he had asked for and received information from an administrative assistant in the public prosecutor’s office about some registry entries. The [European] Court found that the applicant’s conviction could prevent journalists from participating in public discussions on questions of general interest. The conviction was not proportionate to the aims sought and Article 10 of the Convention had thus been violated. The District Court finds that the cited case is not similar to the case at hand. ...” However, relying on Chapter 6, section 12, of the Penal Code, no penalty was imposed on the applicant as the offence was comparable to “an excusable act” ( anteeksiannettavaan tekoon rinnastettava, jämförbar med en ursäktlig gärning ). The District Court found: “... The punishment of Mr Pentikäinen is waived in accordance with Chapter 6, section 12(3), of the Penal Code because the offence, due to special reasons related to the act, can be deemed comparable to an excusable act. As a journalist, Mr Pentikäinen was forced to adapt his behaviour towards the situation due to the conflicting expectations expressed by the police, on the one hand, and by his profession and employer, on the other hand. ...” 38. By a letter dated 23 January 2008, the applicant appealed to the Helsinki Court of Appeal ( hovioikeus, hovrätten ), claiming that the District Court should have dismissed the charges against him. He argued that his apprehension and the fact that he was found guilty were contrary to the Constitution and Article 10 of the Convention. The applicant was a journalist and he had not participated in the demonstration or caused any disorder. The District Court had not given reasons as to why his apprehension and conviction were “necessary in a democratic society” and had thereby failed to justify the interference. 39. On 30 April 2009 the Court of Appeal dismissed the applicant’s appeal without giving any further reasons. 40. By a letter dated 24 June 2009, the applicant further appealed to the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds of appeal already presented before the Court of Appeal. 41. On 1 September 2009 the Supreme Court refused the applicant leave to appeal. III. INTERNATIONAL AND EUROPEAN STANDARDS 54. In the information available to the Court concerning international and European standards, specific references to the conduct of journalists during demonstrations were scarce. However, some regulations or recommendations existed regulating the conduct of the police towards journalists covering demonstrations or similar events while also imposing a duty on journalists to refrain from hampering the police in maintaining public order and safety. 55. For instance, the Guidelines drawn up by the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Co-operation and Security in Europe ( OSCE) and the European Commission for Democracy through Law (Venice Commission) [1] provide as follows. “168. If dispersal is deemed necessary, the assembly organiser and participants should be clearly and audibly informed prior to any intervention by law -enforcement personnel. Participants should also be given reasonable time to disperse voluntarily. Only if participants then fail to disperse may law enforcement officials intervene further. Third parties (such as monitors, journalists, and photographers) may also be asked to disperse, but they should not be prevented from observing and recording the policing operation ... 169. Photography and video recording (by both law enforcement personnel and participants) should not be restricted, but data retention may breach the right to private life: During public assemblies the photographing or video recording of participants by the law enforcement personnel is permissible. However, while monitoring individuals in a public place for identification purposes does not necessarily give rise to an interference with their right to private life, the recording of such data and the systematic processing or permanent nature of the record kept may give rise to violations of privacy. Moreover, photographing or videoing assemblies for the purpose of gathering intelligence can discourage individuals from enjoying the freedom [to assemble] and should therefore not be done routinely. Photographing or video recording the policing operation by participants and other third parties should not be prevented, and any requirement to surrender film or digitally recorded images or footage to the law enforcement agencies should be subject to prior judicial scrutiny. Law enforcement agencies should develop and publish a policy relating to their use of overt filming/photography at public assemblies.” 56. The European and international regulations, standards, recommendations or public announcements concerning the conduct of journalists are predominantly silent as to the coverage of demonstrations or similar events. The same holds true for the self-regulating codes of conduct or professional ethics of journalists. | This case concerned the apprehension of the applicant, a media photographer, during a demonstration and his subsequent detention and conviction for disobeying the police. The applicant complained that his right to freedom of expression had been violated by his apprehension, detention and conviction, as he had been prevented from doing his job as a journalist. |
64 | Disappearance of new-born baby in hospital care | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1953 and lives in Batočina. 6. The facts of the case, as submitted by the parties, may be summarised as follows. A. The specific facts of the applicant’s case 7. On 28 October 1983 the applicant gave birth to a healthy baby boy in the Ćuprija Medical Centre (“the ĆMC”), a State-run hospital. 8. Between 28 and 30 October 1983, while still in the ĆMC, the applicant had regular contact with her son. 9. On 30 October 1983 the applicant was informed by the doctors that both she and her son would be discharged the next day. 10. The applicant was with her son until approximately 11 p.m. on 30 October, when he was taken to a separate room for newborn babies. This was standard procedure and the applicant’s son had experienced no medical problems up to that point. 11. On 31 October 1983, at around 6.30 a.m., the duty doctor informed the applicant that “her baby ha[d] died”. Upon hearing this, the applicant immediately ran down the corridor towards the room where her son had spent the night. She was physically restrained by two orderlies, however. A nurse even tried to inject her with a sedative, but the applicant successfully resisted the attempt. Ultimately, having no other option and being in a state of shock, the applicant checked out of the ĆMC. Her relatives were subsequently told that the autopsy of the infant would be performed in Belgrade, which was why his body could not yet be released to the parents. The applicant and her family remained confused as to why the autopsy would have to be carried out in Belgrade, as this was clearly a departure from the ĆMC’s normal practice. 12. From 2001, and particularly from 2002, the Serbian media started reporting extensively on numerous cases similar to the applicant’s (see, for example, http://www.kradjabeba.org, accessed on 29 January 2013). 13. On 24 October 2002 the applicant sent a request to the ĆMC, seeking all relevant documentation relating to her son’s death. 14. On 12 November 2002 the applicant was informed by the ĆMC that her son had died on 31 October 1983, at 7.15 a.m., and that his death had occurred from an unknown cause. The ĆMC maintained that no other information was available because its archives had been flooded in the meantime and many documents had been destroyed. 15. On 22 November 2002, in response to the applicant’s request, the Municipality of Ćuprija informed her that her son’s birth had been registered in the municipal records but that his death had not. 16. On 10 January 2003 the applicant’s husband (the child’s father) lodged a criminal complaint with the Ćuprija municipal public prosecutor’s office against the medical staff of the ĆMC, whom the applicant deemed responsible for “her son’s abduction”. 17. On 15 October 2003 the Ćuprija municipal public prosecutor’s office rejected the complaint as unsubstantiated, since “there was evidence that [the applicant’s] son had died on 31 October 1983”. No further reasoning was offered and there was no indication as to whether any preliminary investigation had been carried out. 18. In March 2004 the Municipality of Ćuprija reaffirmed the content of its letter of 22 November 2002. 19. On 29 April 2004 the ĆMC provided the applicant with its internal records in support of its letter dated 12 November 2002. 20. On 19 September 2007 the Municipality of Ćuprija confirmed that the death of the applicant’s son had never been formally registered. 21. On 28 December 2007 the Municipality of Ćuprija provided the applicant with copies of her son’s birth certificate, in response to her earlier demand, together with the ĆMC’s request for registration of the birth. 22. The body of the applicant’s son was never released to the applicant or her family. Nor were they ever provided with an autopsy report or informed as to when and where he was allegedly buried. 23. Between 12 June 2009 and 20 July 2011 the Kragujevac Clinical Centre regularly treated the applicant for, inter alia, various depression-related symptoms dating back to 1999 and especially 2001. B. Other relevant facts 1. The adoption of new procedures 24. At a meeting organised by the Ministry of Health on 17 June 2003 on the burial of newborn babies who had died in hospital it was decided, inter alia, that the bodies could only be released to the parents if the latter signed a special form designed for this purpose. 25. In response to a specific request sent to them by the State-run funeral company ( JKP Pogrebne usluge ) on 17 October 2003, all Belgrade-based public health-care institutions also agreed, inter alia, to implement a procedure whereby a special declaration would have to be signed (a) by the parents, or other family members, stating that they had been informed of the death by the hospital and that they would personally be making the funeral arrangements, or (b) by a legal entity, or its representative, to the effect that it would be making these arrangements because others had refused or were unable to do so. In the absence of such declarations, the State-run funeral company would refuse to collect the bodies from the hospitals. 2. The parliamentary report of 14 July 2006 (Izveštaj o radu anketnog odbora obrazovanog radi utvrđivanja istine o novorođenoj deci nestaloj iz porodilišta u više gradova Srbije) 26. In 2005 hundreds of parents in the same situation as that of the applicant, namely, whose newborn babies had “gone missing” following their alleged deaths in hospital wards, especially in the 1970s, 1980s and 1990s, applied to the Serbian Parliament seeking redress. 27. On 14 July 2006 Parliament formally adopted a report prepared by the Investigating Committee established for this purpose. The findings of this report concluded, inter alia, that (a) there had been serious shortcomings in the applicable legislation at the relevant time and in the procedures before various State bodies and health authorities; (b) the situation justified the parents’ doubts or concerns as to what had really happened to their children; (c) no criminal redress could now be effective in view of the applicable limitation periods (see paragraph 34 below); and (d) a concerted effort on the part of all government bodies, as well as changes to the relevant legislation, were therefore necessary in order to provide the parents with adequate redress. 3. Statements made by the President of the Parliament 28. On 16 April 2010 the local media reported that the President of the Serbian Parliament had stated that a parliamentary working group was about to be formed in order to prepare new legislation aimed at providing redress to the parents of the “missing babies”. 4. The Ombudsman’s report of 29 July 2010 (Izveštaj zaštitnika građana o slučajevima tzv. “nestalih beba” sa preporukama) 29. Following an extensive investigation into the issue, the Ombudsman found, inter alia, that (a) at the relevant time, there were no coherent procedures and/or statutory regulations as to what should happen in situations where a newborn baby died in hospital; (b) the prevailing medical opinion was that parents should be spared the mental pain of having to bury their newborn babies, which was why it was quite possible that certain couples were deliberately deprived of the opportunity to do so; (c) any autopsy reports were usually incomplete, inconclusive, and of highly dubious veracity; (d) it could not therefore be ruled out that the babies in question were indeed removed from their families unlawfully; (e) turning to more recent times, the government response between 2006 and 2010 had itself been inadequate; and (f) the parents therefore remained entitled to know the truth about the real fate of their children, which could only be arrived at through the enactment of a lex specialis. 5. The working group’s report submitted to Parliament on 28 December 2010 (Izveštaj o radu radne grupe za izradu predloga zakona radi stvaranja formalno-pravnih uslova za postupanje nadležnih organa po prijavama o nestanku novorođene dece iz porodilišta) 30. In response to the findings and recommendations of the Parliamentary Report of 14 July 2006 (see paragraphs 26-27 above), a working group was set up by Parliament on 5 May 2010 (see paragraph 28 above). Its task was to assess the situation and propose any appropriate changes to the legislation. 31. On 28 December 2010 the working group submitted its report to Parliament. Following a detailed analysis of the current, already amended, legislation, it concluded that no changes were necessary except as regards the collection and use of medical data, but that a new piece of legislation concerning this issue was already being prepared ( nacrt Zakona o evidencijama u oblasti zdravstva ). The working group specifically noted, inter alia, that Article 34 of the Constitution made it impossible to extend the limitation period for criminal prosecution in respect of crimes committed in the past or, indeed, to introduce new, more serious, criminal offences and/or harsher penalties applicable to crimes committed in the past (see paragraph 32 below). The existing Criminal Code already envisaged several criminal offences of relevance to the issue, however, and the new Health Care Act set out a detailed procedure making it impossible for parents to have their newborn babies unlawfully removed from hospital wards (see paragraphs 35 and 41 below). | This case concerned the alleged death of the applicant’s healthy new-born son in 1983 in a State-run hospital. She had never been allowed to see his body and suspected that her son may even still be alive, having unlawfully been given up for adoption. |
989 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1972 and lives in Baku. 6. The facts of the case are similar to a large extent to those in the cases of Rasul Jafarov v. Azerbaijan (no. 69981/14, 17 March 2016), Mammadli v. Azerbaijan ( no. 47145/14, 19 April 2018), and Aliyev v. Azerbaijan (nos. 68762/14 and 71200/14, 20 September 2018) in that the applicant in the present case was arrested on the basis of similar criminal charges. 7. The applicant is a co-founder and member of the Board of Directors of the Republican Alternative Civic Movement (REAL). He is a political activist and is known for his critical articles published on Facebook concerning economic and social problems in the country. 8. On 22 April 2014 the Prosecutor General ’ s Office instituted criminal proceedings under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of non-governmental organisations. The applicant was questioned as a witness in connection with those proceedings on several occasions. 9. In the context of those proceedings another member of the REAL Board, Mr Rasul Jafarov, was arrested on charges of illegal entrepreneurship, tax evasion and abuse of power (for further details, see Rasul Jafarov, cited above). 10. On 18 July 2016 the President of the Republic of Azerbaijan presented a draft Referendum Act, containing twenty-nine amendments to the country ’ s Constitution. The proposed amendments were intended, in particular, to increase the presidential term of office from five years to seven, to introduce the position of Vice-Presidents and to give powers to the President to order early presidential elections and to dissolve Parliament. 11. On 26 July 2016 the Government announced that the referendum would be held on 26 September 2016 and that voters would be asked to vote separately on each of the twenty-nine constitutional amendments. 12. Following that announcement REAL decided to campaign against the amendments to the Constitution and started the process of collecting signatures in order to register a campaign group with the Central Election Commission (CEC). The applicant and Mr T.I. were appointed by REAL as its authorised representatives before the CEC for the purposes of collecting the required signatures and organising the campaign. 13. On 12 August 2016 the applicant was arrested and charged under Articles 192.1 (illegal entrepreneurship) and 308.2 (aggravated abuse of power) of the Criminal Code. The description of the charges was to a large extent similar to that used in the case of Rasul Jafarov (cited above, § 16), Mammadli (cited above, § 14) and Aliyev (cited above, § 21). The applicant was accused of committing those crimes by failing to register with the relevant executive authority the grants received from the United States of America ’ s National Endowment for Democracy (NED) under various projects during the period between 2011 and 2014, placing the sums received under the relevant grant agreements in various bank accounts and making payments to himself and other people involved in the projects in the guise of salaries and service fees. 14. On the same date the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor ’ s request for application of the preventive measure of remand in custody, ordered the applicant ’ s detention for a period of four months. The court justified the application of the preventive measure of remand in custody by reference to the gravity of the charges and the likelihood that if released the applicant might abscond and obstruct the investigation. 15. Meanwhile, on 15 August 2016, Mr T.I. and another member of REAL were arrested and sentenced to seven days ’ administrative detention under Article 310 (failure to comply with a lawful order of a police officer) of the Code of Administrative Offences. 16. On 15 August 2016 the applicant appealed against the decision of 12 August 2016, claiming that his detention was unlawful. He stated, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for application of the preventive measure of remand in custody. The applicant further complained, relying on Article 18 of the Convention, that the charges brought against him were politically motivated and that the real purpose of his detention was to silence him. 17. On 17 August 2016 the Baku Court of Appeal dismissed the applicant ’ s appeal and found the first-instance court ’ s decision to be lawful. According to the applicant, during the court hearing he was confined in a metal cage in the courtroom. In support of his allegation he provided a photograph of his confinement. 18. On the same date the Spokesperson for the EU High Representative for Foreign Affairs and Security Policy issued the following statement: “The arrest of [the applicant], the Executive Secretary of the REAL party in Azerbaijan, comes just six weeks ahead of the referendum on constitutional amendments that his party opposes and campaigns against. His arrest and placement into pre-trial detention of four months come on top of worrying reports of additional arrests of people involved in campaigning.” 19. On 18 August 2016 a number of international non-governmental organisations published a joint statement, the relevant parts of which read as follows: Azerbaijan: Renewed Human Rights Crackdown Ahead of Referendum JOINT STATEMENT “ Less than six weeks ahead of a constitutional referendum, the Azerbaijani authorities have unleashed a new wave of repression to silence critical voices ... On 12 August, prominent Azerbaijani economist and Executive Secretary of the opposition Republican Alternative (REAL) movement [the applicant] was arrested on charges of illegal entrepreneurship and abuse of power, and sentenced to four months of pre-trial detention ... On 13 August, NIDA civic movement activist [E.G.] was arrested, held incommunicado over the weekend, charged on 15 August with drug possession, and sentenced to four months ’ pre-trial detention. Also on 15 August, REAL movement youth activists [T.I.] and [ E.Gas .] were arrested and sentenced to seven days of administrative detention each on charges of resisting police. Authorities also harassed civic activist and former political prisoner [B. H.], calling him in for questioning and then subjecting him to a court hearing that dragged out over three days, before fining him 100 AZN on charges of ‘ minor hooliganism ’ ...” 20. On 22 August 2016 the representatives of REAL announced during a press conference that they had decided not to participate in the referendum campaign and to stop collecting the required signatures because of political pressure and, in particular, owing to the arrests of some REAL members, including the applicant, who had been actively involved in the preparation of the referendum campaign on behalf of REAL. 21. On 3 September 2016 the referendum campaign was officially launched. 22. On 4 September 2016 the applicant applied to the Nasimi District Court, requesting the substitution of remand with either house arrest or release on bail. 23. On 6 September 2016 the Nasimi District Court dismissed his application. 24. On 9 September 2016 the applicant lodged an appeal against that decision. 25. On the same date the prosecutor in charge of the case applied to the Nasimi District Court and requested it to annul the preventive measure of remand in custody, as the grounds justifying the applicant ’ s pre-trial detention no longer existed. On the same day the Nasimi District Court granted the prosecutor ’ s request and ordered the applicant ’ s immediate release. The applicant withdrew his appeal against the decision of 6 September 2016. 26. On 26 September 2016 the constitutional referendum took place as planned. According to the official final results, all twenty-nine constitutional amendments were approved by between 83% and 91% of voters. 27. On 17 August 2017 the prosecuting authorities decided to terminate the criminal proceedings against the applicant. | This case concerned the arrest and pre-trial detention of an opposition activist. The applicant submitted in particular that there was no reasonable suspicion that he had committed a criminal offence and that the courts had failed to carry out an effective review of his detention. He also alleged that his arrest and pre-trial detention had in fact been aimed at silencing him and punishing him for his activities in the Republican Alternative Civic Movement (REAL) and its campaign against amendments to the Constitution proposed by a draft Referendum. |
321 | Prohibition of slavery and forced labour (Article 4) | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1985, 1959, 1958 and 1977 respectively and live in the village of Novo Selo in the Vidin region (Bulgaria). The applicants are of Roma ethnic origin. At the time of the events (May-June 2003), the first applicant was still a minor. The second and third applicants are her father and mother, and the fourth applicant is the first applicant’s sister ‑ in ‑ law. A. The applicants’ version of the events 7. The facts of the case, as submitted by the applicants, may be summarised as follows. 8. The first, second and third applicants arrived in Milan on 12 May 2003 following a promise of work by X., a Roma man of Serbian nationality, residing in Italy, who accommodated them in a villa in the village of Ghislarengo, in the province of Vercelli, where he lived with his family. The third and the first applicants provided different versions on this point to the Italian authorities. In her declarations to the Italian police, on 24 May 2003, the third applicant maintained that she, her husband and her daughter, who lived in Bulgaria in a condition of extreme precariousness, moved to Italy in search of work; when they arrived in Milan they approached an individual who spoke their language, X., who proposed to them to work as domestic employees to take care of his big house. The first applicant, in her declarations to the public prosecutor on 11 June 2003, maintained that she had met X. in “Yugoslavia”, where she was with her mother in search of a job, and from there X. had driven them to Italy in his car after proposing a job. They remained in the villa for several days, during which time they undertook household chores. After a while, X. declared to the second applicant that Y., his nephew, wanted to marry his daughter (the first applicant). As the second and third applicants refused, X. threatened them with a loaded gun. Then the second and third applicants were beaten, threatened with death and forced to leave the first applicant in Italy and go back to Bulgaria. Although the applicants denied this, it seems from their initial submissions that the second and third applicants had been offered money to leave their daughter behind. On 18 May 2003, the second and third applicants went back to Bulgaria. On their return the second applicant was diagnosed with type 2 diabetes, which he alleged was a consequence of the stress endured. 9. The applicants submitted that during the month (following 18 May 2003) spent at the villa in Ghislarengo, the first applicant was kept under constant surveillance and was forced to steal against her will, was beaten, threatened with death and repeatedly raped by Y. while tied to a bed. During one of the robberies in which the first applicant was forced to participate, she had an accident and had to be treated in hospital. However, the Serbian family refused to leave her there to undergo treatment. The applicants submitted that they were not aware of the name and location of this hospital. 10. On 24 May 2003 the third applicant returned to Italy, accompanied by the first applicant’s sister ‑ in ‑ law (the fourth applicant), and lodged a complaint with the Italian police in Turin, reporting that she and her husband had been beaten and threatened and that the first applicant had been kidnapped. She further feared that her daughter might be led into prostitution. They were settled in a monastery near Turin. Subsequently, the police accompanied them with an interpreter to identify the house in Ghislarengo. 11. Apparently frustrated with the police’s slowness in responding to the complaint, the second applicant lodged written complaints with many other institutions. A letter of 31 May 2003, addressed to the Italian Prime Minister, the Italian Ministers for Foreign and Internal Affairs, the Italian Ambassador in Bulgaria, the Prefect of Turin, the Bulgarian Prime Minister, the Bulgarian Minister for Foreign Affairs and the Bulgarian Ambassador to Italy, is included in the file. 12. It has been shown that, eighteen days after the lodging of the complaint, on 11 June 2003, the police raided the house in Ghislarengo, found the first applicant there and made a number of arrests. At about 2 p.m. that day, she was taken to a police station in Vercelli and questioned, in the presence of an interpreter, by two female and two male police officers. The applicants alleged that she was treated roughly and threatened that she would be accused of perjury and libel if she did not tell the truth. Allegedly she was then forced to declare that she did not wish her supposed kidnappers to be prosecuted, to answer “yes” to all other questions, and to sign certain documents in Italian, which she did not understand and which were neither translated into Bulgarian nor given to her. They also alleged that the interpreter did not do her job properly and remained silent in the face of the treatment being inflicted. The applicants further alleged that Y. was present during certain parts of the first applicant’s questioning. 13. Later that day, the third applicant was questioned by the police in Vercelli in the presence of an interpreter. The third applicant alleged that she was also threatened that she would be accused of perjury and libel if she did not tell the truth, and that the interpreter did not do her job properly. She claimed that, as she refused to sign the record, the police treated her badly. 14. At about 10 p.m. on the same day the first applicant was questioned again. The applicants alleged that no interpreter or lawyer was present and that the first applicant was unaware of what was recorded. The first applicant was then taken to a cell and left there for four or five hours. On 12 June 2003 at about 4 a.m., she was transferred to a shelter for homeless persons, where she remained until 12.30 p.m. 15. On the same day, upon their request, the first, third and fourth applicants were taken by the police to the railway station in Vercelli and travelled back to Bulgaria. They submitted to the Court that the facts were then investigated by the Italian authorities, but that no criminal proceedings were instituted in Italy against the first applicant’s kidnappers, or at least that they were not informed, nor were they able to obtain information about any ongoing criminal investigation. They also complained that the Italian authorities did not seek to question the second applicant in order to establish the facts, by means of cooperation with the Bulgarian authorities. 16. It appears from the file that, after June 2003, the applicants sent several letters and e-mails, most of which were in Bulgarian, to the Italian authorities (such as the Italian Prime Minister, the Italian Ministers for Justice and Internal Affairs, the General Prosecutor attached to the Court of Appeal of Turin, the mayor of Ghislarengo and the Italian diplomatic authorities in Bulgaria), with a request to provide them with information about the police raid of 11 June 2003 and to start criminal proceedings against the first applicant’s alleged kidnappers. They also complained that they had suffered threats, humiliation and ill-treatment at the hands of the police. They asked those authorities to forward their complaints to the Public Prosecutor in Vercelli and to the police department of the same town. 17. At the same time, the applicants also wrote to the Prime Minister of Bulgaria, the Head of the Consular Relations Division of the Bulgarian Ministry of Foreign Affairs (CRD) and the Bulgarian Consulate in Rome, requesting them to protect their rights and assist them in obtaining information from the Italian authorities. The Bulgarian Consulate in Rome provided the applicants with certain information. 18. The applicants did not provide the Court with any document regarding their questioning and the subsequent criminal proceedings against them (see below). Their representative claimed that, considering the circumstances, including the alleged refusal of the Italian Embassy in Bulgaria, it was impossible to submit any document. Apart from copies of the letters sent to the Italian institutions, they only submitted two medical reports, one dated 22 June 2003 establishing that the first applicant was suffering from post-traumatic stress disorder and one dated 24 June 2003 establishing that the first applicant had a bruise on the head, a small wound on the right elbow and a broken rib. It further stated that she had lost her virginity and was suffering from a vaginal infection. The medical report concluded that these injuries could have been inflicted in the way the first applicant had reported. B. The Italian Government’s version of the events 19. On 21 April 2009 and 30 July 2009, at the Court’s request, the Italian Government submitted a number of documents, among which the transcript of the first complaint lodged by the third applicant on 24 May 2003 with the Turin police, and the minutes of the interviews with the first applicant, the third applicant and some of the alleged kidnappers, which took place on 11 June 2003. 20. It appears from these documents that the transcript of the third applicant’s first complaint against the alleged kidnappers (lodged with the Italian police in Turin on 24 May 2003), as well as the applicants’ complaints sent by their representative to different Italian institutions, in the following days, were transmitted to the Italian police in Vercelli (on 26 May and 6 June 2003 respectively) and to the Public Prosecutor of the same town (on 4 and 13 June 2003 respectively). 21. More specifically, on 26 May 2003 the Turin Mobile Squad requested help from the Vercelli Mobile Squad to identify the location where the first applicant was allegedly being held. On 27 May 2003 the Vercelli Mobile Squad went to Ghislarengo to identify the location together with the third applicant. They inspected the location and the third applicant identified the villa she had mentioned in her complaint. On 4 June 2003 the Vercelli Police Headquarters transmitted the crime report ( notizia di reato ) to the Vercelli Public Prosecutor’s Office. From the communal registry it appeared that no person resided in the identified villa, but that it was owned by an individual who had a criminal record. In consequence, the police kept the place under surveillance. The police raided the villa on 11 June 2003, after having observed movement inside. During the search the police seized a number of cameras containing photographs of what appeared to be a wedding. 22. On 7, 11, 12 and 13 June 2003, the Ministry of Internal Affairs was informed by fax of developments in the case. 23. On 11 June 2003 at about 2.30 p.m., immediately after the raid, the first applicant was questioned by the Public Prosecutor of Vercelli, who was assisted by the police. As also transpires from the documents, the first applicant made allegations that showed a number of discrepancies with the complaint previously submitted by her mother, and which led the authorities to conclude that no kidnapping, but rather an agreement about a marriage, had in reality taken place between the two families. This conclusion was confirmed by photographs given to the police by X. after the raid, showing a wedding party at which the second applicant received a sum of money from X. When showed the photographs, the first applicant denied that her father had taken money as part of the agreement about the marriage. 24. At 8.30 p.m. the third applicant was questioned by the Public Prosecutor in Vercelli. She stated again that her daughter had not married Y. of her own free will, and claimed that the photographs were nothing but a fake, taken on purpose by the alleged kidnappers, who had threatened them with a gun, in order to undermine the credibility of their version of the facts. The Vercelli police also questioned X., Z. (a third party present at the wedding) and Y., who all stated that Y. had entered into a consensual marriage with the first applicant. 25. As a result of these interviews and on the basis of the photographs, the Public Prosecutor of Vercelli decided to turn the proceedings against unknown persons for kidnapping (1735/03 RGNR) into proceedings against the first and third applicants for perjury and libel. Later that evening, the first and third applicants were informed by the Vercelli and Turin police about the charges and invited to appoint a representative. They were then provided with a court-appointed lawyer. At about 11.30 p.m. the first applicant was transferred to a shelter for homeless people. On 12 June 2003 she was released into the custody of her mother. The applicants’ complaints sent to many Italian institutions during the following months were received by the Police Department in Vercelli, translated into Italian and forwarded to the Ministry of Internal Affairs. 26. Following information requests, the first dated 6 November 2003 by the Embassy of Bulgaria in Rome, the Italian authorities updated the Consul about the status of the criminal proceedings (mentioned below) on 7 and 19 November 2003, and 2 December 2003. 1. The criminal proceedings against the first applicant 27. On 11 July 2003, the Public Prosecutor attached to the Juvenile Court of Piedmont and Valle d’Aosta started criminal proceedings (1838/03 RGNR) against the first applicant for false accusations ( calunnia ) in so far as she claimed that X., Y. and Z. deprived her of her personal liberty by keeping her in the villa, thus accusing them of kidnapping while knowing they were innocent. 28. On 28 November 2003 the first applicant was invited for questioning by the Public Prosecutor, but she was in Bulgaria and did not appear. 29. On 26 January 2005 the Investigating Magistrate of the Juvenile Court decided not to proceed with the charges in so far as the offences committed were one-off and not serious, and therefore “socially irrelevant”. 2. The criminal proceedings against the third applicant 30. On 26 June 2003 the Public Prosecutor of Turin started criminal proceedings (18501/03 RGNR) against the third applicant for perjury and false accusations ( calunnia ) in so far as she claimed that X., Y. and Z. deprived her daughter of her personal liberty by keeping her in the villa, thus accusing them of kidnapping while knowing they were innocent. 31. On 22 July 2003 the Public Prosecutor of Turin concluded the investigation against the third applicant and sent the case to the Turin Criminal Court. 32. On 8 February 2006 the Turin Criminal Court acquitted the third applicant, on the ground that the facts of which she was accused did not subsist. The actual evidence consisting of the notes verbal of the questioning of the accused and her daughter, the photographic evidence and the policemen’s statements, were indicative and could not establish without doubt the guilt of the accused. The accused and her daughter’s statements were contradictory and the photos did not certify the circumstances in which they were taken. According to the police statements it could only be deduced that the daughter had been found at the villa and the persons who could have clarified the facts had availed themselves of the right to remain silent. The understanding of the facts was further complicated by the Roma tradition of selling, or paying a sum of money previously established to the family of the bride for the purposes of concluding a marriage, a matter which in the case of a dispute could have created consequences which it had been impossible to establish. C. The Bulgarian Government’s version of the events 33. On the basis of the documents produced by the Italian Government, particularly the declarations made by X., Y. and Z., the Bulgarian Government considered the facts to be as follows. On 12 May 2003 the first three applicants arrived in Italy and were accommodated in the nomad camp in Arluno. It was there that X., Y. and Z. met them and that Y. chose the first applicant as his spouse. The first applicant agreed and therefore Z. and the second applicant bargained over the price of the bride. The second applicant initially demanded EUR 20,000, but eventually they agreed on the sum of EUR 11,000. Z. paid the second applicant EUR 500 in advance. After festivities the newlyweds retired to the trailer where they consummated the marriage and Y. confirmed that the first applicant had been a virgin. The two families then went to the nomad camp of Kudzhiono where they celebrated the marriage. At the end of the wedding X. paid the second applicant the remainder of the amount due, namely EUR 10,500, in the presence of both families and other witnesses, as proven by the photographs. After the festivities the bride’s parents were accompanied to the railway station and left for Bulgaria on 18 May 2003. 34. Once in Bulgaria it was only on 31 May 2003, thirteen days after their departure from Italy, that the second applicant complained to the CRD of Bulgaria. Following this first notification, the Bulgarian authorities took immediate action and on 2 June 2003 the claim was forwarded to the Bulgarian Embassy in Rome. Contact was made with the Italian authorities and a successful raid by the Italian police which freed the first applicant was carried out on 11 June 2003. 35. Subsequently, the first and third applicants were questioned by a prosecutor specialised in interaction with minors, in the presence of an interpreter. Following an investigation by the Italian authorities, criminal proceedings against the first and third applicants for perjury were initiated. The applicants did not inform the Bulgarian authorities of the latter proceedings. | The applicants, of Roma origin and Bulgarian nationality, complained that, having arrived in Italy to find work, their daughter was detained by private individuals at gunpoint, was forced to work and steal, and sexually abused at the hands of a Roma family in a village. They also claimed that the Italian authorities had failed to investigate the events adequately. |
1,015 | Cases concerning the international military operations in Iraq during the Second Gulf War | A. The circumstances of the case 1. The death of Mr Azhar Sabah Jaloud 2. The investigation 3. Domestic proceedings B. Weapons used in the incident 1. Diemaco C7A1 2. Kalashnikov AK-47 C. The Netherlands military presence in Iraq 1. General background 2. The letter to the Lower House of Parliament 3. Royal Military Constabulary presence in Iraq D. Instructions to Netherlands SFIR personnel 1. The aide-mémoire for SFIR commanders 2. The SFIR soldier ’ s card E. The Royal Military Constabulary F. The Military Chamber of the Arnhem Court of Appeal G. Relevant domestic law and procedure 1. The Constitution of the Kingdom of the Netherlands 2. The Criminal Code (Wetboek van Strafrecht) 3. The Military Criminal Code (Wetboek van Militair Strafrecht) 4. The Military Criminal Procedure Act (Wet Militaire Strafrechtspraak) 5. The Code of Criminal Procedure (Wetboek van Strafvordering) H. Relevant domestic case-law 1. The Eric O. case 2. The Mustafić and Nuhanović cases I. Other domestic documents 1. Evaluation report on the application of military criminal procedure in operations abroad 2. The report of the Van den Berg Committee 3. The final evaluation report J. Relevant international law 1. The Hague Regulations 2. The Fourth Geneva Convention 3. United Nations Security Council Resolutions 4. Case-law of the International Court of Justice 5. The International Law Commission ’ s Articles on State Responsibility K. Documents relevant to the occupation of Iraq 1. Coalition Provisional Authority Order no. 28 2. The MND (SE) (Multinational Division, South East) Memorandum of Understanding 3. The MND (C-S) (Multinational Division, Central-South) Memorandum of Understanding | This case concerned the investigation by the Netherlands authorities into the circumstances surrounding the death of an Iraqi civilian (the applicant’s son) who died of gunshot wounds in Iraq in April 2004 in an incident involving Netherlands Royal Army personnel. The applicant complained that the investigation into the shooting of his son had neither been sufficiently independent nor effective. |
823 | Right to vote (Article 3 of Protocol No. 1) | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1954 and lives in Rózsaszentmárton. 7. In 1991 the applicant was diagnosed with manic depression. On 27 May 2005 he was placed under partial guardianship. Although this measure was based on the Civil Code which deals with the pecuniary and certain personal relations of citizens (see paragraph 12 below), it nevertheless also attracted the application of Article 70(5) of the Constitution (see paragraph 11 below) to the applicant, excluding him from the right to vote. In the underlying court decision it was noted that he took care of himself adequately but sometimes wasted money in an irresponsible fashion and was occasionally aggressive. The applicant did not appeal against this decision. 8. On 13 February 2006 the applicant realised that he had been omitted from the electoral register drawn up in view of the upcoming legislative elections. His complaint to the Electoral Office was to no avail. 9. The applicant further complained to the Pest Central District Court. On 9 March 2006 this court dismissed his case. It observed that, under Article 70(5 ) of the Constitution, those under guardianship could not participate in elections. This decision was served on the applicant's representative on 25 April 2006. 10. In the meantime, legislative elections took place on 9 and 23 April 2006, in which the applicant could not participate. i. requests of social security, social and unemployment benefits and disposition over such benefits or over income deriving from employment ... exceeding the amount defined in paragraph (2) c) of section 14/B; ii. right of disposition concerning moveable and real property; iv. taking pecuniary decisions in relation to maintenance obligations; v. making legal statements in relation to residential leases (conclusion and termination of the contract); vi. inheritance matters; vii. legal statements concerning placement in an in-house social institution; viii. disposing of rights related to health services; ix. determination of place of residence. ” 13. Act no. C of 1997 on Election Procedure provides as follows: Registration of citizens of legal age without the right to vote Section 17 “(1) In order to establish the right to vote, the organs listed under points a)-c) keep informed the central agency, managing the register of citizens'personal data and addresses, of the changes occurring in the data, specified in paragraph (2), of ... citizens of legal age without the right to vote, as follows : a) the office of guardians ... on placement under guardianship limiting or excluding legal capacity, and on the termination of guardianship, ... (2) The communication described under paragraph (1) includes the citizen's: a) first and last name (for women, also maiden name ), b) personal identification number, c) the reason for exclusion from the exercise of voting rights, its beginning date and expected end date.” 14. The United Nations Convention on the Rights of Persons with Disabilities ( the “ CRPD”), which was ratified by Hungary on 2 0 July 2007, provides as follows: Article 1 - Purpose ... “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which, in interaction with various barriers, may hinder their full and effective participation in society on an equal basis with others.” Article 12 - Equal recognition before the law “ 1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law. 2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life. 3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity. 4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests. ... ” Article 29 - Participation in political and public life “ States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to: a. Ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by: i. Ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use; ii. Protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of government, facilitating the use of assistive and new technologies where appropriate; iii. Guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice; b. Promote actively an environment in which persons with disabilities can effectively and fully participate in the conduct of public affairs, without discrimination and on an equal basis with others, and encourage their participation in public affairs, including: i. Participation in non-governmental organizations and associations concerned with the public and political life of the country, and in the activities and administration of political parties; ii. Forming and joining organizations of persons with disabilities to represent persons with disabilities at international, national, regional and local levels. ” 15. The Council of Europe Recommendation R(99)4 of the Committee of Ministers to Member States on Principles Concerning the Legal Protection of Incapable Adults (adopted on 23 February 1999) (“ Recommendation R(99)4 ”) provides as follows: Principle 3 – Maximum preservation of capacity “ ... 2. In particular, a measure of protection should not automatically deprive the person concerned of the right to vote, or to make a will, or to consent or refuse consent to any intervention in the health field, or to make other decisions of a personal character at any time when his or her capacity permits him or her to do so.” 16. Opinion no. 190/2002 of the European Commission for Democracy through Law (Venice Commission) on the Code of Good Practice in Electoral Matters (“Opinion no. 190/2002”) provides as follows: I. 1. Universal suffrage – 1.1. Rule and exceptions d. Deprivation of the right to vote and to be elected: “ i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions: ii. it must be provided for by law; iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them; iv. The deprivation must be based on mental incapacity or a criminal conviction for a serious offence. v. Furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law. ” 17. The Council of Europe Recommendation R(2006)5 of the Committee of Ministers to Member States on the Council of Europe Action Plan to Promote the Rights and Full Participation of People with Disabilities in Society: Improving the Quality of Life of People with Disabilities in Europe 2006-2015 (adopted on 5 April 2006) (“Recommendation R(2006)5”) provides as follows: 3.1. Action line No.1: Participation in political and public life 3.1.3. Specific actions by member states “ ... iii. to ensure that no person with a disability is excluded from the right to vote or to stand for election on the basis of her/his disability; ... ” | Diagnosed with a psychiatric condition in 1991, the applicant was placed under partial guardianship in May 2005 on the basis of the civil code. In February 2006, he realised that he had been omitted from the electoral register drawn up in view of the upcoming legislative elections. His complaint to the electoral office was to no avail. He further complained to the district court, which in March 2006 dismissed his case, observing that under the Hungarian Constitution persons placed under guardianship did not have the right to vote. When legislative elections took place in April 2006, the applicant could not participate. He submitted in particular that his disenfranchisement, imposed on him because he was under partial guardianship for a psychiatric condition, constituted an unjustified deprivation of his right to vote, which was not susceptible to any remedy since it was prescribed by the Constitution. |
70 | Filiation | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1966 and lives in Jurdani. 5. On 25 February 2003 the applicant was divested of his legal capacity ( poslovna sposobnost ) by a decision of the Opatija Municipal Court ( Općinski sud u Opatiji ). The decision was based on a report by a psychiatrist, who established that the applicant suffered from organic personality disorder and antisocial personality disorder as a result of his long-term drug abuse. The psychiatrist recommended that the applicant be divested of his legal capacity for a period of at least five years in order to undergo psychiatric treatment. 6. On 2 April 2003 the Opatija Social Welfare Centre ( Centrar za socijalnu skrb Opatija ) appointed the applicant ’ s mother, Lj.I.G., as his guardian. 7. On 29 September 2006 the Opatija Social Welfare Centre appointed the applicant ’ s father, D.K., as his guardian since his mother had fallen ill. On an unspecified date the same centre appointed its employee J.L as the applicant ’ s guardian. 8. On 30 June 2007 K.S. gave birth to a daughter, K., and named the applicant as the child ’ s father. On 17 August 2007 the applicant, with the consent of the child ’ s mother, gave a statement at the Rijeka Birth Registry ( Matični ured Rijeka ) saying that he was the father of the child, and he was subsequently registered as such on the child ’ s birth certificate. On 14 September 2007 the applicant gave the same statement before the Rijeka Welfare Centre ( Centar za socijalnu skrb Rijeka ). 9. On 19 October 2007 the Rijeka Social Welfare Centre informed the Birth Registry that the applicant had been divested of his legal capacity. 10. The Rijeka Birth Registry instituted proceedings in the Primorsko-goranska County Office of State Administration ( Ured državne uprave u Primorsko-goranskoj županiji ) for the annulment of the registration of the applicant as K. ’ s father. On 29 October 2007 the County Office gave a decision ordering that an amendment be made to the child ’ s birth certificate annulling the previous note stating that the applicant was the father of the child, on the ground that as a person divested of his legal capacity he did not have the right to recognise K. as his child before the law. 11. This decision was not served on the applicant, since he had been divested of his legal capacity. It was served on his mother. 12. On 21 March 2010 the Opatija Welfare Centre brought a civil action in the Opatija Municipal Court against the applicant, K.S., and K., seeking that the Municipal Court establish that the applicant was K. ’ s father. The proceedings are still pending. | The applicant complained that he had been denied the right to be registered as the father of his biological child, born out of wedlock. As he suffered from personality disorders as a result of long-term drug abuse, he had been deprived of legal capacity on the recommendation of a psychiatrist. |
794 | Right to liberty and security (Article 5 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1956 in Ruse, where he lived until December 2002 and where his half-sister and his father’s second wife, his only close relatives, also live. On 20 December 1990 a panel of occupational physicians declared him unfit to work. The panel found that as a result of being diagnosed with schizophrenia in 1975, the applicant had a 90% degree of disablement but did not require assistance. He is in receipt of an invalidity pension on that account. A. The applicant’s placement under partial guardianship and placement in a social care home for people with mental disorders 10. On an unspecified date in 2000, at the request of the applicant’s two relatives, the Ruse regional prosecutor applied to the Ruse Regional Court ( Окръжен съд ) for a declaration of total legal incapacity in respect of the applicant. In a judgment of 20 November 2000, the court declared the applicant to be partially incapacitated on the grounds that he had been suffering from simple schizophrenia since 1975, and that his ability to manage his own affairs and interests and to realise the consequences of his own acts had been impaired. The court found that the applicant’s condition was not so serious as to warrant a declaration of total incapacity. It observed, in particular, that during the period from 1975 to 2000 he had been admitted to a psychiatric hospital on several occasions. The court took into account an expert medical report produced in the course of the proceedings and interviewed the applicant. Furthermore, according to certain other people it interviewed, the applicant had sold all his possessions, begged for a living, spent all his money on alcohol and became aggressive whenever he drank. 11. That judgment was upheld in a judgment of 12 April 2001 by the Veliko Tarnovo Court of Appeal ( Апелативен съд ) on an appeal by the applicant, and was subsequently transmitted to the Ruse Municipal Council on 7 June 2001 for the appointment of a guardian. 12. Since the applicant’s family members had refused to take on any guardianship responsibilities, on 23 May 2002 the Municipal Council appointed Ms R.P., a council officer, as the applicant’s guardian until 31 December 2002. 13. On 29 May 2002 R.P. asked the Ruse social services to place the applicant in a social care home for people with mental disorders. She appended to the application form a series of documents including a psychiatric diagnosis. Social services drew up a welfare report on the applicant, noting on 23 July 2002 that he was suffering from schizophrenia, that he lived alone in a small, run-down annexe to his half-sister’s house and that his half-sister and his father’s second wife had stated that they did not wish to act as his guardian. The requirements for placement in a social care home were therefore deemed to be fulfilled. 14. On 10 December 2002 a welfare-placement agreement was signed between R.P. and the social care home for adults with mental disorders near the village of Pastra in the municipality of Rila (“the Pastra social care home”), an institution under the responsibility of the Ministry of Labour and Social Policy. The applicant was not informed of the agreement. 15. Later that day, the applicant was taken by ambulance to the Pastra social care home, some 400 km from Ruse. Before the Court, he stated that he had not been told why he was being placed in the home or for how long; the Government did not dispute this. 16. On 14 December 2002, at the request of the Director of the Pastra social care home, the applicant was registered as having his home address in the municipality of Rila. The residence certificate stated that his address had been changed for the purpose of his “permanent supervision”. According to the most recent evidence submitted in February 2011, the applicant was still living in the home at that time. 17. On 9 September 2005 the applicant’s lawyer requested the Rila Municipal Council to appoint a guardian for her client. In a letter dated 16 September 2005, she was informed that the Municipal Council had decided on 2 February 2005 to appoint the Director of the Pastra social care home as the applicant’s guardian. B. The applicant’s stay in the Pastra social care home 1. Provisions of the placement agreement 18. The agreement signed between the guardian R.P. and the Pastra social care home on 10 December 2002 (see paragraph 14 above) did not mention the applicant’s name. It stated that the home was to provide food, clothing, medical services, heating and, obviously, accommodation, in return for payment of an amount determined by law. It appears that the applicant’s entire invalidity pension was transferred to the home to cover that amount. The agreement stipulated that 80% of the sum was to be used as payment for the services provided and the remaining 20% put aside for personal expenses. According to the information in the case file, the applicant’s invalidity pension, as updated in 2008, amounted to 130 Bulgarian levs (BGN – approximately 65 euros (EUR)). The agreement did not specify the duration of the provision of the services in question. 2. Description of the site 19. The Pastra social care home is located in an isolated area of the Rila mountains in south-west Bulgaria. It is accessible via a dirt track from the village of Pastra, the nearest locality 8 km away. 20. The home, built in the 1920s, comprises three buildings, where its residents, all male, are housed according to the state of their mental health. According to a report produced by the Social Assistance Agency in April 2009, there were seventy-three people living in the home, one was in hospital and two had absconded. Among the residents, twenty-three were entirely lacking legal capacity, two were partially lacking capacity and the others enjoyed full legal capacity. Each building has a yard surrounded by a high metal fence. The applicant was placed in block 3 of the home, reserved for residents with the least serious health problems, who were able to move around the premises and go alone to the nearest village with prior permission. 21. According to the applicant, the home was decaying, dirty and rarely heated in winter and, as a result, he and the other residents were obliged to sleep in their coats during winter. The applicant shared a room measuring 16 sq. m with four other residents and the beds were practically side by side. He had only a bedside table in which to store his clothes, but he preferred to keep them in his bed at night for fear that they might be stolen and replaced with old clothes. The home’s residents did not have their own items of clothing because clothes were not returned to the same people after being washed. 3. Diet and hygiene and sanitary conditions 22. The applicant asserted that the food provided at the home was insufficient and of poor quality. He had no say in the choice of meals and was not allowed to help prepare them. 23. Access to the bathroom, which was unhealthy and decrepit, was permitted once a week. The toilets in the courtyard, which were unhygienic and in a very poor state of repair, consisted of holes in the ground covered by dilapidated shelters. Each toilet was shared by at least eight people. Toiletries were available only sporadically. 4. Recent developments 24. In their memorial before the Grand Chamber, the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived, including the sanitary facilities. The home now had central heating. The diet was varied and regularly included fruit and vegetables as well as meat. Residents had access to television, books and games. The State provided them all with clothes. The applicant did not dispute these assertions. 5. Journeys undertaken by the applicant 25. The home’s management kept hold of the applicant’s identity papers, allowing him to leave the home only with special permission from the Director. He regularly went to the village of Pastra. It appears that during the visits he mainly provided domestic help to villagers or carried out tasks at the village restaurant. 26. Between 2002 and 2006 the applicant returned to Ruse three times on leave of absence. Each trip was authorised for a period of about ten days. The journey cost BGN 60 (approximately EUR 30), which was paid to the applicant by the home’s management. 27. The applicant returned to Pastra before the end of his authorised period of leave after his first two visits to Ruse. According to a statement made by the Director of the home to the public prosecutor’s office on an unspecified date, the applicant came back early because he was unable to manage his finances and had no accommodation. 28. The third period of leave was authorised from 15 to 25 September 2006. After the applicant failed to return on the scheduled date, the Director of the home wrote to the Ruse municipal police on 13 October 2006, asking them to search for the applicant and transfer him to Sofia, where employees of the home would be able to collect him and take him back to Pastra. On 19 October 2006 the Ruse police informed the Director that the applicant’s whereabouts had been discovered but that the police could not transfer him because he was not the subject of a wanted notice. He was driven back to the social care home on 31 October 2006, apparently by staff of the home. 6. Opportunities for cultural and recreational activities 29. The applicant had access to a television set, several books and a chessboard in a common room at the home until 3 p.m., after which the room was kept locked. The room was not heated in winter and the residents kept their coats, hats and gloves on when inside. No other social, cultural or sports activities were available. 7. Correspondence 30. The applicant submitted that the staff at the social care home had refused to supply him with envelopes for his correspondence and that, as he did not have access to his own money, he could not buy any either. The staff would ask him to give them any sheets of paper he wished to post so that they could put them in envelopes and send them off for him. 8. Medical treatment 31. It appears from a medical certificate of 15 June 2005 (see paragraph 37 below) that, following his placement in the home in 2002, the applicant was given anti-psychotic medication (carbamazepine (600 mg)) under the monthly supervision of a psychiatrist. 32. In addition, at the Grand Chamber hearing the applicant’s representatives stated that their client had been in stable remission since 2006 and had not undergone any psychiatric treatment in recent years. C. Assessment of the applicant’s social skills during his stay in Pastra and conclusions of the psychiatric report drawn up at his lawyer’s request 33. Once a year, the Director of the social care home and the home’s social worker drew up evaluation reports on the applicant’s behaviour and social skills. The reports indicated that the applicant was uncommunicative, preferred to stay on his own rather than join in group activities, refused to take his medication and had no close relatives to visit while on leave of absence. He was not on good terms with his half-sister and nobody was sure whether he had anywhere to live outside the social care home. The reports concluded that it was impossible for the applicant to reintegrate into society, and set the objective of ensuring that he acquired the necessary skills and knowledge for social resettlement and, in the long term, reintegration into his family. It appears that he was never offered any therapy to that end. 34. The case file indicates that in 2005 the applicant’s guardian asked the Municipal Council to grant a social allowance to facilitate his reintegration into the community. Further to that request, on 30 December 2005 the municipal social assistance department carried out a “social assessment” ( социална оценка ) of the applicant, which concluded that he was incapable of working, even in a sheltered environment, and had no need for training or retraining, and that in those circumstances he was entitled to a social allowance to cover the costs of his transport, subsistence and medication. On 7 February 2007 the municipal social assistance department granted the applicant a monthly allowance of BGN 16.50 (approximately EUR 8). On 3 February 2009 the allowance was increased to BGN 19.50 (approximately EUR 10). 35. In addition, at his lawyer’s request, the applicant was examined on 31 August 2006 by Dr V.S., a different psychiatrist from the one who regularly visited the social care home, and by a psychologist, Ms I.A. The report drawn up on that occasion concluded that the diagnosis of schizophrenia given on 15 June 2005 (see paragraph 37 below) was inaccurate in that the patient did not display all the symptoms of that condition. It stated that, although the applicant had suffered from the condition in the past, he had not shown any signs of aggression at the time of the examination but rather a suspicious attitude and a slight tendency towards “verbal aggression”; that he had not undergone any treatment for the condition between 2002 and 2006; and that his health had visibly stabilised. The report noted that no risk of deterioration of his mental health had been observed and stated that, in the opinion of the home’s Director, the applicant was capable of reintegrating into society. 36. According to the report, the applicant’s stay in the Pastra social care home was very damaging to his health and it was desirable that he should leave the home, otherwise he was at risk of developing “institutionalisation syndrome” the longer he stayed there. The report added that it would be more beneficial to his mental health and social development to allow him to integrate into community life with as few restrictions as possible, and that the only aspect to monitor was his tendency towards alcohol abuse, which had been apparent prior to 2002. In the view of the experts who had examined the applicant, the behaviour of an alcohol-dependent person could have similar characteristics to that of a person with schizophrenia; accordingly, vigilance was required in the applicant’s case and care should be taken not to confuse the two conditions. D. The applicant’s attempts to obtain release from partial guardianship 37. On 25 November 2004 the applicant, through his lawyer, asked the public prosecutor’s office to apply to the Regional Court to have his legal capacity restored. On 2 March 2005 the public prosecutor requested the Pastra social care home to send him a doctor’s opinion and other medical certificates concerning the applicant’s disorders in preparation for a possible application to the courts for restoration of his legal capacity. Further to that request, the applicant was admitted to a psychiatric hospital from 31 May to 15 June 2005 for a medical assessment. In a certificate issued on the latter date, the doctors attested that the applicant showed symptoms of schizophrenia. As his health had not deteriorated since he had been placed in the home in 2002, the regime to which he was subject there had remained unchanged. He had been on maintenance medication since 2002 under the monthly supervision of a psychiatrist. A psychological examination had revealed that he was agitated, tense and suspicious. His communication skills were poor and he was unaware of his illness. He had said that he wanted to leave the home at all costs. The doctors did not express an opinion either on his capacity for resettlement or on the need to keep him in the Pastra social care home. 38. On 10 August 2005 the regional prosecutor refused to bring an action for restoration of the applicant’s legal capacity on the grounds that, in the opinion of the doctors, the Director of the Pastra social care home and the home’s social worker, the applicant was unable to cope on his own, and that the home, where he could undergo medical treatment, was the most suitable place for him to live. The applicant’s lawyer challenged the refusal to bring the action, arguing that her client should have the opportunity to assess by himself whether or not, having regard to the living conditions at the home, it was in his interests to remain there. She pointed out that the enforced continuation of his stay in the home, on the pretext of providing him with treatment in his own interests, amounted in practice to a deprivation of liberty, a situation that was unacceptable. A person could not be placed in an institution without his or her consent. In accordance with the legislation in force, anyone under partial guardianship was free to choose his or her place of residence, with the guardian’s agreement. The choice of residence was therefore not a matter within the competence of the prosecution service. Despite those objections, the regional prosecutor’s refusal was upheld on 11 October 2005 by the appellate prosecutor, and subsequently on 29 November 2005 by the Chief Public Prosecutor’s Office at the Supreme Court of Cassation. 39. On 9 September 2005 the applicant, through his lawyer, asked the mayor of Rila to bring a court action for his release from partial guardianship. In a letter of 16 September 2005, the mayor of Rila refused his request, stating that there was no basis for such an action in view of the medical certificate of 15 June 2005, the opinions of the Director and the social worker, and the conclusions reached by the public prosecutor’s office. On 28 September 2005 the applicant’s lawyer applied to the Dupnitsa District Court for judicial review of the mayor’s decision, under Article 115 of the Family Code (“the FC”) (see paragraph 49 below). In a letter of 7 October 2005, the District Court stated that since the applicant was partially lacking legal capacity he was required to submit a valid form of authority certifying that his lawyer was representing him, and that it should be specified whether his guardian had intervened in the procedure. On an unspecified date the applicant’s lawyer submitted a copy of the form of authority signed by the applicant. She also requested that the guardian join the proceedings as an interested party or that an ad hoc representative be appointed. On 18 January 2006 the court held a hearing at which the representative of the mayor of Rila objected that the form of authority was invalid as it had not been countersigned by the guardian. The guardian, who was present at the hearing, stated that he was not opposed to the applicant’s application, but that the latter’s old-age pension was insufficient to meet his needs and that, accordingly, the Pastra social care home was the best place for him to live. 40. The Dupnitsa District Court gave judgment on 10 March 2006. As to the admissibility of the application for judicial review, it held that, although the applicant had instructed his lawyer to represent him, she was not entitled to act on his behalf since the guardian had not signed the form of authority. However, it held that the guardian’s endorsement of the application at the public hearing had validated all the procedural steps taken by the lawyer, and that the application was therefore admissible. As to the merits, the court dismissed the application, finding that the guardian had no legitimate interest in contesting the mayor’s refusal, given that he could apply independently and directly for the applicant to be released from partial guardianship. Since the judgment was not subject to appeal, it became final. 41. Lastly, the applicant asserted that he had made several oral requests to his guardian to apply for his release from partial guardianship and to allow him to leave the home. However, his requests had always been refused. I. State liability 62. The State and Municipalities Responsibility for Damage Act 1988 ( Закон за отговорността на държавата и общините за вреди – title amended in 2006) provides in section 2(1) that the State is liable for damage caused to private individuals as a result of a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis. 63. Section 1(1) of the same Act provides that the State and municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties. 64. In a number of decisions, various domestic courts have found this provision to be applicable to the damage suffered by prisoners as a result of poor conditions or inadequate medical treatment in prison and have, where appropriate, partly or fully upheld claims for compensation brought by the persons concerned (реш. от 26.01.2004 г. по гр. д. № 959/2003, ВКС, IV г. о. and реш. № 330 от 7.08.2007 г. по гр. д. № 92/2006, ВКС, IV г. о.). 65. There are no court decisions in which the above position has been found to apply to allegations of poor living conditions in social care homes. 66. Moreover, it appears from the domestic courts’ case-law that, under section 1(1) of the Act in question, anyone whose health has deteriorated because bodies under the authority of the Ministry of Health have failed in their duty to provide a regular supply of medication may hold the administrative authorities liable and receive compensation (реш. № 211 от 27.05.2008 г. по гр. д. № 6087/2007, ВКС, V г. о.). 67. Lastly, the State and its authorities are subject to the ordinary rules on tortious liability for other forms of damage resulting, for example, from the death of a person under guardianship while absconding from a social care home for adults with a mental deficiency, on the ground that the staff of the home had failed to discharge their duty of permanent supervision (реш. № 693 от 26.06.2009 г. по гр. д. № 8/2009, ВКС, III г. о.). J. Arrest by the police under the Ministry of the Interior Act 2006 68. Under this Act, the police are, inter alia, authorised to arrest anyone who, on account of severe mental disturbance and through his or her conduct, poses a threat to public order or puts his or her own life in manifest danger (section 63(1)-(3)). The person concerned may challenge the lawfulness of the arrest before a court, which must give an immediate ruling (section 63(4)). 69. Furthermore, the police’s responsibilities include searching for missing persons (section 139(3)). K. Information submitted by the applicant about searches for persons who have absconded from social care homes for adults with mental disorders 70. The Bulgarian Helsinki Committee conducted a survey of police stations regarding searches for people who had absconded from social care homes of this type. It appears from the survey that there is no uniform practice. Some police officers said that when they were asked by employees of a home to search for a missing person, they carried out the search and took the person to the police station, before informing the home. Other officers explained that they searched for the person but, not being empowered to perform an arrest, simply notified the staff of the home, who took the person back themselves. L. Statistics submitted by the applicant on judicial proceedings concerning deprivation of legal capacity 71. The Bulgarian Helsinki Committee obtained statistics from 8 regional courts on the outcome of proceedings for restoration of legal capacity between January 2002 and September 2009. During this period 677 persons were deprived of legal capacity. Proceedings to restore capacity were instituted in 36 cases: 10 of them ended with the lifting of the measure; total incapacitation was changed to partial incapacitation in 8 cases; the applications were rejected in 4 cases; the courts discontinued the proceedings in 7 cases; and the other cases are still pending. | In 2000, at the request of two of the applicant’s relatives, a court declared him to be partially lacking legal capacity on the ground that he was suffering from schizophrenia. In 2002 the applicant was placed under partial guardianship against his will and admitted to a social care home for people with mental disorders, near a village in a remote mountain location. Under Article 5 (right to liberty and security) of the Convention, the applicant alleged in particular that he had been deprived of his liberty unlawfully and arbitrarily as a result of his placement in an institution against his will and that it had been impossible under Bulgarian law to have the lawfulness of his deprivation of liberty examined or to seek compensation in court. |
725 | Access to court | 2. The individual applicants were born in 1963, 1962 and 1961 respectively and live in Wapenveld. The applicant foundation has its registered address in Wapenveld and is the owner of an estate situated at that address, where it runs a study centre. The applicants were represented by Mr R.S. Wertheim, a lawyer practising in Zwolle. 3. The Government were represented by their Agent, Ms B. Koopman, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The village of Wapenveld, where the individual applicants live and which also houses the application foundation’s estate, is part of the municipality of Heerde, which is located in the Province of Gelderland. 6. A motocross track, which is operated by a motocross association (“the association”), is located in Heerde, in close proximity to the applicants’ premises and land. Since 19 May 1987 the association has been operating under a permit granted by the Provincial Executive ( Gedeputeerde Staten ) of the Province of Gelderland which allows the motocross track to operate from 1 p.m. to 7 p.m. on Wednesdays and Saturdays and, from April to October, on a further two weekdays from 2 p.m. to 7 p.m. 7. The association and the applicants’ premises are (partially) located within the so-called Natura 2000 area (a Special Area of Conservation, designated under the EU Habitats Directive). The applicants claim that they can hear the motocross bikes from their premises and land. 8. On 27 September 2013, the association asked the Province of Gelderland to issue it with a new permit under the 1998 Nature Conservation Act ( Natuurbeschermingswet 1998) that would allow it to expand its activities, with a larger number of motocross bikes and extended opening hours. 9. On 4 December 2013, the Provincial Executive published a notice on its website to the effect that it intended to grant the requested permit and that the draft decision and the relevant documents could be viewed from 9 December 2013 until 20 January 2014 at the provincial government building and on its website. Interested parties ( belanghebbenden ) within the meaning of section 1:2(1) of the General Administrative Law Act ( Algemene wet bestuursrecht; see paragraph 17 below) were given an opportunity to submit their views on the draft decision, either in writing or orally, before 20 January 2014, and more information on that matter could be found at the end of the draft decision itself. The text of the draft decision mentioned that it would only be possible to appeal against the actual decision if the appellant had already submitted his or her views on the draft decision and he or she was an interested party. 10. No views having been received, the Provincial Executive issued the permit on 27 January 2014. It published notification of its decision on the provincial website, saying that the decision and the relevant documents could be viewed from 30 January until 13 March 2014 at the provincial government building and on the aforementioned website. Interested parties could appeal against the decision before 13 March 2014, and more information on that matter could be found at the end of the decision itself. The text of the decision also mentioned that Chapter 3.4 of the General Administrative Law Act (see paragraph 18 below) had been declared applicable to the association’s request for a new permit. 11. The applicants first became aware of the decision granting the new permit on 4 November 2014. On 12 November 2014 they appealed to the Administrative Jurisdiction Division of the Council of State ( Afdeling Bestuursrechtspraak van de Raad van State – “the Administrative Jurisdiction Division”) against the decision. They stated that it was unclear whether the notifications of the draft decision and the decision had ever actually been published. In addition, they submitted that the fact that they had lodged their appeal outside the legal time-limit and that they had not submitted any views on the draft decision was excusable because publishing the notification on a provincial government website could not be regarded as publishing in “some other suitable manner” as required by section 3:12(1) of the General Administrative Law Act (see paragraph 19 below). Citizens of the Netherlands could not be expected, or might not be able, to monitor all the websites of all local and regional administrative authorities. On those grounds, the applicants argued that their right of access to a court under Article 6 of the Convention had been breached. 12. In the appeal proceedings it was argued on behalf of the Provincial Executive that the notifications of both the draft decision and the decision had been published correctly. Two screenshots were submitted, taken from an archiving website which showed the notifications of the draft decision and the decision. The Provincial Executive also argued that the electronic publication of the notifications complied with the provisions of the General Administrative Law Act and the 2012 Gelderland Province Electronic Notification Ordinance ( Verordening elektronische bekendmaking Gelderland 2012, “the Electronic Notification Ordinance” – see paragraphs 23-25 below) which specifically provided for electronic publication. Given the accessibility of the Internet, moreover, the Provincial Executive was of the view that there had been no violation of Article 6 of the Convention. 13. The Administrative Jurisdiction Division decided on the appeal in a judgment of 7 September 2016 (ECLI:NL:RVS:2016:2421). In it, it referred to a previous judgment in which it had held that notification of a draft decision via the Internet could constitute a suitable manner of notification, but that the applicable provisions of the General Administrative Law Act required that notification of a draft decision also be given in at least one non-electronic manner, unless a statutory provision provided otherwise (see paragraph 22 below). The applicants’ argument that electronic notification was not a suitable manner of notification did not give the Administrative Jurisdiction Division cause to reconsider this case ‑ law. 14. Furthermore, it considered that its case-law was not at odds with Article 6 of the Convention. Referring to the Court’s case-law (see Ashingdane v. the United Kingdom, 28 May 1985, Series A no. 93), it stated that Article 6 did not entail an absolute right of access to a court and that States had a certain margin of appreciation when laying down regulations limiting access to a court, as long as such limitations did not impair the very essence of the right of access to a court, pursued a legitimate aim, and complied with the requirement of proportionality. The Administrative Jurisdiction Division acknowledged that the manner of notification of a decision could in certain circumstances restrict access to a court to an extent incompatible with Article 6; for example if notice of a decision was given in a completely inadequate manner and as a result an interested party was unable to apply to a court within the period allowed, or at all. The Administrative Jurisdiction Division held that such a situation did not arise when notification of a decision was given solely by electronic means, and it could therefore not be said that the essence of the right to a court was impaired. By allowing notification of a decision solely by electronic means, the legislator had attempted to facilitate easier and faster communication between citizens and the administrative authorities. The underlying thought behind this was that such electronic communication could significantly contribute to the objective of achieving a more accessible and better functioning administration, which was a legitimate aim. 15. The Administrative Jurisdiction Division found that the applicants’ argument offered no grounds for holding that the requirement of proportionality had not been complied with when notification of a decision was given solely by electronic means. It therefore perceived no cause to hold that the possibility of giving notification of decisions solely by electronic means was, as such, contrary to Article 6. 16. Lastly, the Administrative Jurisdiction Division noted that the Electronic Notification Ordinance (see paragraphs 12 above and 23-25 below) had entered into force before the impugned decision had been taken. There had therefore existed a statutory provision providing for notification of decisions solely by electronic means. For that reason it considered that it was in principle not unacceptable that notification of the decision had been published solely on the Gelderland provincial website. Moreover, the applicants had not made a plausible case for believing that the archiving website used by the Provincial Executive and other administrative authorities was unreliable or that it did not provide a proper overview of notifications that had previously been published on the provincial website. The Administrative Jurisdiction Division considered it sufficiently established that the notifications of both the draft decision and the decision had been published on the latter website. The applicants could therefore reasonably be considered to have been at fault for not having submitted any views on the draft decision and for having lodged their appeal too late. That appeal was accordingly inadmissible. | The applicants’ premises and land were located in close proximity to a motocross track. The Provincial Executive had published a notification of a draft decision and decision to extend the opening hours of the track on its website, which the applicants had not seen in time. The applicants had subsequently lodged an appeal against the decision, after the fixed time-limit for doing so had expired, which had been declared inadmissible. They complained that giving notice of the draft decision and the decision online only had impinged on their right of access to a court, as they had been unaware of both the draft decision and the decision. |
671 | Professionals | I. THE CIRCUMSTANCES OF THE CASE A. Introduction 5. The applicant was born in 1958 and lives in Oslo. She is a well-known lawyer who mainly deals with criminal and child custody cases. She is married to a businessman and was formerly a talk show host and active participant in public debate. 6. In August and September 2010 the applicant lodged two complaints with the Press Complaints Commission ( Pressens Faglige Utvalg ) against two publications owned and controlled by Mr Trygve Hegnar: the weekly and daily business newspapers Kapital and Finansavisen. Mr Hegnar also owned and controlled the internet portal Hegnar Online, which focused mainly on business and financial news. 7. All three publications had, from late summer 2010, published articles concerning the applicant’s role and relationship with a wealthy, elderly widow from whom she would inherit. The publications contained direct or indirect suggestions that the applicant had exploited her emotionally or financially. After the widow passed away in 2011, her relatives instituted proceedings against the applicant, challenging the validity of her will. The inheritance case, which the applicant won both at first and second instance (in 2012 and 2014 respectively), was covered extensively in the above publications. 8. The Hegnar Online website featured a forum – at a separate web address, but to which access was given via the online newspaper – where readers could start debates and submit comments. There was no editorial content in the forum; all content was user-generated. It was possible for users to comment anonymously and there was no requirement to register. More than 200,000 comments were posted every month and the debate forum was among the biggest of its kind in Norway. The forum was divided into many subforums, with topic headings such as “Shipping”, “IT”, “Finance”, “Property”, “Media” and “Theme of the day” ( “Dagens tema” ). 9. On 5 November 2010 a forum thread was started in the subforum “Theme of the day” under the heading “Mona Høiness – the case is growing, according to Kapital” ( “Mona Høiness – saken vokser, sier Kapital” ), where the original poster wrote only “What is the status?” ( “Hva er status? ”). The next comment, posted the same day, read “Sexy lady. What is the case about ???” ( “Sexy dame. Hva gjelder saken ???” ), to which another commenter responded “Money.” At 12.32 p.m. the following day another comment was made, in which the poster claimed to “know someone who knows someone” who had been “lucky to have shagged” the applicant ( “Sexy hun da! Kjenner en som kjenner en som knulla henne. Heldiggris” – hereinafter “comment 1”). The thread continued the same day with a commenter writing: “status quo” and “ab absurdo”. The following comment was made the next day: “I read about this case briefly several weeks ago. I now see that Kapital gives it the front page. The conflict relates to an apartment at Frogner + wealthy old lady with whom Høiness has developed a mother-daughter relationship over many years.” ( “Leste om denne saken såvidt, for flere uker siden. Ser nå at Kapital gir den forsiden. Striden gjelder en leilighet på Frogner + velstående eldre dame som Høiness har utviklet et mor/datter-forhold til over mange år.” ) The next comment read: “Is it Kapital’s Case [( “Saken til Kapital” )] which is growing?”, to which another commenter responded with the wordplay: “It is Hegnar’s thing [( “saken til Hegnar” )] which is growing.” This was followed by the comment “If you are looking for pretty ladies, look at the thread ‘Pride of the nation’”, to which another poster added: “And that about the Marilyn-revelation”. The next day, on 8 November 2010, a new comment was made: “With 100 million at stake it is clear that one would bend the ethical rules a little” ( “Med 100 mill i potten er det klart du tøyer de etiske reglene litt” ), before another poster asked: “Has she become pregnant, or is she only gaining weight?”, and yet another poster followed with the above wordplay: “Is Hegnar’s stake [( “staken til Hegnar” )] still growing?”. At 5.55 p.m. another commenter wrote: “If I were to s–– her, it would have to be blindfolded. The woman is dirt-ugly – looks like a wh––“ ( “Skulle jeg k–– henne måtte det bli med bind for øya. Synes dama er dritstygg – ser ut som en h––” – hereinafter “comment 2”). Thereafter a poster asked: “How old is she now?”, to which the last commenter responded: “She’s 83 by now [( “etter hvert” )]. Time flies!” All the comments were made anonymously and thus the number of possible different posters was unknown. According to a printout made at 7.26 p.m. on 8 November 2010, comment 1 had by then been read 176 times, while comment 2 had been read twelve times. 10. The same day, 8 November 2010, the applicant’s counsel wrote a letter to the Press Complaints Commission, in the course of the proceedings concerning one of the above-mentioned complaints in respect of the coverage of the inheritance case (see paragraph 7 above). The counsel stated, inter alia, that a new report had been published in Kapital and that the case had been chosen as the “Theme of the day” on Hegnar Online. In particular, Hegnar “allowed the posters to present serious and degrading sexual harassment” of the applicant. In the letter, it was expressly stated that this was not to be made part of the existing complaint against Kapital, so as not to further delay the handling of that complaint by the publisher. A copy of the printout of the forum thread in question was attached (see paragraph 9 above). 11. Mr Hegnar received a copy of the letter and in an email to the Press Complaints Commission on 9 November 2010 stated, inter alia, that Hegnar Online was a separate newspaper with its own editor, unrelated to Kapital. He submitted that it could not therefore be taken into account in a complaint against the latter. The Commission wrote an email to both parties the following day stating that it – having spoken with the applicant’s counsel – noted that the letter of 8 November 2010 did not amount to a new complaint, but was an appendix to the documents in the pending case against Kapital and did not relate to Hegnar Online. 12. Comments nos. 1 and 2 were not deleted. The applicant’s counsel sent an email at 12.32 p.m. on 17 November 2010 to Mr B. and Mr H., an editor working for Hegnar Online, requesting written confirmation that the comments would be deleted immediately and arguing that Mr Hegnar himself had “declined all responsibility for the matter” (“ fraskrev seg alt ansvar for saken ”). 13. Mr B. from Hegnar Online responded at 12.45 p.m. the same day, saying that he was sorry that comments in breach of their guidelines had not been deleted, and that he had now deleted the comments he had found. 14. On 19 November 2010 Mr Hegnar wrote an editorial in Kapital commenting on the applicant’s remarks on the forum comments in the context of the complaint against Kapital (see paragraph 10 above). In the editorial, he stated that Hegnar Online was unrelated to Kapital and, furthermore, that Kapital would not take responsibility for what eager commenters wrote on Hegnar Online, which he described as “an open forum”. The editorial read, inter alia, as follows: “... Many strange, annoying and plainly wrong things are written on such open websites, where there is subsequent control and no editorial treatment prior to publishing. Also we ourselves must, at times, endure harsh comments (“ tåle røff omtale ”) on such websites, but we cannot rush off to the Press Complaints Commission with it.” 15. On 23 November 2010 the Press Complaints Commission examined the applicant’s complaints against Kapital and Finansavisen (see paragraph 6 above), and found that both publications had breached the code of conduct for journalists ( Vær varsom-plakaten ): Kapital for their use of a misleading headline (case no. 187/10) and Finansavisen for not giving the applicant the opportunity to reply simultaneously (case no. 192/10). 16. On 28 November 2010 a forum thread was started on the subforum “Media”. The thread starter, under the headline “Mona Høiness vs Trygve Hegnar”, commented on the inheritance case and the applicant’s allegation that she was being sexually harassed (see paragraphs 7 and 10 above). The next posting in the thread, made the same day, said only: “Ask if Mona knows trønderbjørn? :))” ( “Spør om Mona kjenner trønderbjørn? :))” ) On 30 November 2010 the next poster commented: “some have a passion for popstars and football players, while others like to hang around centres for the elderly and old people’s homes”, before another wrote: “are you old, ill and confused? The law firm MH takes the case. NB! Pre-payment only”. At 11.02 a.m. the same day a comment raising the question whether the applicant was “still shagging” someone referred to by the nickname “ trønderbjørn ” (see paragraph 27 below) ( “Driver hun fortsatt å knuller på denne trønderbjørn?” hereinafter “comment 3”) was posted. On 1 December 2010 a poster wrote: “saw a woman sneak out of borgen kremat. [(a crematorium in Oslo)] with two handbags filled with golden jewellery and wallets. She smiled knowingly ... [( “smilte lurt” )]”. All the comments in the thread were made anonymously. 17. On 3 December 2010 an editor at a radio station ( Radio Norge ) drew the applicant’s counsel’s attention to the debate that had been started on the Hegnar Online forum on 28 November 2010 (see paragraph 16 above) and enclosed a copy of the relevant thread in an email. From that it emerged that comment 3 had by then been read 115 times. 18. On 6 December 2010 the applicant’s legal counsel wrote to Mr H., attaching the email from the editor at the radio station and demanding confirmation that harassing comments in the “Media” subforum would be deleted immediately. In an email the same day Mr H. replied that he had also been contacted by the radio editor directly on 3 December 2010 and, on checking, had seen that the comments had by then already been deleted. 19. On 7 January 2011 a complaint concerning the two forum threads as a whole (see paragraphs 9 and 16 above) was lodged with the Press Complaints Commission. On 22 February 2011 it concluded in general terms that neither comments with sexual content nor comments that accused the applicant of unethical or unlawful behaviour in the inheritance case were in compliance with the code of conduct for journalists, and that the editors should accordingly have removed them immediately, pursuant to a provision in that code (case no. 002/11). 20. On 7 April 2011 the applicant’s counsel sent a letter to Hegnar Online stating the applicant’s intention to instigate civil proceedings against Hegnar Online and the editor, Mr H., because comments 1 to 3 had been defamatory and contrary to Article 246 of the Penal Code (see paragraph 43 below). For the defamation she would claim redress under section 3-6 of the Compensation Act (see paragraph 44 below), of amounts limited to 250,000 Norwegian kroner (NOK - today approximately 25,000 euros (EUR)) from the company Hegnar Online and NOK 25,000 (approximately EUR 2,500) from Mr H. personally. The applicant’s counsel argued that comments 1 to 3 had constituted sexual harassment beyond what a publicly known person had to endure and that it was settled law that such derogatory comments, discriminatory to women, were not protected by Article 10 of the Convention under any circumstances. Reference was made to the case of Tammer v. Estonia (no. 41205/98, ECHR 2001 ‑ I). 21. Hegnar Online and Mr H.’s counsel responded in a letter of 28 April 2011. The counsel stated that the company Hegnar Media AS, into which Hegnar Online had by then been incorporated, had a procedure that made it simple to complain about forum comments that anyone might consider inappropriate. Next to each post was a link which could be clicked on in order to warn the company (“warning button”). When the company received such complaints, this usually led to deletion of the comment. Between 1,800 and 2,000 comments per month were deleted on the basis of such complaints. In addition, the company had moderators who on their own initiative removed comments in breach of the forum guidelines. Comments 1 and 2 had been removed immediately – within eight minutes of the applicant’s complaint – and comment 3 had been removed on the initiative of a moderator. In the letter it was further stated that Hegnar Media AS apologised for three of its users having made comments with sexual content, directed at the applicant, but that it did not consider itself liable to pay compensation. The three comments had had nothing to do with the company’s journalistic work or editorial responsibility; they had not been uttered or produced by the company, nor had it authorised them for publication. Furthermore, the comments in question had not been defamatory and had been removed as soon as the company had become aware of them. Although the company did not consider itself legally liable, it offered the applicant NOK 10,000 (today approximately EUR 1,000) for the inconvenience she had suffered because of the comments. B. Proceedings before the City Court 22. On 4 May 2011 the applicant instigated civil proceedings before the Oslo City Court ( tingrett ) against Hegnar Media AS and the editor, Mr H., for defamation. As previously stated in the letter to Hegnar Online (see paragraph 20 above), she claimed that her honour had been infringed because of comments 1 to 3 and that she was therefore entitled to redress. She maintained, inter alia, that the conclusion of the Press Complaints Commission (see paragraph 19 above) supported her argument that the defendants had exactly the same editorial responsibility for the comments as if they had been letters from readers printed in a newspaper. 23. The City Court heard the case from 19 to 20 December 2011. The parties attended with their counsel and one witness was heard. During the proceedings the applicant invoked Articles 246 and 247 of the Penal Code (see paragraph 43 below), in conjunction with section 3-6 of the Compensation Act (see paragraph 44 below). The defendants argued principally that the situation at hand was governed by section 18 of the E-Commerce Act (see paragraph 45 below). They also maintained that Articles 246 and 247 of the Penal Code were inapplicable since they required intent ( forsett ) on the part of the wrongdoer. In the case at hand the defendants had not even been aware of the comments in question, and the principles relating to editorial responsibility were in any event irrelevant. In any case, editorial responsibility could not apply to the situation before the editor had become aware of the comments, and in the instant case they had been removed as soon as Mr H. had become aware of them. 24. On 4 January 2012 the Oslo City Court ruled in favour of the defendants. It considered that the three comments had not amounted to unlawful defamation as they had been incapable of offending either the applicant’s honour or reputation. 25. As to comment 1, the City Court noted that the comment had been tasteless and vulgar, but had not in itself been an accusation ( beskyldning ) of promiscuity or some sort of immoral behaviour. In the City Court’s view, it could not harm the applicant’s reputation ( omdømme ) under Article 247 of the Penal Code (see paragraph 43 below). Furthermore, it had not expressed disdain or disapproval of her, so could not harm her honour ( æresfølelse ) under Article 246 of the Penal Code (ibid.). 26. With respect to comment 2, the City Court again found that it had been tasteless and “unserious”. An anonymous comment of this sort could not, however, harm the applicant’s reputation or honour. It might be considered to be ridicule, but had not exceeded the threshold over which ridicule would be unlawful. The City Court also had regard to the fact that “Theme of the day” was a marginal forum frequented mostly by anonymous people. It was generally unserious and, according to the City Court, most readers would find that the comments said more about those posting them than about the people mentioned in the comments. The City Court expressed that it completely understood that the applicant found it unpleasant that anonymous persons had posted “sleazy” remarks about her on the Internet. However, based on an overall assessment, the City Court concluded that comment 2, either alone or in conjunction with comment 1, had not been capable of harming the applicant’s honour. 27. Turning to comment 3, the City Court said that this was again a comment that most people would consider inappropriate, tasteless and vulgar. It had to be interpreted as an allegation that the applicant had had a sexual relationship with a person nicknamed trønderbjørn. No further information about who or what kind of person that might be had been given either in the forum or during the civil case. The court found that an anonymous comment indicating that the applicant had had a sexual relationship with an unidentified person could not harm the applicant’s reputation or honour. There had been nothing expressly negative in the comment. Moreover, since the writer had been anonymous there had been no reason to take him or her seriously. 28. The City Court also made an overall assessment of the three comments viewed as a whole, but found that they still had not amounted to unlawful defamation. It remarked that several of the other comments in the forum threads in question, that the applicant had not complained about, could possibly be defamatory, as had also been indicated by the defendants briefly during the hearing, but since the applicant had not complained about any other comments, the City Court could not decide on their lawfulness. 29. The applicant was ordered to pay the defendants’ litigation costs of 225,480 Norwegian kroner (NOK - approximately 24,650 euros (EUR)). The City Court stated that it was in no doubt as to the result of the case and noted that the applicant had turned down the defendant’s offer of settlement (see paragraph 21 above). The defendants had claimed NOK 290,880 (approximately EUR 30,615), an amount which the City Court considered exceeded what was reasonable and necessary under the relevant provisions of the Dispute Act (see paragraph 47 below). C. Proceedings before the High Court 30. On 31 January 2012 the applicant appealed against the City Court’s judgment to the Borgarting High Court ( lagmannsrett ). Apart from maintaining that the three statements (comments 1 to 3) had amounted to unlawful defamation, she submitted that her right to privacy ( privatlivets fred ) as enshrined in Article 390a of the Penal Code, and her rights under the general principles concerning the protection of personality ( det ulovfestede alminnelige rettsvern for personligheten ) had been breached. Moreover, she argued that the comments had been in breach of section 8a of the Gender Equality Act and that under section 17 of that Act compensation was payable (see paragraph 46 below). Lastly, she submitted that the defendants had been awarded an amount of litigation costs exceeding what had been necessary. 31. The High Court heard the case on 10 and 11 September 2013. The parties attended and gave evidence, and one witness was heard. The judgment was delivered on 24 October 2013. 32. The High Court stated at the outset of the judgment that there had been an extensive coverage of the inheritance case both by the Hegnar Group and other media. The coverage had undoubtedly been a strain on the applicant, but was not the topic of the proceedings. It did however form a background to the case and explained why the applicant had come into the spotlight and subsequently been the topic of anonymous statements on the debate forum related to Hegnar Online. 33. The High Court went on to state that it was of the view that the applicant had had good reason to react to the statements on the Hegnar Online forum. The statements had been unserious and sexually loaded. Accordingly, she had by way of a complaint to the Press Complaints Commission achieved a declaration that Hegnar Online had breached the code of conduct for journalists because the content of the forum threads had exceeded what she had had to accept and that Hegnar Online should on its own initiative have discovered and removed the comments more quickly than had happened. 34. Turning to the question of liability to pay compensation, the High Court stated that this was a different question to that considered by the Press Complaints Commission. At this point the High Court had reached the same conclusion as the City Court had, but on different grounds. The City Court had considered each of the three comments in detail and concluded that, although inappropriate, unserious and tasteless ( “usaklige, useriøse og smakløse ”), they did not fall within the scope of Articles 246 and 247 of the Penal Code (see paragraphs 24-28 above and 43 below). The High Court stated that it shared the City Court’s view with regard to the lack of seriousness, but deemed it unnecessary to assess the three comments against the provisions on defamation. 35. Instead, the High Court proceeded on the basis that the applicant’s claim for compensation could in any event not succeed unless the defendants had acted with sufficient culpability. It would be decisive whether such culpability had been demonstrated by Hegnar Online and Mr H. not having done enough to discover and thereafter remove the impugned comments. 36. The High Court further stated that one characteristic of posts on the type of debate forum in question, and also of comments on editorial content posted online, was that they were posted in real time without any prior censorship being possible. This meant that controls needed to be carried out subsequently, regardless of whether it concerned content subject to editorial responsibility or a website with only user-generated content. 37. With regard to the general system for monitoring content, the High Court noted that there were “warning buttons” on the website, which readers could click on in order to react to comments. Furthermore, the editorial staff had the task of monitoring content and removing comments on their own initiative. However, there were a very large number of posts on the forum as a whole, and the High Court presumed that only a few discoveries of content to be removed had been made at the relevant time. 38. Turning to the three specific comments in question, the High Court noted that comments 1 and 2 had been posted on 6 and 8 November 2010 respectively. The applicant had been notified by others of the comments, and had not read them herself on the website. The editorial staff had been notified of the two comments by email on 17 November 2010, and had responded thirteen minutes later that they had been removed. This had clearly been an adequate reaction. However, the High Court discussed whether the letter from the applicant’s counsel to the Press Complaints Commission on 8 November 2010 (see paragraph 10 above) implied that Mr Hegnar should have initiated a deletion process at that time. Having regard to the fact that the letter was formally made in a different context, namely the pending complaint against Kapital (see paragraph 6 above), and did not contain any request that the comments be removed, the High Court found it appropriate that Mr Hegnar had only considered the letter as a document in the Kapital case. 39. With respect to comment 3, this had been posted on 30 November 2010. On 3 December 2010 staff at Radio Norge had informed the applicant’s counsel, who had contacted Hegnar Online on 6 December 2010. Hegnar Online had by then already looked into the matter, as it had received a similar notification from Radio Norge on 3 December 2010, and had on that date noticed that the comment had already been deleted, presumably by a moderator at Hegnar Online. As this comment had, thus, rapidly been deleted of the staff’s own motion, there was nothing to suggest liability on the part of Hegnar Online. 40. The High Court upheld the City Court’s decision on litigation costs before the City Court and awarded the defendants NOK 183,380 (approximately EUR 20,050) for their costs before the High Court. It remarked that the case had been clear and that neither considerations on the parties’ welfare nor relative strength (see paragraph 47 below) could justify not awarding the winning party costs. The defendants had claimed NOK 231,980 (approximately EUR 24,416), but the High Court found that as their counsel charged a high hourly rate, appropriate for a specialist lawyer, this should have been reflected in a lower amount of hours. D. Proceedings before the Supreme Court 41. On 22 November 2013 the applicant appealed against the High Court’s judgment to the Supreme Court ( Høyesterett ). She contested the High Court’s assessment that the defendants had acted with sufficient care and alleged that the High Court had erred in law as its reasoning had not been clear with respect to the standard of care required, notably whether it had proceeded on the basis that negligence would suffice for liability, or whether the establishment of gross negligence had been necessary. She also contested the High Court’s assessment of evidence concerning Mr Hegnar’s dealing with the letter of 8 November 2010 addressed to the Press Complaints Commission. The applicant pointed out that Mr Hegnar had written an editorial in Kapital on 19 November 2010, making remarks about how the applicant had complained about comments on the forum (see paragraph 14 above). Furthermore, the applicant argued that the High Court had wrongfully proceeded on the basis that the standards for the moderation of websites with user-generated content had been more lenient in 2010 than at the time of the High Court’s judgment. Lastly, she appealed against the High Court’s decision on litigation costs. The defendant’s counsel charged an hourly rate of up to NOK 3,900 (approximately EUR 410), which was so high that there would be a chilling effect on individuals’ willingness to challenge violations of Article 8 of the Convention. 42. On 7 February 2014 the Supreme Court’s Appeals Leave Committee ( Høyesteretts ankeutvalg ) refused the applicant leave to appeal against either the High Court’s judgment as a whole or against its decision on legal costs. | This case concerned the Norwegian courts’ refusal to impose civil liability on an Internet forum host after vulgar comments about the applicant, a well-known lawyer, had been posted on the forum. The applicant complained that the authorities had violated her rights by not sufficiently protecting her right to protection of her reputation and by requiring her to pay litigation costs to the extent seen in her case. |
713 | Right to form, to join or not join a trade union | I. PARTICULAR CIRCUMSTANCES OF THE THE CASE 9. From the summer of 1987 until the end of the summer of 1990 the applicant owned the summer restaurant Ihrebaden at Ihreviken, Tingstäde, on the island of Gotland. The applicant further owned - and continues to own - the youth hostel Lummelunda at Nyhamn, Visby, also on Gotland. The restaurant’s employees numbered less than ten. They were engaged on a seasonal basis, but had the option of being re-employed the following year. The applicant’s ownership of the restaurant and youth hostel was direct and entailed his personal financial liability (enskild firma). 10. As the applicant was not a member of either of the two associations of restaurant employers, namely the Swedish Hotel and Restaurant Entrepreneurs’ Union (Hotell- och Restaurangar - betsgivareföreningen - "HRAF", which is affiliated to the Swedish Employers’ Confederation (Svenska Arbetsgivareföreningen - "SAF")) and the Employers’ Association of the Swedish Union of Restaurant Owners (Svenska Restauratörsförbundets Arbetsgivareförening - "SRA"), he was not bound by any collective labour agreement (kollektivavtal) between the two associations and the Hotel and Restaurant Workers’ Union (Hotell- och Restauranganställdas Förbund - "HRF"). Nor was he obliged to subscribe to the various labour-market insurance schemes (Arbetsmarknadsförsäkring) developed through agreements between SAF and the Swedish Trade Union Confederation (Landsorganisationen). It was, however, open to the applicant to accede to a collective agreement by accepting a substitute agreement (hängavtal). He could also subscribe to insurance schemes with Labour-Market Insurances or any of the other ten or so insurance companies in the field. 11. In late June or early July 1987 he refused to sign a separate substitute agreement with HRF. He referred to his objections of principle regarding the system of collective bargaining. He also emphasised that his employees were paid more than they would have been under a collective agreement and that they themselves objected to his signing a substitute agreement on their behalf. The substitute agreement proposed to the applicant included these terms: "Parties: [The applicant] and [HRF] Term of validity: From 1 July 1987 up to and including31 December 1988, thereafter for one year at a time, unlessnotice is given two months prior to the expiry of the[agreement] ... As from the [above] date, the most recent agreement between[the employers’ association] and [HRF] shall be applied between[the applicant and HRF]. Should [the employers’ association]and [HRF] subsequently reach a new agreement or agree to amendor supplement the [present] agreement, [the new agreement,amendments or supplements] shall automatically apply as fromthe day on which [it or they] [has or have] been [agreed upon]. ... 1. [The employer shall] [on his employees’ behalf] subscribeto and maintain [five different] insurance-policy schemes withLabour-Market Insurances, ... as well as other possibleinsurance-policy schemes which [the employers’ association andHRF] might later agree upon. 2. [The employer shall] issue employment certificates on aspecial form ... A copy shall be sent to [HRF]. 3. [The employer shall] only employ [workers who are members]of or [have] requested membership of [HRF]. In the event ofre-employment the provisions of section 25 of the EmploymentProtection Act (lag (1982:80) om anställnings-skydd) shallapply. 4. [The employer shall] deduct on a monthly basis a part ofthe salary of employed members of [HRF] corresponding to theirmembership fees, and pay [the deducted part] to [HRF]. ..." 12. On 16 July 1987, during further negotiations with the applicant, HRF proposed another substitute agreement, which he also rejected: "Subject: The signing of a collective agreement regarding [therestaurant] Ihrebaden ... and the Lummelunda youth hostel. 1. Having regard to the forthcoming end of the [season of1987] the parties agree on the following procedure replacing the signing of a collective agreement. The enterprise agrees to comply, during this season ..., with the collective labour agreement (`the green nationalagreement’) between [HRAF] and [HRF], this including the obligation to subscribe to [certain] insurance schemes(avtalsförsäkringar) with Labour-Market Insurances. 2. The enterprise also agrees to [comply with] [the]collective labour agreement ... during the next season ...,either by way of membership of the employers’ union or bysigning a ... substitute agreement ..." 13. Had the applicant accepted a substitute agreement, it would have applied not only to those of his employees who were unionised but also to those who were not. In the summer of 1986, one member of HRF was employed by the applicant. In 1987 he employed another member of that union and also two persons who were respectively members of the Commercial Employees’ Union (Handelsanställdas Förbund) and the Union of Municipal Workers (Kommunalarbetareförbundet). In 1989, one member of the latter union was employed by the applicant. 14. Following the applicant’s refusal to sign a substitute agreement, HRF, in July 1987, placed his restaurant under a "blockade" and declared a boycott against it. Sympathy industrial action was taken the same month by the Commercial Employees’ Union and the Swedish Food Workers’ Union (Svenska Livsmedelsarbetareförbundet). In the summer of 1988 sympathy action was also taken by the Swedish Transport Workers’ Union (Svenska transportarbetareförbundet) and the Union of Municipal Employees (Kommunaltjenestemannaförbundet). As a result deliveries to the restaurant were stopped. 15. One of the persons employed by the applicant at Ihre baden who was member of HRF had publicly expressed the opinion that the industrial action was unnecessary, as the salary and working conditions in the restaurant were not open to criticism. According to the Government, the union action had its background in a request for assistance in 1986 by an HRF member employed by the applicant. In the view of the union, the applicant paid his employees approximately 900 Swedish kronor (SEK) a month less than what they would have received under a collective agreement. He did not pay his staff holiday compensation as provided for in the 1977 Annual Leave Act (semesterlagen 1977:480), nor salary during lay-offs due to poor weather conditions as required by the 1982 Employment Protection Act and he did not sign a labour-market insurance until 1988. 16. In August 1988 the applicant, invoking the Convention, requested the Government to prohibit HRF from continuing the blockade and the other trade unions from continuing their sympathy action and to order the unions to pay compensation for damages. In the alternative, he requested that compensation be paid by the State. 17. By a decision of 12 January 1989 the Government (Ministry of Justice) dismissed the applicant’s request. The Government stated: "The requests for a prohibition of the blockade and thesympathy action as well as compensation for damage from thetrade unions concern a legal dispute between private subjects.According to Chapter 11, Article 3, of the Instrument of Government [Regeringsformen which forms part of theConstitution], such disputes may not be determined by anypublic authority other than a court of law, except by virtueof law. There is no provision in the law which authorises theGovernment to examine such disputes. The Government will not,therefore, examine these requests on the merits. The claim for damages is dismissed." 18. The applicant applied to the Supreme Administrative Court (Regeringsrätten) for review under the 1988 Act on Judicial Review of Certain Administrative Decisions (lag (1988:205) om rättsprövning av vissa förvaltningsbeslut - "the 1988 Act"). On 29 June 1989 the Supreme Administrative Court dismissed the application on the ground that the Government’s decision did not concern an administrative matter involving the exercise of public power, which was a condition for review under section 1 of the Act. 19. On 15 September 1989 the Swedish Touring Club (Svenska turistföreningen - "STF"), a non-profit-making association promoting tourism in Sweden, terminated the membership of the applicant’s youth hostel, referring to a lack of cooperation and the applicant’s negative attitude towards STF. As a result, the hostel was no longer mentioned in STF’s catalogue of youth hostels in Sweden. In 1989 about half of the youth hostels in Sweden were enrolled in STF. 20. The applicant brought proceedings in the District Court (tingsrätten) of Stockholm. He contested what he considered to be his personal exclusion from STF, alleging that it had been caused by HRF threats that it would take industrial action against other youth hostels enrolled in STF if his hostel was not excluded. He also challenged STF’s termination of the membership of his youth hostel. STF accepted, inter alia, that although the termination of the membership contract concerning the applicant’s youth hostel had not been prompted by the conflict between the applicant and the trade unions, this conflict might have affected the timing of the decision. STF also referred to an opinion of the Competition Ombudsman (ombudsmannen för näringsfrihet) of 14 November 1989 to the effect that the termination of the contract in question would have only a very limited impact on his business. 21. By a judgment of 8 May 1991 the District Court rejected the applicant’s action on both points. It found, inter alia, that the applicant had not shown that he had been personally excluded from STF by virtue of the termination of STF’s contract concerning his youth hostel. It also found that he had not shown that the contract had been financially significant to his business. Reference was made to the Competition Ombudsman’s finding. 22. The applicant appealed to the Svea Court of Appeal (Svea hovrätt) which, on 6 March 1992, upheld the District Court’s judgment. The Court of Appeal found, inter alia, that STF’s termination of the contract concerning the youth hostel had entailed the expiry of the applicant’s personal membership of STF. This, however, had not been tantamount to his exclusion, given that he could have continued or renewed his membership. Moreover, although the contract had been of appreciable significance to the applicant’s business, STF’s termination of the contract could not be considered unreasonable. 23. At the beginning of 1991 the applicant sold his restaurant due to his difficulties in running his business which had allegedly been caused by the industrial action. The restaurant was bought by a person who signed a collective agreement with HRF. He continued, together with his family, to run the youth hostel in Lummelunda. Following the above, the union action was terminated. 24. On 9 November 1991 the applicant requested the Government to support his application to the Commission. On 12 December 1991 the Government decided not to take any action in respect of the request. | This case concerned trade union action (boycott and blockade of a restaurant) against an applicant who had refused to sign a collective agreement in the catering sector. |
1,007 | Cases concerning NATO operations in Afghanistan | THE BACKGROUND TO THE CASE 9. The applicant was born in Omar Khel, Afghanistan, and lives there. 10. Following the attacks of 11 September 2001, the United States, together with the United Kingdom, launched military operations in Afghanistan on 7 October 2001. Called Operation Enduring Freedom, these operations included the destruction of terrorist training camps and infrastructure, as well as the capture of al-Qaeda leaders, and drove the Taliban from power. 11. On 16 November 2001 the German Parliament authorised the deployment of up to 3,900 German soldiers as part of Operation Enduring Freedom. The contingent included around 100 soldiers of the German Special Forces, who were subsequently involved in counterterrorism operations in Afghanistan. 12. In the beginning of December 2001, twenty-five prominent Afghan leaders met in Bonn under the auspices of the United Nations to decide on a plan for governing the country. They set up an Afghan Interim Authority and chose its leader. In the agreement of 5 December 2001 (“the Bonn Agreement”, as to which see paragraph 71 below), the participants at the conference requested the assistance of the international community in maintaining security in Afghanistan and envisaged the establishment of an International Security Assistance Force (“ISAF”). 13. On 20 December 2001 the United Nations Security Council authorised the establishment of ISAF. ISAF was to assist the Afghan Interim Authority in maintaining security in Kabul and surrounding areas and to enable the Interim Authority and the United Nations to operate in a safe environment. While ISAF mainly focused on maintaining security, the forces engaged in Operation Enduring Freedom continued to carry out counterterrorism and counter-insurgency operations. 14. On 22 December 2001 the German Parliament authorised the deployment of German armed forces as part of ISAF (see paragraph 91 below). 15. On 11 August 2003 NATO assumed command of ISAF and subsequently ISAF’s mission was expanded beyond the Kabul area. By the end of 2006 ISAF was responsible for all of Afghanistan. 16. After NATO assumed command of ISAF, ISAF Headquarters (“ISAF HQ”) and the Commander of ISAF (“COMISAF”) were placed under the command of the NATO Allied Joint Force Command and of the NATO Supreme Allied Commander Europe. Under ISAF HQ were five Regional Commands (“RCs”), which coordinated all regional civil-military activities conducted by the military elements of the Provincial Reconstruction Teams [1] (“PRTs”) in their respective areas of responsibility. While ISAF HQ / COMISAF retained operational control, the PRTs were placed under the command – in the form of tactical control – of the respective Regional Command. 17. German troops were deployed under RC North, which was led by Germany. At the relevant time, the Commander of RC North was the German Brigadier-General V. PRT Kunduz, which was part of RC North, was commanded by the German Colonel K. 18. Parallel to the command structure of ISAF, disciplinary and administrative command and control remained with the respective troop-contributing States (see paragraph 75 below). Therefore the deployed troops in PRT Kunduz were in that regard under the command and control of Colonel K., who himself was under the command and control of Brigadier-General V. The latter also commanded the entire German ISAF contingent in Afghanistan and was placed – via the commander of the Bundeswehr Joint Forces Operations Command – under the command of the Federal Ministry of Defence. 19. At the relevant time RC North consisted of approximately 5,600 troops, 4,245 of which were German soldiers. Around 1,500 soldiers were stationed at PRT Kunduz including two German special operations units. 20. After April 2009 the security situation in Kunduz province deteriorated. Particularly during the elections in August and September 2009, an increased number of attacks on ISAF troops occurred, which resulted in several casualties. According to a statement made by Colonel K. before a German parliamentary commission of inquiry, the troops had had to expect attacks whenever they left their base. The Circumstances of the caseThe air strike of 4 September 2009 The air strike of 4 September 2009 The air strike of 4 September 2009 21. On 3 September 2009 insurgents hijacked two fuel tankers, killing one of the two drivers. Later that day the fuel tankers became immobilised on a sand bank in the Kunduz River, around seven kilometres from the base of PRT Kunduz. To mobilise the fuel tankers again, the insurgents enlisted the population of nearby villages to siphon off (some of) the fuel from them. 22. At around 8 p.m. an informant tipped off PRT Kunduz about the hijacking of the fuel tankers. At around 9 p.m. PRT Kunduz was formally informed of the event. At 9.55 p.m. an aircraft previously tasked with another operation was instructed to locate the fuel tankers. At around 12.15 a.m. the tankers were spotted by the surveillance aircraft. The video footage transmitted from the aircraft to the command centre showed the two tankers as well as several vehicles next to the bank and numerous persons. In the course of the night, Captain X. – who was present at the command centre along with Staff Sergeants W. and Y. – repeatedly went to see the interpreter on duty in order to obtain direct information from the informant and/or to transmit questions from Colonel K. to the informant, who had first informed PRT Kunduz of the hijacking. At around 12.30 a.m. the informant reported the partial emptying of the tankers by the armed insurgents, as well as the absence of civilians at the sand bank. The informant’s description corresponded to the conditions that could be discerned on the video footage. At 12.48 a.m., the surveillance aircraft ran low on fuel and returned to its base. Shortly thereafter, Staff Sergeant W. contacted ISAF HQ to request a replacement aircraft. He was told that air support could be provided only if a “troops in contact” situation was declared, that is, if ISAF troops were in actual contact with insurgents. At around 1 a.m., Colonel K. declared “troops in contact”, even though there had been no enemy contact in the literal sense of the term, and two United States Air Force (USAF) F-15 aircraft were ordered to the riverbank, where the fuel tankers were still stuck and continued to be siphoned off. 23. The F-15 aircraft reached the air space above the sand bank at around 1.10 a.m. Discussions between the pilots and the command centre ensued about the use of 500-pound or 2,000-pound bombs and the potential damage to civilian objects near the sand bank. In response to Colonel K.’s repeated queries, the informant confirmed that only insurgents and no civilians were present near the sand bank. After refusing suggestions by the pilots to make a “show of force” by flying at low altitude over the tankers to disperse the people on the ground, Colonel K. gave the order to bomb the still immobilised fuel tankers. Two 500-pound bombs were dropped at 1.49 a.m. 24. A first post-attack reconnaissance was performed by the USAF F-15 aircraft immediately after their air strike. In addition, an unmanned aircraft inspected the site of the air strike at around 8 a.m. the following morning. 25. The air strike destroyed the two fuel tankers and killed, inter alios, the applicant’s two sons: Abdul Bayan and Nesarullah. They were 12 and 8 years old, respectively. The total number of victims of the air strike has never been established (see paragraphs 40 and 65-69 below). The German Government made ex gratia payments of 5,000 United States dollars per person to the families of 91 killed individuals and to eleven injured persons. Investigations into the air strikeOn-site investigation On-site investigation On-site investigation 26. Later on that same morning, after being informed of the air strike, Brigadier-General V. sent an investigation team of the German military police ( Feldjäger ) from Masar-i-Sharif to Kunduz to support PRT Kunduz in the investigation into the air strike. 27. At 12.13 p.m. on the same day, a team from PRT Kunduz departed for the site of the air strike, which it reached at 12.34 p.m. No members of the team from Masar-i-Sharif, which had left from their base at 12.24 p.m. and had not yet arrived at the base of PRT Kunduz, participated in the on-site visit. The team from PRT Kunduz came across an extensively altered site, with only a few destroyed cars and no bodies. During the visit, the team, who were afforded protection by some one hundred members of the Afghan security forces, came under attack, but managed to continue investigating after returning fire. After the team’s return to the base at 2.23 p.m., an evaluation meeting was held from 2.45 p.m. onwards, which involved Colonel K. and members of the military police team deployed from Masar-i-Sharif, who had arrived in the meantime. 28. On 4 and 5 September 2009, members of PRT Kunduz, the military police and the ISAF “Initial Action Team” (see paragraph 65 below) visited hospitals and villages in the area and interviewed several persons regarding the air strike. Colonel K. was partially involved in some interviews and was kept up to date regarding the investigation. 29. The military police submitted their report to Brigadier-General V. on 9 September 2009. Investigation by the German public prosecution authorities 30. On the day of the air strike, the chief legal officer of the armed forces informed the public prosecutor’s office in Potsdam (where the Bundeswehr Operations Command is located) of the air strike. On 7 September 2009, the public prosecutor’s office in Potsdam launched a preliminary investigation, which was later transferred to the public prosecutor’s office in Leipzig (the then-duty station of Colonel K.) and subsequently to the Dresden Public Prosecutor General (the prosecution authority superior to the Leipzig public prosecutor). After further preparatory work, which included exchanges with the Federal Ministry of Defence concerning the legal framework of the military deployment in Afghanistan and the potential existence of an exculpatory defence ( Rechtfertigungsgrund ), on 5 November 2009 the Dresden Public Prosecutor General requested the office of the Federal Prosecutor General to review the possibility of taking over the prosecution of the case in the light of possible liability under the Code of Crimes against International Law (see paragraphs 94-95 and 101 below). By this time, the Federal Prosecutor General’s office was already in the process of establishing whether it had competence, having initiated a preliminary investigation on 8 September 2009. 31. As to the course of the investigation, the Federal Prosecutor General, by letter of 27 November 2009, asked the Bundeswehr Operations Command to forward all findings of fact relevant to the air strike in question for further clarification. Three days later the Bundeswehr Operations Command forwarded a considerable number of reports. It provided further additional documentation on 16 December 2009. By letter of 8 December 2009, the Federal Prosecutor General asked for copies of the files presented to the parliamentary commission of inquiry (see paragraph 69 below), which were subsequently provided to him; he also received copies of the transcripts of the commission’s hearings. On 21 December 2009 the Federal Prosecutor General sent a comprehensive catalogue of questions to the Bundeswehr Operations Command, which were answered in a letter dated 8 February 2010. On 23 February 2010 a letter with additional questions was addressed to the German Federal Ministry of Defence, which responded to these. 32. On 12 March 2010, on the basis of the factual findings up to that point, the Federal Prosecutor General opened a criminal investigation against Colonel K. and Staff Sergeant W., who had assisted Colonel K. on the night of the air strike. From 22 to 25 March 2010 the Federal Prosecutor General questioned the two suspects and interviewed two witnesses (Captain X. and Staff Sergeant Y.), who had been present at the command centre of the base in Kunduz at the relevant time. Moreover, the collection of documents and the video material from the aircraft were analysed. 33. On 16 April 2010 the Federal Prosecutor General discontinued the criminal investigation due to a lack of sufficient grounds for suspicion that the suspects had incurred criminal liability under either the Code of Crimes against International Law or the Criminal Code. He determined that the situation in Afghanistan at the material time, at least in the northern part of the country where the German armed forces were deployed, amounted to a non-international armed conflict within the meaning of international humanitarian law, notwithstanding the involvement of international troops. He concluded that Afghanistan had consented to the ISAF deployment in a manner valid under international law and ISAF was fighting on behalf of the Afghan authorities. The Taliban insurgency and the groups affiliated thereto, described in detail in the discontinuation decision, were to be classified as a “party to the conflict” under international law. The existence of this non-international armed conflict triggered the applicability of international humanitarian law (see also Article 25 of the Basic Law, cited in paragraph 93 below) and of the Code of Crimes against International Law. German soldiers forming part of ISAF were regular combatants and therefore not criminally liable for acts of war permitted under international law. The Federal Prosecutor General concluded that Colonel K.’s liability under the Code of Crimes against International Law, notably its Article 11 § 1 no. 3 (see paragraph 95 below), was excluded because Colonel K. did not have the necessary intent to kill or harm civilians or damage civilian objects. Liability under the Criminal Code, for murder but also for any other offence, was excluded because the lawfulness of the air strike under international law served as an exculpatory defence. 34. A press release summarising the main findings of the Federal Prosecutor General and indicating that most of the factual information was classified was issued on 19 April 2010. A redacted version of the discontinuation decision was prepared on 13 October 2010. 35. The discontinuation decision stated that the following pieces of evidence had been assessed: “– COMISAF investigation report with all annexes; – NATO/ISAF provisions (Standard Operating Procedures, Rules of Engagement, Tactical Directives, Intelligence Evaluation Matrix, Special Instructions for Air and Space Operations); – report of the Military Police of 9 September 2009, with 44 annexes (including photographs and video footage); – written statement by Colonel K. of 5 September 2009 made to the Chief of Staff of the German Armed Forces; – report by Colonel N., member of the ISAF fact-finding team, of 6 September 2009; – report of the representative of the Kunduz region to the Afghan President of 4 September 2009; – report of the Afghan commission of inquiry to the Afghan President; – United Nations Assistance Mission in Afghanistan (‘UNAMA’) list of potential civilian victims of the air strike; – [non-governmental organisation] report of 5 September 2009 [classified]; – report of the ISAF Initial Action Team of 6 September 2009; – minutes of the conversations at PRT Kunduz with the Afghan commission of inquiry, with local representatives and with a delegation of the Initial Action Team; – written statement by the Operations Command of the German Armed Forces of 8 February 2010 in response to the questions by the Federal Prosecutor General of 21 December 2009; – 164 file folders of the Federal Ministry of Defence; – minutes of the meetings of the Parliamentary Defence Committee sitting as First Commission of Inquiry, in which the two suspects and Captain X. were examined; – examinations of the two suspects as well as of the witnesses Captain X. and Staff Sergeant Y. by the Federal Prosecutor General; – minutes of the radio traffic between the pilots of the F ‑ 15 aircraft and Staff Sergeant W. and video footage.” 36. The Federal Prosecutor General considered that two aspects, in particular, had to be clarified: Colonel K.’s subjective assessment of the situation when he ordered the air strike; and the exact number of persons who had suffered death or injury as a result. 37. He found credible Colonel K.’s account that he had assumed that only Taliban insurgents, and no civilians, had been located near the fuel tankers when he ordered the air strike. It had been corroborated by a large number of objective circumstances, the statements of the persons who had been present at the command centre, and the video footage from the aircraft prior to and during the air strike. 38. Given that the release of the bombs had occurred at 1.49 a.m., during Ramadan, with the nearest village located at least 850 metres away, in an area that was a stronghold of the insurgents, the presence of civilians would have seemed unlikely from the standpoint of an objective observer. There had also been an intelligence warning regarding a planned attack on the German base involving vehicles packed with explosives. Numerous such attacks had already been perpetrated in Afghanistan in the months leading up to 4 September 2009. Colonel K. had had no reason to doubt the accuracy of the intelligence provided by the informant. He had worked with that same informant only a few days before and the information provided had been reliable. Captain X., through whom he had had at least seven calls put through to the informant in order to verify the evolution of the situation and to confirm that only insurgents were present at the scene, had for his part regarded the informant as reliable. The intelligence given by the informant corresponded to the video feed from the aircraft. Colonel K.’s conduct was in line with the care he had exercised on earlier occasions in taking decisions that might cause collateral damage to civilian life. 39. The other persons present at the command post had all credibly testified that they had operated on the assumption that only insurgents and no civilians had been present at the location. It was unlikely that any additional insights as to whether or not Colonel K. had acted in the expectation of civilian casualties when he ordered the air strike could be gleaned by examining additional witnesses. Captain X., who was also examined, had been the only person present at the time the informant’s intelligence was transmitted and there were no indications that he had transmitted the said intelligence incorrectly. The radio communication between the pilots and the command centre did not contain any indication that Colonel K. had acted in the expectation of civilian casualties. It had not been in dispute that the fuel tankers had been in the hands of Taliban fighters and there were no indications that these fighters were no longer near the fuel tankers at the time of the air strike. Moreover, as the Taliban were indistinguishable from civilians based on attire, it was not possible for the pilots to help establish whether it was visually apparent that the persons around the fuel tankers had included civilians. 40. In the case at hand, the number of civilian casualties could not serve as circumstantial evidence from which Colonel K.’s subjective expectations could be deduced. The number of persons killed or injured by the air strike, and how many of these were Taliban or civilians, could not be ascertained. Having regard to the divergent findings of the different reports in this respect, the methods by which they had been established and the available evidence, including the video material, it was probable that about fifty persons had been killed or injured. It was certain that two known Taliban commanders were among those killed, and the available reports allowed the conclusion that there were significantly more Taliban than civilians among the victims. It was not possible to clarify this matter further as the social and religious mores of the Afghan population prevented use of modern forensic investigation techniques, including the exhumation of bodies or DNA analysis, that would be required. In any event the number of people present on the scene at the time of the air strike did not constitute a reason to question Colonel K.’s assumption that he was dealing exclusively with Taliban fighters. 41. Regarding Colonel K.’s liability under the Code of Crimes against International Law, the Federal Prosecutor General considered that the air strike of 4 September 2009 met the functional context requirement and the objective constituent elements of Article 11 § 1 no. 3 of the Code, as it constituted an attack by military means in connection with the non-international armed conflict in Afghanistan. The subjective constituent elements of the offence, by contrast, were not present. Direct intent to cause disproportionate collateral damage was required. Colonel K. had credibly testified that he had acted on the premise that only insurgents were present at the scene. Not only had he thus not expected damage to civilians with the certainty required by the provision; he had, in fact, not expected such damage to occur at all. The question of the disproportionality of the expected collateral damage thus did not even arise. 42. The fuel tankers had been hijacked by an organised group of armed Taliban fighters. Both the members of that group and the fuel tankers were legitimate military targets at the time Colonel K. had ordered the air strike. In respect of the Taliban, the Federal Prosecutor General explained that under international law all persons who had become functionally integrated into, and exercised a continuous combat function within, an organised armed group were not civilians but legitimate military targets. Such persons could also be attacked outside the scope of ongoing hostilities until they had given up this combat function in a lasting and conclusive manner (see paragraph 80 below). 43. The Federal Prosecutor General considered that general criminal law had remained applicable and concluded that his competence extended to prosecuting offences under the Criminal Code where the military action fell within the scope of the Code of Crimes against International Law. However Colonel K. could also not be held liable under the Criminal Code, and Staff Sergeant W. could not be liable for having aided and abetted Colonel K. While the objective and subjective constituent elements of the offence of murder had been present, Colonel K.’s actions had been lawful under international law, which served as an exculpatory defence in respect of military action. 44. The international humanitarian law status of the victims of the air strike was crucial for determining its lawfulness. Armed fighters affiliated with a non-State party to a non-international armed conflict and civilians participating directly in hostilities were legitimate targets for military attacks, whereas civilians not directly participating in hostilities were not. The armed Taliban fighters who had hijacked the two fuel tankers – and who probably accounted for most of the victims of the air strike – were indeed members of an organised armed group that was party to the armed conflict. They were thus legitimate military targets whose “destruction” was permissible within the bounds of military necessity, in respect of which no restrictions could be inferred in the present case. 45. The air strike had also led to the killing of civilians who were protected under international humanitarian law and were not legitimate targets of military attack. It could be accepted as a premise that all those air strike victims who were not Taliban fighters were civilians not taking a direct part in the hostilities, including those who were helping the Taliban to free the fuel tankers from the sand bank and those who were trying to obtain fuel for their own benefit. However, Colonel K.’s order to launch the air strike was legitimate under international law even considering that it had also killed civilians protected under international humanitarian law. International humanitarian law only prohibited attacks launched against civilians as such or against a military objective when the civilian damage to be expected at the time of ordering the attack was disproportionate (“excessive”) to the expected, actual and direct military advantage (see paragraph 81 below). The military standard of disproportionality, that is to say the prohibition of excessiveness, could not be equated with the stricter benchmark of a lack of reasonableness. The attacker’s objectively based expectation at the time of the military action was decisive, both in respect of the tactical military advantage and foreseeable civilian collateral damage. Civilian collateral damage was relevant to the proportionality test only if a commander had failed to take “feasible precautions” which would have enabled him to anticipate an event of major civilian collateral damage occurring. Disproportionality in this sense could be imputed only in a case of patent excess. 46. The air strike at issue had pursued two military objectives: to destroy the fuel tankers and the fuel hijacked by the Taliban; and to kill Taliban fighters. Given the circumstances known to Colonel K. (the distance of the sand bank from inhabited settlements, the time of night and the presence of armed Taliban), and given the statements made by the informant, Colonel K. had had no reason to suspect the presence of protected civilians at the scene. There had been no possibility of implementing further reconnaissance and/or precautionary measures in a timely manner. The danger that the fuel tankers or the fuel would be recovered by the Taliban was not one which Colonel K. had been obliged to accept. The circumstances provided sufficient indications that the persons in question were the legitimate target of a military attack: no absolute certainty was required. 47. However, even assuming for the sake of argument that Colonel K. ought to have anticipated the killing of several dozen protected civilians, this would not have been out of all proportion to the expected military advantage. Nor would it have breached the precept to use the mildest possible means. The question of means had in fact been discussed before the air strike among Colonel K., Staff Sergeant W. and the pilots. Contrary to the latter’s recommendation to deploy heavier ordinance, Colonel K. had opted for the smallest bomb size available and for the use of delayed detonation fuses, which limited the bombs’ effective range. 48. The conclusion that the attack order was permissible under international law was unaffected by the general obligation to give advance warnings before an attack that could potentially cause collateral damage to the civilian population. Not only had Colonel K. been working on the justifiable assumption that the attack he had ordered would not hit any civilians, but the aforementioned obligation could be dispensed with if the prevailing circumstances so dictated (see paragraph 81 below). In the case at hand giving a warning could have thwarted the legitimate military objective of killing the Taliban fighters. 49. Any alleged breach of internal rules such as the ISAF Rules of Engagement, which involved a self-imposed restriction in the interests of achieving a long-term political solution to the Afghan conflict and which afforded a higher level of protection to the civilian population than required under international law, was irrelevant for evaluating the lawfulness of military conduct. The applicant’s involvement in the investigation and his challenges to the discontinuation decision (a) Access to the investigation file 50. On 12 April 2010 the applicant, through his legal representative, filed a criminal complaint with the Federal Prosecutor General regarding the death of, inter alios, his two sons. He also requested access to the investigation file. The applicant’s representative presented an authority to act on the applicant’s behalf, as well as another authority entitling him to act on behalf of the relatives of a further 113 persons allegedly killed by the air strike. By letter of 27 April 2010 the Federal Prosecutor General informed the applicant’s representative that the criminal investigation had been discontinued in the meantime, without the applicant having been heard, and that the applicant’s request for access to the investigation file would require a more detailed assessment concerning the applicant’s victim status. The applicant subsequently made submissions by letters of 9 June and 7 July 2010, which the Federal Prosecutor General by letters of 16 July and 3 September 2010 rejected as ill-founded. On 1 September 2010 the applicant’s legal representative limited his request for access to the investigation file, previously made on behalf of all the persons he was representing, to that of the applicant. On 3 September 2010 the applicant was granted access to the unclassified parts of the investigation file. A redacted version of the discontinuation decision was served on the applicant’s representative on 15 October 2010, two days after it was finalised. The applicant’s representative inspected the file at the Federal Prosecutor General’s office on 26 October 2010. (b) Motion to compel public charges 51. On 15 November 2010 the applicant filed a motion with the Düsseldorf Court of Appeal seeking that public charges be brought against the suspects or, in the alternative, that the competent public prosecutor continue investigating the matter with a view to determining their liability under the Criminal Code. He submitted, in particular, that certain additional investigative measures were required to comprehensively establish the objective circumstances of the air strike. 52. On 13 December 2010 the Federal Prosecutor General submitted his observations and moved for the motion to be dismissed as inadmissible for failure to comply with the formal requirements or, in the alternative, as ill-founded on the basis that the applicant’s submissions could not establish a sufficient ground for suspicion that the suspects were criminally liable. Refuting the applicant’s argument as to the alleged deficiencies of the investigation, he maintained that all necessary investigative measures which offered any prospect of success had been carried out. Moreover, even on the basis of the applicant’s factual submissions, there would not have been a breach of international humanitarian law. 53. On 16 February 2011 the Düsseldorf Court of Appeal dismissed the applicant’s motion to compel public charges as inadmissible. It considered that the applicant’s submission did not satisfy the formal requirements (see paragraph 99 below). The applicant had failed to discuss – to a sufficient extent or at all – some of the evidence, on which the Federal Prosecutor General’s discontinuation decision of 13 October 2010 was based and which was listed there. It was not clear from his submissions which pieces of evidence he had had, and which he had not had, access to. Contrary to his obligation to also present facts which may exonerate the suspects, the applicant had limited himself to presenting selected parts of certain pieces of evidence, in particular those which appeared to him to corroborate the accusations. Notably, he had not thoroughly discussed (i) the two-page statement given by Colonel K. to the Chief of Staff of 5 September 2009; (ii) the report of the military police of 9 September 2009; (iii) the minutes of the radio traffic between the pilots and Staff Sergeant W. immediately prior to the bomb release; or (iv) the video footage from the F-15 aircraft, and had not argued why the Federal Prosecutor General’s assessment of those pieces of evidence had allegedly been wrong. In so far as the applicant had submitted that the non-governmental organisation report, to which he had been granted access, had concluded that the air strike was unlawful and in breach of international humanitarian law, he had failed to state the key considerations that led to this assessment. The same held true for the applicant’s reference to the note of Brigadier-General V. of 4 September 2009. As a consequence, his factual submissions did not enable the Court of Appeal to determine, based on the applicant’s brief alone, whether there was sufficient ground for suspicion against the suspects and hence reason to bring public charges. The applicant had furthermore failed to offer suitable evidence, or any evidence at all, for a number of submissions incriminating the suspects, notably the allegation that the local informant had not been present at the sand bank, that the pilots of the F-15 aircraft had demanded further reconnaissance, that many civilians had been outside during the night of the air strike as it was Ramadan, and that the Taliban insurgents normally acted in groups of ten individuals or less. (c) Complaint of a breach of the right to be heard 54. On 28 March 2011 the applicant filed a complaint of a breach of the right to be heard ( Gehörsrüge ) in respect of the Court of Appeal’s order. He asserted that the Court of Appeal had taken its decision without having given him the opportunity to comment on either the Federal Prosecutor General’s observations or those of defence counsel. Moreover, it had not been foreseeable that he had to elaborate on his knowledge of specific pieces of evidence relied on by the Federal Prosecutor General and to present the essential content of those documents. The Court of Appeal should have advised him accordingly prior to dismissing his motion. In any event, requiring him to discuss each and every piece of evidence relied on by the Federal Prosecutor General would render the motion to compel public charges ineffective, given the scope of the file. 55. By order of 31 March 2011 the Court of Appeal dismissed the applicant’s complaint as ill-founded. The decision of 16 February 2011 had exclusively been based on the applicant’s submissions as such, in order to establish whether the formal requirements had been complied with. It had taken into account that he had been granted access to the investigation file in a limited manner. There had been no duty on the court to point out gaps in the applicant’s submissions, as the time-limit for the submission of the motion to compel public charges had expired and the formal defects could no longer be rectified. Proceedings before the Federal Constitutional Court 56. On 17 March 2011 and 27 April 2011 the applicant, represented by counsel, lodged constitutional complaints with the Federal Constitutional Court. The later complaint encompassed the earlier one and, in addition, challenged the Court of Appeal’s decision of 31 March 2011. In alleging that the criminal investigation had been ineffective, the applicant argued in particular that not all necessary investigative measures had been taken in order to comprehensively establish the objective circumstances of the air strike; neither the applicant, nor eyewitnesses, nor military experts had been examined with a view to determining whether the suspects could justifiably base their decision to order the air strike on the information available to them, and whether sufficient precautionary measures had been taken. The number of victims had not been established, nor had there been medical reports on the cause of death. Moreover, the applicant as the next of kin of two victims of the air strike had been insufficiently involved in the proceedings, in view of the limited and delayed access to the investigation file, the failure to be heard, the delay in the service of the Federal Prosecutor General’s discontinuation decision and the excessive admissibility requirements applied by the Court of Appeal. 57. On 8 December 2014 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication (no. 2 BvR 627/14) in so far as it concerned access to the investigation file. The applicant did not challenge this decision in the present application. 58. On 19 May 2015 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication (no. 2 BvR 987/11) in so far as it concerned the effectiveness of the criminal investigation, finding that it was, in any event, ill-founded. While the applicant had a right to an effective criminal investigation, both the discontinuation decision of the Federal Prosecutor General and the decision of the Düsseldorf Court of Appeal in respect of his motion to compel public charges had satisfied the respective requirements. 59. The discontinuation decision of the Federal Prosecutor General had neither misjudged the importance of the right to life and the resulting obligations of the State to protect it nor the requirement to carry out an effective investigation into deaths as defined by the case-law of the Federal Constitutional Court and of the European Court of Human Rights. The Federal Prosecutor General’s decision had described the investigations that he had carried out and concluded that there were insufficient indications to establish reasonable grounds for suspicion. That decision had mainly been based on the presumption that the suspects had been convinced, at the time of ordering the air strike, that the persons in the immediate vicinity of the fuel tankers were armed insurgents, which excluded the intent required for liability under Article 11 § 1 no. 3 of the Code of Crimes against International Law. That determination had not been arbitrary and thus did not warrant objections under constitutional law. 60. Additional investigatory measures, such as the examination of witnesses who had observed the air strike, would not have changed this. The bombing itself and the deaths of numerous civilians had never been in doubt. The key aspect of the decision to discontinue the investigation had been that it could not be proven that the suspects knew with certainty that the air strike would injure or even kill civilians. Neither that finding nor the investigations carried out to that end raised concerns under constitutional law. Lastly, the Federal Prosecutor General’s position – that he was also competent to investigate offences under the Criminal Code that might have been committed through the same act that led him to investigate offences under the Code of Crimes against International Law – was not arbitrary. 61. The Federal Constitutional Court further held that the Düsseldorf Court of Appeal’s decision of 16 February 2011 did not raise concerns under constitutional law either. The investigations that had been carried out and their documentation by the Federal Prosecutor General satisfied constitutional requirements. A subsequent review decision by a court thus could not result in a breach of the right to an effective criminal investigation. In this respect, it was not decisive whether the court had dismissed the motion to compel public charges as inadmissible or as ill-founded, as long as an examination of the challenged decision to discontinue the investigation could be discerned. The Court of Appeal had dismissed that motion as inadmissible, but the manner and the scope of the Court of Appeal’s reasoning showed that it had conducted a detailed examination of the Federal Prosecutor General’s discontinuation decision and the investigations documented therein. 62. Moreover, the Federal Constitutional Court found that the Court of Appeal’s decision had not misjudged the importance and scope of the applicant’s right to effective protection of his legal interests ( Grundrecht auf effektiven Rechtsschutz ). The requirements applied by the Court of Appeal in respect of the content of the motion to compel public charges did not raise concerns under constitutional law in this respect. As the applicant had, to a significant extent, based his motion seeking to compel public charges on the content of the investigation file, he had to provide the essential content of the pieces of evidence which he cited; otherwise the legislature’s intent that the competent court had to be able to examine the motion’s conclusiveness solely based on the brief itself would be undermined. A selective, or even distorted, representation of parts of a suspect’s account or of witness examinations could create an inaccurate image of the result of the investigation which could not easily be corrected. This might oblige the applicant to also submit information on circumstances which could exonerate a suspect. In the present case, the applicant had not satisfied these requirements. 63. Lastly, the Court of Appeal’s decision had not breached the applicant’s right to be heard. In this respect, the Federal Constitutional Court endorsed the reasons advanced by the Court of Appeal in its order of 31 March 2011. 64. The Federal Constitutional Court’s decision was served on the applicant’s counsel on 13 July 2015. Other investigations 65. After COMISAF learned of the air strike on the morning of 4 September 2009, he initiated an investigation. The so-called “Initial Action Team” arrived in Kunduz late that afternoon. The team was shown video footage from the F-15 aircraft and interviewed several members of PRT Kunduz, including Colonel K. The following day, it conducted an on-site investigation, visited a hospital and met with Afghan officials. In its report of 6 September 2009, it recommended further assessment of the events by a Joint Investigation Board. This board concluded its investigation on 26 October 2009 and published its findings in a second report (“COMISAF investigation report”). Both reports are classified “NATO-/ISAF-Confidential”. 66. By order of the President of the Islamic Republic of Afghanistan, an inquiry commission was sent to Kunduz on 4 September 2009 and interviewed witnesses of the air strike and secured evidence. Its final report was published on 10 September 2009 and concluded that the air strike had killed 99 persons, of whom 69 were insurgents and 30 civilians. In addition, both insurgents and civilians had been injured. The report further stated that the air strike had been directed at the insurgents and had succeeded in weakening the Taliban network. 67. The United Nations Assistance Mission in Afghanistan (UNAMA) collected information about possible victims of the air strike. It compiled a list with personal details of 109 deceased and 33 injured. In addition, it reported on the air strike in its annual report (UNAMA, Annual Report on Protection of Civilians in Armed Conflict 2009, January 2010), as follows: Air strike against hijacked oil tankers in Aliabad District, Kunduz Province “On 3 September, a group of Taliban hijacked two fuel tankers along the main Kunduz-Baghlan road. They tried to cross the Kunduz river towards Chahar Dara District, near to Omarkhel village in Aliabad District. The trucks got stuck in the river bed and when the insurgents failed to release them, the Taliban invited nearby villagers to collect the fuel. As the villagers were siphoning off the fuel, several hours later, in the early hours of the morning of 4 September, an air strike was conducted. Investigations were complicated as a result of the ensuring [ sic ] fireball, which incinerated a large number of people making identification extremely difficult. It is not disputed that some Taliban were at the site but it should have been apparent that many civilians were also in the vicinity of the trucks. According to UNAMA HR’s investigations, 74 civilians, including many children, were killed.” 68. The International Committee of the Red Cross (“ICRC”) also investigated the air strike from 5 September 2009 onwards and submitted a confidential report to ISAF on 30 October 2009. 69. On 16 December 2009 the German Parliament established a commission of inquiry to assess, inter alia, whether the air strike was in compliance with the mandate given by Parliament to the German armed forces, with the operative planning and with the applicable orders and rules of engagement. On 20 October 2011 the commission concluded its investigation and published its report. As to the number of victims of the air strike, it noted that different reports indicated between 14 and 142 deceased (14 to 113 civilians) and 10 to 33 injured persons (4 to 9 civilians). Regarding the question of compliance with the applicable orders and rules of engagement, it came to the conclusion that Colonel K. made certain procedural mistakes when ordering the air strike, and partially violated the applicable ISAF rules of engagement. Consequently, based on the information available to the commission, the air strike could not be considered proportionate and should not have been ordered. However, the commission also stated that Colonel K. acted at the relevant time to the best of his knowledge and to protect “his” soldiers. Therefore his decision to order the air strike was comprehensible. Civil proceedings for compensation 70. The applicant together with another individual lodged a civil action for compensation against the Federal Republic of Germany in connection with the killing of their relatives by the air strike of 4 September 2009. After the Bonn Regional Court had rejected the action and the plaintiffs’ appeal before the Cologne Court of Appeal had been to no avail, the Federal Court of Justice, by judgment of 6 October 2016, rejected as ill-founded the plaintiffs’ appeal on points of law. It left open the question whether Germany could be sued for extraterritorial military operations of the Bundeswehr under NATO operational command. However, it found, firstly, that the plaintiffs, as individuals, could not claim compensation from Germany for a breach of international humanitarian law based directly on international law; such right could, as a rule, only be exercised by their State. It found, secondly, that German law on State liability was not applicable to harm done to foreign citizens by the German armed forces in the framework of a deployment to an armed conflict overseas. Irrespective of this question of applicability, such a claim by the plaintiffs was ruled out in any event because there had been no breach of official duty by a German soldier or authority, notably no culpable breach of the rules of international humanitarian law by Colonel K. The Court of Appeal had not erred in law when it determined, basing itself on the facts established by the Regional Court, that the presence of civilians at the site of the air strike had not been objectively foreseeable for Colonel K. at the time of ordering the air strike, all feasible precautionary measures having been taken. The Federal Constitutional Court declined to consider the applicant’s constitutional complaint lodged in respect of these civil proceedings (file no. 2 BvR 477/17, order of 18 November 2020, delivered on 16 December 2020). | This case concerned the investigations carried out following the death of the two sons of the applicant – an Afghan national who lived in Afghanistan – in an airstrike near Kunduz, Afghanistan, in September 2009, ordered by a colonel of the German contingent of the International Security Assistance Force (ISAF) commanded by NATO, in which several people had been killed. The applicant alleged that the German State had not conducted an effective investigation into the airstrike in question. He also complained that he had not had an effective domestic remedy by which to challenge the decision of the German Federal Prosecutor General to discontinue the criminal investigation. |
471 | Preliminary ruling | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1964 and lives in Munich. He and Mr W. founded the T.AG, a directory enquiries service. The T.AG received, for a fee, the required subscriber information from DTAG. In 2007 and 2008 DTAG was ordered to refund the T.AG part of the fees paid, as they had been excessive. 7. In 2005 the applicant brought an action against DTAG, claiming that as a result of the excessive prices paid by the T.AG, he and Mr W. had had to reduce their shares in the company before its stock market launch. For that reason, as well as on account of a lower valuation of the company on the day of the launch, he had sustained damage. On 28 May 2013 the Regional Court dismissed the claim. 8. The applicant appealed against the Regional Court ’ s decision. In the reasons for the appeal, he made comments on, inter alia, EU law and the respective interpretation by the CJEU and the Federal Court of Justice. He did not request a referral of a particular question to the CJEU. During an oral hearing before the Court of Appeal the issue of EU law was discussed and the court explained that, in its view, the case-law of the CJEU was clear and that, in contrast to what had been suggested by the applicant, EU law was not applicable to the present case. In the same hearing the applicant called for the proceedings to be suspended and a preliminary ruling from the CJEU to be obtained. In submissions after the hearing he repeated his request and suggested the following wording for a possible preliminary question: “Does Article 86 TEC in the version of the Maastricht Treaty (Article 102 TFEU) preclude the interpretation and application of domestic legislation enacted by a member State which categorically excludes, for legal reasons, the liability of a dominant undertaking that damages a competing joint-stock company through its abusive prices in violation of Article 86 TEC (Article 102 TFEU), thus putting it at risk of bankruptcy, also for damage sustained by the founding shareholders of the damaged joint-stock company resulting from the fact that they take on new shareholders in order to avert bankruptcy, thereby reducing their own shares in the company?” 9. On 2 July 2014 the Court of Appeal dismissed the applicant ’ s appeal. In its reasoning the court stated, in particular, that his claim could not be based on EU law, as the applicant was not covered by the protective purpose of any of its provisions. In that regard, the court gave a detailed account of why the applicant ’ s legal opinion was not supported by the CJEU ’ s case ‑ law, to which it referred extensively. It also referred to the relevant case-law of the Federal Court of Justice. As regards the question of whether the applicant should be granted leave to appeal on points of law, the Court of Appeal stated: “There is no reason to grant leave to appeal on points of law pursuant to Article 543 § 2 of the Code of Civil Procedure ( Zivilprozessordnung ). The chamber ’ s reasoning on the legal question as to who is covered by the protective purpose of Article 86 TEC, Article 82 § 2 EC and Article 102 TFEU and who is consequently eligible for compensation within the meaning of Article 823 § 2 of the Civil Code ( Bürgerliches Gesetzbuch ) or section 33(1) of the Prevention of Restrictions on Competition Act ( Gesetz gegen Wettbewerbsbeschränkungen ), have no significance in terms of legal principle (no fundamental significance). There is no need to clarify the legal question raised, since there are no doubts concerning the scope and interpretation of those legal provisions. The plaintiff ’ s opinion that anyone suffering damage on account of a violation of competition law should be entitled to damages, regardless of the law ’ s protective purpose, is not shared by anyone in academic writing or case-law.“ 10. The applicant filed a complaint against the refusal of leave to appeal on points of law. In his complaint he repeated his request for a referral to the CJEU and suggested the wording for two questions, one of them being a slightly modified version of the previously suggested question: “Does Article 86 TEC in the version of the Maastricht Treaty (Article 102 TFEU) preclude the interpretation and application of domestic legislation enacted by a member State which categorically excludes, for legal reasons, the liability of a dominant undertaking that damages a competing joint-stock company in violation of Article 86 TEC (Article 102 TFEU), thus putting it at risk of bankruptcy, also for damage sustained by the shareholders of the competing joint-stock company resulting from the fact that they take on new shareholders in order to avert bankruptcy, thereby reducing their own share of the company? ... Does Article 86 TEC (Article 102 TFEU) preclude the interpretation and application of domestic legislation enacted by a member State as laid out in the first question for referral if the damaged shareholders are founding shareholders (investors) who, at the time of the damaging event, have a significant shareholding and, as members of the company ’ s executive board, decisively shape the company ’ s competitive conduct?” 11. On 14 April 2015 the Federal Court of Justice rejected the applicant ’ s complaint: “... because the legal matter [had] not [been] of fundamental significance, because the complaints based on violations of procedural rights [had] failed to convince and because neither the further development of the law nor the interests in ensuring uniform adjudication [had required] a decision to be issued by the court hearing the appeal on points of law (Article 543 § 1 of the Code of Civil Procedure). More detailed reasoning can be dispensed with pursuant to the second clause of the second sentence of Article 544 § 4 of the Code of Civil Procedure.” 12. The applicant filed a complaint concerning a violation of his right to be heard ( Anhörungsrüge ) and argued that the Federal Court of Justice had not provided adequate reasoning for the refusal of a referral to the CJEU. On 18 May 2015 the Federal Court of Justice rejected the applicant ’ s complaint, stating that it had examined his submissions but had not considered them sufficiently convincing and that a decision by a court of last resort had not required more detailed reasoning. 13. On 25 February 2016 the Federal Constitutional Court declined to consider a constitutional complaint (1 BvR 1410/16) lodged by the applicant, without providing reasons. | This case concerned civil proceedings, during which the applicant requested a referral to the Court of Justice of the European Union. The applicant complained about the German courts’ refusal to refer questions to the Court of Justice for a preliminary ruling and of a failure to provide adequate reasoning for that refusal. |
974 | Internet | 2. The applicant was born in 1959 and lives in Genappe. He was represented by Mr A. Berenboom, lawyer. 3. The Belgian Government (“the Government”) were represented by their Agent, Ms I. Niedlispacher, of the Federal Justice Department. BACKGROUND TO THE CASE 4. The applicant is the publisher of the newspaper Le Soir, one of Belgium’s leading French-language newspapers. 5. In a 1994 print edition of the newspaper an article reported, among other items, on a car accident caused by G. that had led to the death of two people and injured three others. The article mentioned G.’s full name. G. was convicted in connection with the incident in 2000. He served his sentence and was formally rehabilitated in 2006. 6. Since 13 June 2008 the newspaper’s website has provided an electronic version of its archives dating back to 1989, including the above ‑ mentioned article. When the archives were published online, and throughout the proceedings before the domestic courts, the articles were freely accessible on the website. 7. On 15 June, 7 July and 19 August 2010, G. wrote to the legal department of the public limited company Rossel et Compagnie, which owned Le Soir, requesting that the article be removed from the newspaper’s electronic archives or at least rendered anonymous. In support of his request G. referred to the fact that he was a doctor and that the article appeared on the list of search results when his name was typed into several search engines. 8. On 24 January 2011 the legal department of Rossel et Compagnie refused to remove the impugned article from the archives, but stated that it had given notice to the administrator of the search engine Google to delist the article. A reminder was sent to the administrator of Google on 23 February 2011. Before the domestic courts, the applicant stated that these steps had produced no response. The Court has not been informed of any subsequent follow-up action. 9. On 30 March 2012 G. brought the case before the Council for Journalistic Ethics ( Conseil de déontologie journalistique – “the CDJ”), the self-regulatory body of the French and German-speaking media in Belgium. 10. On 18 April 2012 the CDJ declared the request inadmissible on the grounds that the dispute did not concern a matter of journalistic ethics. It pointed to the solutions that had been adopted by Belgian newspaper publishers with regard to electronic press archives, namely the right to rectification (in cases where the information was inaccurate) and the right of electronic communication (in cases where the information was incomplete). DOMESTIC COURT PROCEEDINGS 11. In a summons served on 24 May 2012 G. instituted proceedings against the applicant in the Neufchâteau Court of First Instance, seeking to have the online press archive in question anonymised on the basis of Article 1382 of the Civil Code. In the alternative, should the applicant actually provide irrefutable technical evidence of the impossibility of making the information anonymous, G. sought an order requiring him to add a “no-index” tag to the online version of the article to prevent it from appearing on the list of results when his name was typed into the search engine of the newspaper’s website. In G.’s view, by keeping the article online without anonymising it or adding a no-index tag, despite receiving a reasonable and substantiated request to that effect, the applicant had committed a fault and had infringed G.’s right to be forgotten. 12. In a judgment of 25 January 2013 the Court of First Instance allowed most of G.’s claims. Noting that the applicant had not adduced any evidence of the impossibility of anonymising the article, the court ordered him to replace G.’s first name and surname by the letter X in the digital version of the article featured on the newspaper’s website and on any other database for which he was responsible. The applicant was ordered to pay one euro to G. in respect of non-pecuniary damage and to pay G.’s costs. The court rejected the requests for an anonymised version of the judgment to be sent to the parties and to possible third parties and for the judgment to be declared immediately enforceable. 13. In a judgment of 25 September 2014 the Liège Court of Appeal upheld the lower court’s judgment in its entirety. The Court of Appeal began by pointing out that each of the parties had fundamental rights that were not absolute and were of equal ranking. 14. As to the criterion of lawfulness required in order to derogate from the principle of freedom of expression, the Court of Appeal noted that the right to be forgotten was considered an integral part of the right to respect for private life as enshrined in Article 8 of the Convention, Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution. That was sufficient to satisfy the lawfulness test in order to derogate from the principle of freedom of expression. The Court dismissed the applicant’s argument that Article 1382 of the Civil Code did not provide a clear and foreseeable legal basis. The provision in question constituted the ordinary rules on liability and was applicable to news organisations, which could not be unaware that they might be held liable if the exercise of press freedom caused damage resulting from an infringement of the rights of others. As the Court of First Instance had observed, Articles 1382 et seq. of the Civil Code, as interpreted by the Belgian legal literature and case-law, constituted legislation that was sufficiently accessible, clear, precise and foreseeable for the purposes of Article 10 § 2 of the Convention. 15. The Court of Appeal added that, alongside the traditional aspect of the right to be forgotten linked to the fresh disclosure by the press of a person’s previous convictions, there existed a second aspect linked to the erasure of the digital data, and in particular the data available on the Internet. The dispute, which concerned the digitisation of journalistic archives, related to the latter aspect, namely the right to be forgotten online. What was sought, therefore, was the removal of information available on the Internet. This right to be forgotten online had recently been established by the Court of Justice of the European Union (“the CJEU”) in its judgment in Google Spain and Google (C-131/12, 13 May 2014; see paragraphs 41 ‑ 45 below). The CJEU had held that the requirement regarding fresh disclosure of the information could be inferred from the effect of the search tool, which gave prominence to information that would not otherwise be visible online. It was true that the CJEU judgment concerned a dispute between a private individual and the operator of a search engine. Nevertheless, the principles established by that judgment could be transposed to the case at hand in so far as the publisher had also enabled the article in question to be given prominence via the search engine of the newspaper’s website, which was accessible free of charge. The effect had also been multiplied significantly by the development of the operating software used by Google-type search engines. The indexing of the article on search engines was only possible because it was present in the database of Le Soir in non-anonymised form and without any no-index tag. 16. The right to be forgotten online was not unlimited and had to be regulated in so far as it was liable to come into conflict with the freedom of expression of the press. In order to assess whether a balance had been struck between the fundamental rights enshrined, inter alia, in Articles 8 and 10 of the Convention, it was necessary to have regard to the criteria defined in the Court’s case-law ( Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, ECHR 2012) and the case-law of the CJEU ( Google Spain and Google, cited above). Thus, in order for a right to be forgotten to be recognised, the facts had to have been disclosed lawfully in the first place and had to be of a judicial nature; there could be no current interest in their disclosure; the facts could not be of historical interest; a certain time had to have elapsed between the two disclosures; and the person concerned could not be a public figure, had to have an interest in being reintegrated into society, and had to have discharged his or her debt. The Court of Appeal’s task in the case before it was to ascertain whether, in the light of these criteria, the restriction on press freedom stemming from G.’s request pursued a legitimate aim and satisfied the proportionality test, in conformity with Article 10 § 2 of the Convention. 17. In the instant case the Court of Appeal found that it was not disputed that the original disclosure of the information in question had been lawful and that the facts reported on had been of a judicial nature. The fresh disclosure of the facts had no value in terms of newsworthiness. G. did not hold any public office: the mere fact that he was a doctor in no way justified his continued identification in the online article some twenty years after the events. The court considered this to be illegitimate and disproportionate, since it did not add anything to the value of the article and was liable to cause indefinite and serious harm to G.’s reputation by giving him a “virtual criminal record”, despite the fact that he had not only served his sentence after a final conviction for the offence but had also been rehabilitated. Twenty years after the events, the identity of a person who was not a public figure did not enhance the public interest of the article, which merely contributed at a statistical level to a public debate on road safety. 18. In the Court of Appeal’s view, removing G.’s first name and surname did not render the information devoid of interest since it would have no impact on the actual substance of the information conveyed, which concerned a tragic road traffic accident caused in particular by the harmful effects of alcohol. The applicant’s arguments concerning the duty of remembrance and the need to preserve a full and faithful record in the archives were irrelevant. G. had not requested that the impugned article be removed from the archives, but simply that the electronic version be rendered anonymous; the paper archives remained intact and the applicant was still able to ensure the integrity of the original digital version. 19. The events reported on in the article were clearly not of historical significance, as the article related to a banal – albeit tragic – news story which was not alleged, still less demonstrated, to have been a source of particular public concern. 20. Lastly, a significant length of time (sixteen years) had elapsed between the initial publication of the article and the first request for anonymisation; some twenty years had passed by the time of delivery of the judgment. 21. It followed from all these considerations that G. satisfied the criteria for claiming a right to be forgotten, and that keeping the article in question online without rendering it anonymous was liable to cause him disproportionate harm when weighed against the benefits of strict observance of the applicant’s right to freedom of expression. The criteria of lawfulness, legitimacy and proportionality arising out of Article 10 § 2 of the Convention were satisfied in the Court of Appeal’s view. 22. The request for anonymisation had been apt to ensure a proper balance between the interests at stake. That balance would not be achieved by the establishment of a right to digital rectification or communication as proposed by the applicant. Such procedures would not be appropriate as they would allow the stigmatising effect of the serious offences committed by G., and of the sentence he had already served, to persist indefinitely and would render the rehabilitation order given in his favour meaningless. Hence, the most effective means of protecting G.’s privacy without interfering to a disproportionate extent with the applicant’s freedom of expression was to anonymise the article on the website of Le Soir by replacing G.’s first name and surname with the letter X. 23. In the Court of Appeal’s view, by refusing to accede to the request to anonymise the article, the applicant had not acted in the way that any prudent and diligent publisher would act in the same circumstances. That refusal constituted a fault. A simple search using G.’s first name and surname in the search engine on Le Soir ’s website or on Google immediately brought up the article. That was undoubtedly a source of damage to G., at least of a non-pecuniary nature. Such a situation made knowledge of his previous conviction easily accessible to a wide audience and was thus liable to stigmatise him, seriously damage his reputation and prevent him from reintegrating into society normally. A causal link between the fault and the damage sustained had also been established. 24. Acceding to G.’s request did not confer on each and every individual a subjective right to rewrite history, nor did it make it possible to “falsify history” or impose an “excessive burden of responsibility” on the applicant. The Court of Appeal was called upon to determine a specific dispute between two parties in the context of a one-off civil action for damages based on Article 1382 of the Civil Code while seeking to ensure that a balance was struck between two fundamental rights claimed by the parties. 25. The applicant further argued before the Court of Appeal that the way in which the database of Le Soir worked meant that it was not possible to alter archived articles and thus to replace G.’s name with the letter X. The Court of Appeal noted that, in support of his claims, the applicant had submitted a report drawn up by the newspaper’s technical department. However, the court considered that the report in question, which had been prepared after the applicant had been given notice to appear, by technicians who were in a relationship of dependency with the applicant, did not provide any guarantees of impartiality and had no probative value. Moreover, the report did not state that it was actually impossible to implement the measure requested, but simply referred to the risks and costs. The only reference to impossibility concerned the “physical impossibility of withdrawing the newspapers that [had] been sold, the collections that [had] been distributed, and the numerous copies of the content available in physical and digital format in the public domain”, something that had not been requested. 26. The applicant appealed on points of law. In one of his grounds of appeal he alleged a violation of Article 10 of the Convention. In particular, he argued in the first limb of the ground of appeal that the fault he had allegedly committed consisted in disregarding a subjective right, namely the right to be forgotten, although that right was not enshrined either in clear, precise and accessible domestic legislation or in a higher-ranking international rule, but was derived solely from the legal literature and case-law. Hence, in the applicant’s view, the Court of Appeal judgment had breached the requirement that the interference be lawful. In the second limb of the ground of appeal the applicant contended that the order for him to alter in the online archives the content of an article that had been published in the past and was available in the paper archives amounted to unjustified interference with his freedom of expression, in breach of Article 10 of the Convention. 27. In a judgment of 29 April 2016 the Court of Cassation dismissed the appeal on points of law. It found that the first limb of the ground of appeal, arguing that the Court of Appeal had based the right to be forgotten online on the legal literature and case-law, failed on factual grounds. The Court of Cassation held as follows: “... It follows [from] the reasoning [of the Court of Appeal judgment], firstly, that the judgment under challenge regards the right to be forgotten online as an ‘intrinsic component of the right to respect for private life’ (and indeed states so), and views such interference with the right to freedom of expression as may be justified in order to protect that right as being based not on the legal literature and case-law – which the judgment does not recognise as having general regulatory scope – but on Article 8 of the [Convention], Article 17 of the International Covenant on Civil and Political Rights and Article 22 of the Constitution; and, secondly, that it refers to the judgment of the Court of Justice of the European Union only to lend support to its view on the scope of that right to be forgotten.” 28. As to the second limb, the Court of Cassation held that the right to respect for private life, which encompassed the right to be forgotten, might justify interference with the right to freedom of expression. The digital archiving of an old press article which, at the time it was printed, had lawfully reported on past events that were now covered by the right to be forgotten was not exempt from possible interference with the right to freedom of expression in order to protect the right to be forgotten. Such interference might consist in altering the archived text so as to prevent or make good a breach of the right to be forgotten. The Court of Appeal had ruled lawfully that the online archiving of the article in question had amounted to a fresh disclosure of G.’s previous conviction that was liable to infringe his right to be forgotten. The Court of Appeal had subsequently weighed up the rights of the parties and had provided legal justification for its ruling that the applicant, by refusing to accede to the request for the article to be anonymised, had committed a fault. It had therefore lawfully ordered him to replace G.’s first name and surname with the letter X on the website of Le Soir. Accordingly, the second limb of the ground of appeal had to be dismissed. 29. It appears that the article in question is still available on the newspaper’s website, but is accessible only to subscribers. It is accompanied by a notice referring to the relevant judicial decision. | This case concerns a civil judgment against the applicant, in his capacity as publisher of the daily newspaper Le Soir, ordering him to anonymise an article in its electronic archive which mentioned the full name of a driver who had been responsible for a deadly road accident in 1994. The order was based on the individual’s right to be forgotten. |
808 | Legal capacity | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1971 and lives in Naujoji Akmenė. 6. In November 19 8 9 he started military service in the armed forces of the Soviet Union. Medical records dated 20 June 1990 drafted by a panel of doctors in his military unit in Riazan ( Russia), stipulated that at that time he had problems communicating with others and was autistic, though he had a normal memory and level of intelligence. He was diagnosed with sluggish schizophrenia, which he had developed during military service. On those grounds, he was released from military service. 7. Having returned from the army to Lithuania, by 2005 he had been treated in psychiatric institutions no less than fifteen times. In 2004 he was diagnosed with residual and then paranoid schizophrenia. 8. In February 2006 the applicant attempted suicide by setting himself on fire. He was admitted to the trauma unit of a hospital. 9. In reply to a prosecutor ’ s request for information, on 1 4 November 2006 the Akmenė District Psychiatric Health Centre ( Akmenės rajono psichikos sveikatos centras ) confirmed that the applicant had been attending there since 1999, and continued to be treated there for schizophrenia. In 2004 episodes of the applicant ’ s illness became more frequent. That year the applicant attempted to commit suicide; he did not accept that he was ill. He was admitted to the Šiauliai Psychiatric Hospital ( Šiaulių psichiatrijos ligoninė ), where he spent about a month before being released for outpatient care at his own request. Since July 2005 the applicant stopped attending the Akmenė District Psychiatric Health Centre and taking his medication, because he firmly refused any consultations with the psychiatrists. He would also submit numerous complaints to various authorities. 10. On 24 November 2006 the applicant ’ s mother asked a prosecutor to initiate proceedings with a view to her son being declared legally incapacitated. According to her, his mental illness started when he was in the Soviet army. She and her husband lived in a house separate from him in neighbouring Akmenė. By 2006 the applicant ’ s condition reached such a stage that he was afraid to leave his apartment or let his parents in, and he did not take care of himself. He even attempted to take his own life by setting himself on fire. 11. On the same day, the prosecutor sent the request by the applicant ’ s mother to the Akmenė District Court, together with an extract from the applicant ’ s medical records. It was noted that his schizophrenia had worsened and that he had become a danger to himself. He was thus in need of help from others. It was indispensable to ascertain whether there was a basis for declaring him legally incapable, if psychiatrists established that he could not understand or control his actions. The prosecutor relied on Articles 2.10, 3.242 § 1 and 3 of the Civil Code, Articles 135, 462-465, 491 ‑ 493 of the Code of Civil Procedure, and Article 19 of the Law on Prosecution Service. 12. By a ruling of 29 November 2006 the Akmenė District Court ordered an expert examination to ascertain ( i ) whether the applicant was suffering from mental illness, (ii ) whether he could understand his actions and (iii ) whether he could take part in court proceedings. His mother was to be informed of that decision. 13. Having examined the applicant in person and scrutinised his medical records, on 8 January 200 7 a psychiatrist concluded that he suffered from paranoid schizophrenia. He was also very mistrusting and had strong feelings of persecution. Psychiatrists took into account the letters by his mother to the Akmenė District Psychiatric Health Centre and the prosecutor to the effect that the applicant did not take care of his daily needs, and had social and health issues and suicidal thoughts. The psychiatrist thus established that the applicant could not correctly understand or control his actions, and noted that he “could not take part in court proceedings, could not be questioned, and court documents could not be served on him”. 14. In a one page form sent to the Akmenė District Court on 29 January 2007, Akmenė District social services ticked a box to say that they “ agreed ” with the prosecutor ’ s request for the applicant to be declared incapacitated. They also indicated that they would not take part in the court hearing, which was scheduled for 31 January 2007. 15. On 23, 24, 25 and 30 January 2007 attempts were made by the Akmenė District Court to personally serve the applicant with the summons concerning the forthcoming hearing for his legal incapacitation and care. The copy of the summons indicated that it had not been served because, according to his next door neighbour, the applicant was mentally ill and opened the door to no one. 16. At a public hearing on 31 January 2007 the Akmenė District Court, relying on Articles 465-468 of the Code of Civil Procedure, granted the prosecutor ’ s request for the applicant to be declared incapacitated, on the grounds that he could not understand or control his actions. The prosecutor and the applicant ’ s mother were in attendance. The applicant ’ s mother testified about her son ’ s history of mental illness. She also stated that he had recently been living away from his parents, but could not take care of himself, did not pay maintenance fees for his apartment, and would not go out or take his medication. The ruling stipulated that it could be appealed against within thirty days. 17. The Government submitted that, given the fact that it had not actually been possible to serve the summons on the applicant, the decision of 31 January 2007 had only been sent to the interested parties in the case, that is to say the applicant ’ s mother, the prosecutor and social services. 18. On 5 February 200 7 the applicant drafted what appears to be a response to the prosecutor ’ s request of 24 November 2006 to incapacitate him. Therein he mentions that he received a copy of the prosecutor ’ s request on 30 January 2007. The letter appears essentially to be a complaint about his treatment in psychiatric hospitals and diagnosis with schizophrenia. He concludes by stating that because of obvious forgery of his medical examination results and clear bias on the part of the prosecutor, the applicant refused to undergo medical examination in Lithuania. A stamp on the letter indicates that it was received by the Akmenė District Court on 5 February 2007. 19. Having established that the applicant was legally incapacitated, by a ruling of 6 March 2007 the Akmenė District Court appointed the applicant ’ s mother as his guardian and the administrator of his property. The decision was taken at a public hearing in which she, a prosecutor and a representative from social services took part. The ruling stipulated that the applicant had not taken part because of ill- health. 20. The applicant was forcibly admitted to the Šiauliai Psychiatric Hospital on 9 March 2007, after showing signs of agitation and behaving aggressively towards his parents. The police and some firemen had to break down the door of his apartment to get to him. On 11 March 2007 he consented to treatment until 13 March 2007, when he refused any further treatment in writing. 21. On 13 March 2007 the Šiauliai Psychiatric Hospital asked the State Guaranteed Legal Aid Service (“the Legal Aid Service”) to provide legal aid to the applicant, who was to be forcibly hospitalised. It was granted the same day, and a lawyer was appointed to represent him. Later that day, in the presence of a psychiatrist and the appointed lawyer, the Šiauliai District Court granted a request by the psychiatric hospital for the applicant to be forcibly hospitalised. The court noted that the applicant was absolutely uncritical of his own behaviour, and that his state of mind at that time meant that he posed a danger to himself and others. The ruling was final and not appealable. It indicated that on 31 January 2007 the applicant had been declared legally incapacitated, and that on 6 March 2007 his mother had been appointed as his guardian. 22. The Government submitted to the court an extract from the applicant ’ s medical records, which indicated that he had been at the Šiauliai Psychiatric Hospital from 9 March until 22 June 2007. The doctor indicated in that record that a copy of the court ruling of 13 March 2007 had been given to the applicant. It is not clear when that was done. The Government submitted that the court decision of 13 March 2007 had been handed to the applicant by his treating doctor on 15 March 2007. 23. On 6 April 2007 the applicant signed a document certifying that his treatment plan from the Šiauliai Psychiatric Hospital had been explained to him and that he agreed to follow it. 24. Having been released from the psychiatric hospital, on 26 November 2008 the applicant approached the Legal Aid Service. In his application he wrote that by a ruling of 31 January 2007 he had been declared legally incapacitated, and that he would need the time-limit for appealing against it to be renewed. He also indicated that in March 2007 his mother had been appointed his guardian and the administrator of his property. He noted that he had not known about the two decisions until 9 March 2007, upon his admission to the Šiauliai Psychiatric Hospital. He also expressed a wish to appeal against them. 25. On 31 December 2008 the Legal Aid Service refused the request as having no prospect of success. It noted that the applicant fell into the category of people entitled to legal aid; however, given that the proceedings for his incapacitation had been terminated, his request for legal aid was clearly irrelevant. 26. The Legal Aid Service noted that the decisions the applicant wished to challenge had been taken in January and March 2007. Given that he had not requested legal aid until 28 November 2008, he had missed the deadline for appeal against those decisions. Representing him in such proceedings would have had no prospect of success. 27. As to the appointment of the applicant ’ s mother as his legal guardian, the Legal Aid Service indicated that he had given no grounds for doubting her ability to perform her duties as guardian and the administrator of his property. Lastly, it observed that guardianship could be revoked at the request of a prosecutor or social services. Given that the applicant himself could not apply to the court with such a request, there was no legal basis for providing him legal assistance. 28. On 15 December 2008 the applicant requested that the Akmenė District Court give him a copy of the court rulings regarding his incapacitation and the appointment of his legal guardian. 29. On 16 December 2008 a judge of the Akmenė District Court wrote to the applicant informing him that those court rulings would not be given to him, because his mother had been appointed as his legal guardian and the administrator of his property. 30. In their observations on the admissibility and merits of the case, sent to the Court on 2 May 2012, the Government noted that at that time the applicant had lived separately in his own apartment. He had been unemployed but had received disability pension. His guardian had helped him with daily chores. He had also received regular outpatient treatment at the Akmenė District Psychiatric Health Centre. 31. On 13 August 2014 the applicant complained to the Šiauliai prosecutor ’ s office that in 2004 he had been forcibly admitted to the Šiauliai Psychiatric Hospital and made to undergo medical treatment. The applicant asked that a pre-trial investigation be opened regarding his allegations. 32. By a final ruling of 11 November 2014, the Šiauliai Regional Court held that the applicant ’ s complaints about events in 2 004 were unfounded. | The applicant, who had a history of mental illness, complained that he had been deprived of his legal capacity without his participation or knowledge and that, as an incapacitated person, he had then been unable to himself request that his legal capacity be restored. |
114 | Domestic violence / abuse | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1929 and lives in Ylöjärvi. 6. On 20 July 2000 she took her daughter's son to a doctor. The boy was three years old at the time. 7. According to the doctor's report, the applicant said that she had noticed a bruise on the boy's back which might have been caused by a blow, and that his behaviour had been abnormal since he had visited his father, T. The applicant had strong suspicions that the injuries were consistent with physical violence. Furthermore, it was written in the report that the applicant had informed the doctor that the boy had said that the bruise had been caused by a punch. The applicant further stated that in January 2000 she had noticed signs of violence for the first time, but that T. had explained that the boy had fallen down the stairs. The doctor wrote in his report that the bruise noted on the boy's back was consistent with a punch, thereby supporting the boy's account, given also to the doctor, that he had been hit by his father. 8. Later the same day, the doctor reported the alleged violence to the child welfare authorities, although the applicant had objected to a report being made. 9. On 17 August 2000 T. requested the police to investigate whether the applicant had committed an offence by alleging that he had hit his son. He maintained that he had never struck the boy. On 22 August 2000 he further requested the police to investigate whether the applicant had committed an offence, such as deprivation of liberty, by taking the boy to a doctor. 10. On 26 April 2001 the public prosecutor preferred charges against the applicant for defamation without better knowledge ( ei vastoin parempaa tietoa tehty herjaus, smädelse dock icke emot bättre vetande ). According to the charge, the applicant had given information to the doctor implying that T. had struck his son. The doctor had been given to understand that T. had struck the boy on several occasions, most recently during the previous weekend. The applicant did not have reasonable grounds to support her allegation. On 21 May 2001 T. joined the proceedings and claimed compensation from the applicant for non-pecuniary damage amounting to 10,000 Finnish marks (FIM, about 1,682 euros (EUR)) and reimbursement of his legal expenses. 11. On 24 August 2001 the Tampere District Court ( käräjäoikeus, tingsrätten ) held an oral hearing. In its judgment the court held that it remained unclear whether the applicant had implied that the boy had been hit by his father or whether the doctor's report merely recorded his own impression based on his discussion with the applicant and the child. Applying the principle in dubio pro reo, the court rejected the charge. The presiding judge, however, dissented, finding the applicant guilty of defamation without better knowledge. She noted that, taking the facts as presented, there were no reasonable grounds to support the belief that T. had struck the boy. She further found that the boy's own statement could not as such be considered a reasonable ground, especially given the fact that it was not known whether the applicant had discussed the bruise with him before visiting the doctor. 12. T. appealed to the Turku Court of Appeal ( hovioikeus, hovrätten ). On 20 February 2002, after an oral hearing, the Court of Appeal overturned the District Court's judgment and convicted the applicant of defamation committed without better knowledge. No fines or other penalties were imposed, but the applicant was ordered to pay compensation for non-pecuniary damage amounting to EUR 504.56 and legal costs of EUR 2,861.11. It reasoned: “At the hearing [the applicant] and [the doctor] have essentially given the same account of the events as before the District Court. [The applicant] has, however, stated that having noticed the bruise on the child's back on the evening before the visit to the doctor's, she asked the boy where it had come from and he said that his father had hit him. According to the doctor, the applicant had provided the preliminary data, which he had first written down on paper. Later they had been recorded in the medical report based on his dictation. He had dictated the information immediately after the applicant and the child had left the room. The report did not contain any conclusions reached by the doctor himself. On the basis of the doctor's testimony and the case record, it has been proved that the applicant intentionally, albeit without better knowledge, said that [the father] was guilty of having struck his three-year-old son in such a way that she in fact gave the doctor to understand that the father had struck his son during the weekend preceding 20 July 2000. However, the Court of Appeal finds that it has not been shown that the applicant gave the doctor to understand that the father had struck his son at other times. As described above, the applicant had discussed the bruise with the boy. The boy may also have heard the applicant make her preliminary statement at the doctor's before the doctor spoke to him. Having regard to this and the boy's age, the mere fact that he told the doctor that his father had hit him cannot be considered to be significant enough to constitute reasonable grounds for the allegation. Nor has the applicant presented any other such reasons for the allegation on the basis of which she could be considered to have had reasonable cause to believe her insinuation to be true. On the above grounds, the Court of Appeal considers that the applicant is guilty of defamation without better knowledge. According to the doctor, the applicant had been worried about the child's condition and he considered that the visit had been justified. Having regard to the circumstances, it was forgivable that the applicant, in whose care the child had been, had not thoroughly weighed what she had told the doctor. For these reasons the Court of Appeal does not impose a sentence, in accordance with Chapter 3, Article 5, subsection 3 (2) [of the Penal Code]. ” 13. The applicant sought leave to appeal from the Supreme Court ( korkein oikeus, högsta domstolen ). She argued that the right to freedom of expression was violated if a person could not rely on the account of a child who had visible signs of injury or discuss his or her own impressions of the facts with a doctor, who was bound by professional secrecy, without being afraid of later being found guilty of defamation. 14. On 17 December 2002 the Supreme Court refused leave to appeal. III. INTERNATIONAL MATERIALS 23. According to Article 19 of the United Nations Convention on the Rights of the Child (1989; yleissopimus lapsen oikeuksista, konventionen om barnens rättigheter; SopS 60/1991) – ratified by all members of the Council of Europe – provides: “1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.” 24. In its concluding observations (CRC/C/15/Add. 272) of 20 October 2005 on the third periodic report of Finland (CRC/C/129/Add.5) the United Nations Committee on the Rights of the Child shared the concern of the Parliamentary Ombudsman of Finland that violence against children and sexual abuse within families were among the most serious obstacles to the full implementation of children's rights in Finland. In the light of Article 19 of the Convention, the Committee recommended that Finland, inter alia, strengthen awareness-raising and education campaigns with the involvement of children in order to prevent and combat all forms of child abuse and also strengthen measures to encourage reporting of instances of child abuse, including for children in alternative care, and to prosecute the perpetrators of these acts. | This case concerned a grandmother’s conviction for defamation of her son-in-law after she had taken her three-year-old grandson to a doctor and voiced a suspicion that he might have been hit by his father. |
1,058 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. general background 6. The applicants were at all relevant times building societies within the meaning of the Building Societies Act 1986. Building societies operate under the status of “mutual societies” under English law as opposed to the status enjoyed by companies under company law. A building society’s members are made up of its investors who deposit savings with it and receive a rate of interest or a dividend in return, and its borrowers who are charged interest on their loans. By and large, loans are taken out by borrowers to buy private residential property. A. The income-tax liability of investors 7. Investors with a building society are liable to pay income tax in respect of the interest earned on their deposits. The income tax owed to the Inland Revenue for the purposes of the fiscal year running from 6 April of one year to 5 April of the following year was in practice calculated or measured with reference to a period of equal length preceding the actual fiscal year. The so-called “measurement principle” required that the period measured be always equal in length to the period taxed. The taxpayer was not in fact taxed on the income of the preceding year but assessed to tax on the income received in the current year, the amount of the current year’s income being artificially computed by reference to the income of the previous year. Accordingly, in normal circumstances, individual investors with building societies would be obliged to declare in their tax returns for the fiscal year in question the amount of interest or dividends earned on their deposits in a preceding reference period of equal length to the fiscal year, and the Inland Revenue would have to make individual assessments to tax on the strength of the information supplied by the investor. B. The voluntary arrangements for discharging investors’ tax liability 8. However, in view of the very large number of building society investors, many of whom had only modest savings and were thus only liable to small amounts of income tax, or to no tax at all, it had for many years up to and including the fiscal year 1985/86 been the practice for the Inland Revenue to make voluntary arrangements with building societies for the payment by each society of a single annual composite amount. The effect of this payment by a building society was to discharge its investors’ liability to income tax at the basic rate on the interest which they earned. These arrangements, which were for very many years operated on a non-statutory basis, were at the relevant time given statutory recognition under section 343 (1) of the Income and Corporation Taxes Act 1970 – “the 1970 Act”. 9. The composite-rate payment under the voluntary arrangements was calculated for each fiscal year by reference to the global amount of interest paid by the society to its investors. However, in order to reflect the fact that some of the investors would not have been liable to tax at all given the modest amounts of their savings (see paragraph 8 above) a reduced rate of tax was applied. For this reason the annual payments made under this scheme were known as “reduced-rate tax” or “composite-rate tax”, or “CRT”. 10. The amount paid to investors by way of interest on their investments took account of the fact that their liability to income tax was discharged by the building society via the payment of CRT to the Inland Revenue. Investors thus received their interest net of tax. C. Setting the rate of CRT and the revenue-neutrality principle 11. In accordance with the “revenue-neutrality” principle, set out in section 26 of the Finance Act 1984, the CRT payment reflected only the amount which would have been paid by the investors themselves had they been obliged to declare and pay tax on the interest they earned through their deposits. 12. To achieve this, the Treasury, following negotiations with the Building Societies Associations, set each year, by statutory instrument, the CRT rate. In doing so, it was required to aim at a result whereby the same amount of tax was collected at source from building societies for the fiscal year in question as would have been collected from the individual depositors had they been taxed directly on the interest they received over a preceding reference period (see paragraphs 7 above and 13 below). D. The prior-period system and the accounting-year period 13. Until 1985/86, a “prior-period” system applied in respect of CRT. The amount of CRT to be paid by each building society for each fiscal year (see paragraph 12 above) was calculated by reference to the interest which it paid to its investors not during the actual year being taxed, but during the society’s own twelve months’ accounting period ending within that fiscal year. The tax was in every case paid on or around 1 January of the year of assessment. As noted above (see paragraph 8 above), the legal effect of this payment representing income tax was to discharge investors’ basic-rate liability on the interest earned in the year being taxed. 14. There was no legal requirement to have a harmonised accounting period. Different time frames were used by different building societies, but in all cases the time frames represented a period equal in length to the fiscal year, having regard to the requirements of the measurement principle (see paragraph 7 above). The following accounting periods were operated by each of the applicant societies: – the Leeds: 1 October to 30 September; – the National & Provincial: 1 January to 31 December; – the Yorkshire: 1 January to 31 December. Thus, on or around 1 January 1986, the three applicant societies paid to the Inland Revenue, to discharge their investors’ liability to income tax at the basic rate for the fiscal year 6 April 1985–5 April 1986, sums measured by reference to the interest paid to their investors in their accounting periods ended 30 September 1985 (the Leeds) and 31 December 1985 (the National & Provincial and the Yorkshire). Under the effect of the voluntary arrangements (see paragraph 8 above), these payments completely discharged the income-tax liability of their investors in respect of the interest paid to them by the respective societies for the fiscal year 6 April 1985–5 April 1986. On that basis each of the applicant companies paid the following amounts by way of CRT to the Inland Revenue: – the Leeds: 144,500,000 pounds sterling (GBP), a sum measured by reference to the interest paid to its investors in its accounting period ended 30 September 1985; the National & Provincial: GBP 125,926,662, a sum measured by reference to the interest paid to its investors in its accounting period ended 31 December 1985; – the Yorkshire: GBP 34,001,214, a sum measured by reference to the interest paid to its investors in its accounting period ended 31 December 1985. E. The aim and effect of the new legislation: section 40 of the Finance Act 1985 15. With a view to putting the taxation of the interest paid by building societies to investors on a similar footing to the scheme which had been introduced for banks by the Finance Act 1984, the Government proposed the introduction of a mandatory regime for the collection of tax on investors’ interest and the payment of the tax quarterly on the last days of February, May, August and November instead of annually in January. In his budget statement on 19 March 1985 announcing the introduction of the new scheme, the Chancellor of the Exchequer declared that it would not produce any additional revenue. The proposal was adopted by Parliament in the form of section 40 of the Finance Act 1985. 16. Section 40 amended section 343 of the 1970 Act (see paragraph 8 above) by inserting a new sub-section (1A) which had the effect of bringing to an end the long-standing voluntary arrangements as from 6 April 1986. It also empowered the Inland Revenue Commissioners to make regulations introducing a new system of accounting for the fiscal year 1986/87 and for subsequent years. Under the Income Tax (Building Society) Regulations 1986 (“the 1986 Regulations”), which came into force on 6 April 1986, tax was to be calculated on a quarterly basis on the actual interest paid during the actual year of assessment, as opposed to a prior period. F. The problem of the “gap period” 17. However the ending of the voluntary arrangements exposed a gap (“the gap period”) between the end of the applicant societies’ accounting periods in 1985/86 (see paragraph 14 above) and the start of the first quarter under the new regime. In the case of the Leeds the gap period was from 1 October 1985 to 5 April 1986, and in the case of the National & Provincial and the Yorkshire it was from 1 January 1986 to 5 April 1986. In order to ensure that each payment of interest formed the basis of an assessment to tax, transitional regulations were introduced which deemed payments falling into the “gap period” to have been made in a later accounting period, with the result that they formed the basis for an assessment to tax under the new “actual-year” arrangements. In the view of the Government the legislative intention was to ensure that the same amount of tax was collected as would have been collected if the previous arrangements had continued and that the building societies did not receive an undeserved windfall in respect of the gap period. 18. Against this background, Regulation 11 (read in conjunction with Regulation 3) of the 1986 Regulations purported to require building societies to account for tax relating to payments of interest to their investors in their respective gap periods. Regulation 11 (4) provided for tax to be charged on interest paid in the gap period at 1985/86 rates, i.e. 25.25%, the basic rate of income tax being 30% for that year. II. Particular circumstances of the case 19. Each of the applicant societies took the view that the transitional regulations ran counter to the Government’s declared intention that the new regime introduced by the Finance Act 1985 should not produce any additional revenue (see paragraph 15 above), which view was reaffirmed during the parliamentary debates on section 40 of that Act. They considered that the effect of Regulations 3 and 11 was to impose tax again on interest they had paid in 1985/86, a fiscal year for which liability on their investors’ interest had already been discharged (see paragraph 14 above). For the applicants this had the result that, for twenty-four months’ interest paid to its investors in the two fiscal years 1986/87 and 1987/88, a society like the Leeds, with a 30 September year-end, was required to pay tax on thirty months’ interest. For the National & Provincial and the Yorkshire, each would have to pay tax on twenty-seven months’ interest for the twenty-four month period covered by the fiscal years 1986/87 and 1987/88. In the view of the applicant societies these consequences ran counter to the measurement principle according to which the measurement period forming the basis of assessment to tax can never exceed the length of the fiscal year (see paragraph 7 above). Each of the three applicant societies did in fact pay the tax claimed to be due under the transitional provisions of the Regulations as follows: – the National & Provincial: GBP 15,873,945; – the Leeds: GBP 56,973,690; – the Yorkshire: GBP 8,902,620. 20. The Government point out that the payments were made “without formal protest”. However, the applicants assert that they made clear from the outset that they disputed the lawfulness of the tax and that they associated themselves with the proceedings initiated by the Woolwich Equitable Building Society (“the Woolwich”) to challenge the lawfulness of the transitional provisions in Regulation 11. For its part the Leeds issued a press release when the Regulations were still at the draft stage, drawing attention to, inter alia, their complaint that the Regulations would have the objectionable effect of subjecting building societies to double taxation. The affidavit sworn by the Executive Vice-Chairman of the Woolwich referred to the Leeds’ support for its decision to initiate legal proceedings against the transitional arrangements. Both the National & Provincial and the Yorkshire made requests for the repayment of the amounts they had paid to the Inland Revenue. A. The Woolwich 1 proceedings for judicial review 21. On 18 June 1986 the Woolwich commenced judicial review proceedings seeking a declaration that Regulation 11 was unlawful as being outside the scope of the enabling legislation. It was further alleged that the transitional arrangements transgressed the fundamental principles of constitutional and taxation law and that the machinery adopted by the 1986 Regulations in order to implement the change in the system resulted in a double charge to tax over the gap period. B. The legislative response to the launch of the Woolwich 1 proceedings: section 47 of the Finance Act 1986 22. On 4 July 1986 the Government introduced in Parliament a measure intended to validate retrospectively the impugned Regulations and to give effect to what they claimed to be the original intention of Parliament when adopting them (see paragraphs 15 and 17 above). The responsible Government minister informed Parliament that the Regulations did not affect the amount of tax collected, only the timing of payment and reiterated that they would not bring extra tax to the Inland Revenue. On 25 July 1986 the Finance Act 1986 (“the 1986 Act”) received the Royal Assent. Section 47 of the Act retrospectively amended section 343 (1A) of the 1970 Act (see paragraph 16 above) with the purpose of authorising the Inland Revenue Commissioners to make regulations requiring the taxation in the year 1986/87 and subsequent years of assessments of sums paid to investors in the gap period and not previously brought into account. C. The Woolwich 2 proceedings for restitution 23. On 15 July 1987 the Woolwich issued a writ against the Inland Revenue claiming repayment of the sums paid by way of tax under the transitional provisions of the Regulations, as well as interest from the date of payment. D. The decision of the High Court in the Woolwich 1 proceedings 24. On 31 July 1987 Nolan J granted the application in Woolwich 1 (see paragraph 21 above) and made a declaration that Regulation 11 was void in its entirety and that the remaining Regulations were void in so far as they purported to apply to payments made to investors prior to 6 April 1986. He held that: (a) there was nothing in the enabling legislation to indicate that Parliament intended to authorise a departure from the principle that income tax should only be levied on the income of one year; (b) the power to make regulations conferred by section 343 (1A) was to be exercised solely with respect to 1986/87 and later years and nothing in the section authorised the Revenue to go back on the arrangements with the building societies and impose further tax on interest paid to their members during the gap period; (c) the fact that Regulation 11 (4) provided for tax to be charged at 1985/86 rates (which were higher than the 1986/87 rates) was itself a clear indication that the Regulations went beyond the powers conferred by section 343 (1A); (d) the position was not affected by the amendment in section 47 (1) of the 1986 Act which, whatever its intention, still left the power conferred by section 343 (1A) as a power exercisable only with respect to 1986/87 and subsequent years. 25. The Inland Revenue appealed against the decision. They conceded that Regulation 11 (4) was invalid but contended that this partial invalidity did not invalidate the rest of the Regulation. 26. Towards the end of 1987, the Inland Revenue repaid to the Woolwich the sum of GBP 57,000,000 with interest from 31 July 1987 (the date of the order of Nolan J) but refused to pay interest from any earlier date. Thus, the remaining issue in the Woolwich 2 proceedings (see paragraph 23 above) came to be whether or not Woolwich had grounds for claiming interest on the payments made by them up to 31 July 1987. E. The decision of the High Court in the Woolwich 2 proceedings 27. On 12 July 1988 Nolan J dismissed the Woolwich 2 action, holding that the Woolwich was not entitled to recover the sums in issue under any general principle of restitution or as having been paid under duress. He took the view that the sums had been paid under an implied agreement that they would be repaid if and when the dispute about the validity of the 1986 Regulations was resolved in favour of the Woolwich. Thus, the Woolwich had no cause of action to recover the money until the date of his order of 31 July 1987. The Woolwich appealed against the decision and order. F. The decision of the Court of Appeal in the Woolwich 1 proceedings 28. On 12 April 1989 the Court of Appeal allowed the appeal of the Inland Revenue in the Woolwich 1 proceedings (see paragraph 25 above). The court held that: (a) as a matter of ordinary construction, the words of section 47 of the 1986 Act were clear and enabled the Revenue to take account of, and to charge to tax, interest paid by the societies in the gap period; and (b) subject to the invalidity of Regulation 11 (4), which was conceded by the Revenue, Regulation 11 was valid. G. The decision of the House of Lords in the Woolwich 1 proceedings 29. On 25 October 1990 the House of Lords allowed the appeal of the Woolwich in the Woolwich 1 proceedings. The House of Lords, Lord Lowry dissenting, declared the transitional provisions in the 1986 Regulations to be ultra vires on the grounds that Regulation 11 (4), as the Inland Revenue had previously conceded, and Regulation 3, so far as it related to the period after February and before 6 April 1986, were ultra vires the empowering statute. The House of Lords considered that Regulation 11 (4) could not be severed from the rest of Regulation 11 and that the transitional provisions in the 1986 Regulations were therefore void in their entirety. 30. Lord Oliver, delivering the judgment of the majority, concluded: “... I confess that I find the conclusion irresistible that Parliament intended by these words [section 47 of the 1986 Act] to enable the Revenue to take account of and to charge to tax sums which, rightly or wrongly, it regarded as otherwise representing windfalls in the hands of building societies. One has only to look at the circumstances. The Regulations of 1986 had been made and had been objected to. They were made the subject of a direct challenge in legal proceedings, the evidence in support of which clearly adumbrated the arguments advanced before the judge and the Court of Appeal. The notion that Parliament should go to the trouble of enacting an expressly retrospective amendment in order to provide, unnecessarily, for the use of these sums as a measurement of tax liability – a matter never remotely in issue – is simply fanciful ... ... I am bound to say that I think it unfortunate that the Revenue, through Parliament, should have chosen by secondary rather than primary legislation to take what was, on ordinary principles, the very unusual course of seeking to tax more than one year’s income in a single year of assessment, but section 47 of the Finance Act 1986 is, on any analysis, a very unusual provision and I have, in the end, found myself irresistibly driven to the conclusion that this was what Parliament intended should occur. It may be – I do not know – that the legislature did not appreciate fully that the effect of the arrangements made in 1985 was to discharge all liability for tax on interest paid in the year of assessment 1985/86, including tax on interest paid after the end of a society’s accounting year, and that, accordingly, to tax those sums again in a subsequent year was, in a sense, to tax them twice. But even making that assumption it amounts to no more than saying that the legislature should not have intended to do that which it plainly set out to do. I would, for my part, therefore, reject the Woolwich’s principal argument.” This ruling declaring Regulation 11 (4) void on technical grounds meant that no mechanism existed to achieve what the Government claimed to be Parliament’s initial intention that interest payments made during the gap period should be assessed for tax. This led the Government to introduce new legislative provisions. A draft press release was circulated as early as 7 March 1991 for the approval of the Chancellor of the Exchequer. The draft indicated that the Chancellor in his budget-day speech on 19 March 1991 would introduce legislation to validate retrospectively the Regulations which had been struck down in the Woolwich 1 case (see paragraph 33 below). H. The Leeds 1 and National & Provincial 1 proceedings for restitution 31. Following the House of Lords’ decision in the Woolwich 1 proceedings, and after having made several requests for repayment, the Leeds commenced proceedings on 15 March 1991 against the Inland Revenue for the restitution of the sum of GBP 56,973,690 paid pursuant to the 1986 Regulations which had been declared void in the Woolwich 1 proceedings. 32. On 17 March 1991 the National & Provincial, which had also sought but was refused repayment, commenced proceedings against the Inland Revenue for the restitution of the sum of GBP 15,873,945 paid pursuant to the void Regulations. I. The legislative response to the Woolwich 1 decision: the enactment of section 53 of the Finance Act 1991 33. On 19 March 1991, in his budget statement, the Chancellor of the Exchequer announced the introduction of legislation to remedy “the technical defects in the Regulations”. This legislation became section 53 of the Finance Act 1991 (“the 1991 Act”), which entered into force on 25 July 1991. Section 53 provided, inter alia : “Section 343 (1A) of the [1970 Act] ... shall be deemed to have conferred powers to make all the provisions in fact contained in [the 1986 Regulations].” 34. The provision had retrospective effect, save that by subsection (4) it had no effect “in relation to a building society which commenced proceedings to challenge the validity of the Regulations before 18 July 1986”. The Woolwich was the only building society which satisfied this condition. 35. In a letter dated 21 March 1991 the Director-General of the Building Societies Associations informed the Financial Secretary to the Treasury that the decision of the Government “[did] not come as any great surprise, although it will still be very disappointing to the societies concerned”. In fact, the concrete effect of the measure was to stifle the Leeds 1 and National & Provincial 1 proceedings (see paragraphs 31and 32 above). Although they had shown support for the Woolwich’s judicial proceedings (see paragraph 20 above) neither had formally commenced legal proceedings before 18 July 1986. At the costs hearing the Government conceded that they had no defence to the action brought by the Leeds and the National & Provincial had it not been for section 53 of the 1991 Act. Costs were awarded against the Government. J. The Woolwich 2 proceedings in the Court of Appeal 36. On 22 May 1991 the Court of Appeal, by a majority, allowed the appeal by the Woolwich in Woolwich 2 and awarded the interest claimed. 37. The majority of the Court of Appeal accepted the Woolwich’s primary submission that, where money was paid under an illegal demand for taxation by a government body, the payer had an immediate prima facie right to recover the payment. K. The Leeds 2, National & Provincial 2 and Yorkshire 1 proceedings to challenge the validity of the Treasury Orders by way of judicial review 38. On 10 July 1991 the Leeds applied for leave to commence judicial review proceedings for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and for the following years were unlawful (“Leeds 2”). The Leeds claimed that: (a) it was clear that in making the estimates for the years following 1986/87, and setting the rates of composite-rate tax on the basis of it, the Treasury had assumed the correctness of the Government’s position that the Regulations collected no “extra” tax; (b) this position had been shown by the judgments in Woolwich 1 to be wrong, with the result that the Treasury had underestimated the amount of tax collection under the composite-rate tax system and so set the rate of tax for those years substantially too high; (c) this was of no significance so long as the Regulations were held to be invalid, because the “extra” tax was in law repayable to the building societies; however, by retrospectively validating them the Government had automatically invalidated the bases of the statutory instruments setting the rates; (d) this, in principle, meant that all composite-rate tax paid in those years had to be repaid, but in its proceedings the Leeds made a binding commitment not to seek to recover more than the sums initially overpaid, namely GBP 57,000,000. 39. On 6 November 1991 the National & Provincial was granted leave to commence judicial review proceedings similar to those in Leeds 2 for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and subsequent years were unlawful because of the retrospective validation of the Regulations (“National & Provincial 2”). The application was joined with the Leeds 2 proceedings and with a similar application made by the Bradford and Bingley Building Society. 40. On 3 March 1992 the Yorkshire applied for leave to commence similar judicial review proceedings for a declaration that the Treasury Orders establishing the composite-rate tax for 1986/87 and subsequent years were unlawful (“Yorkshire 1”). L. The Leeds 3, National & Provincial 3 and Yorkshire 2 proceedings for restitution 41. Further proceedings were commenced by the Yorkshire on 11 May 1992 (“Yorkshire 2”), by the Leeds on 1 June 1992 (“Leeds 3”) and by the National & Provincial on 12 June 1992 (“National & Provincial 3”). In those proceedings the applicant societies claimed restitution of the money due to them if the judicial review proceedings (Leeds 2 and National & Provincial 2, and Yorkshire 1) were successful (see paragraphs 38–40 above). M. The legislative response to the applicants’ proceedings for judicial review and restitution: section 64 of the Finance (No. 2) Act 1992 42. On 16 July 1992 section 64 of the Finance (No. 2) Act 1992 (“the 1992 Act”) entered into force. This legislation had been anticipated as from 7 May 1992 when the Financial Secretary in a reply to a parliamentary question noted that his Government intended to introduce legislation to validate retrospectively the impugned Treasury Orders. Section 64 provided, with retrospective effect, that the Treasury Orders “shall be taken to be and always to have been effective”. The Government acknowledged during the parliamentary debates on section 64 that the measure was intended to pre-empt the legal proceedings launched by the applicants to challenge the validity of the Treasury Orders and that it would result in the Woolwich being treated more favourably. However, they pointed out that the challenge to the composite rate for CRT in the fiscal years 1986/87 to 1989/90 threw into doubt the lawfulness of the collection of all sums from building societies, banks and other deposit institutions in the periods in question. While there was no doubt as to the lawfulness of the collection in respect of the vast majority of those sums, the effect of impugning the rates set would have been to render the collection of all sums unlawful. The amount at stake was in the region of GBP 15 billion. 43. The effect of section 64 was to extinguish the remaining proceedings lodged by the applicants for judicial review of the validity of the Treasury Orders and for restitution (see paragraphs 39–41 above). N. The final outcome of the Woolwich 2 proceedings 44. On 20 July 1992 the House of Lords, by a majority, dismissed the Inland Revenue’s appeal in the Woolwich 2 proceedings. The House of Lords did not accept that, on the facts of the Woolwich case, there was any implied agreement for the repayment of the money paid under the invalid Regulations if and when the dispute was resolved in the taxpayer’s favour. Nevertheless, by a majority, the House of Lords held: (a) that money paid by a citizen to a public authority in the form of taxes or other levies pursuant to an ultra vires demand by the authority is prima facie recoverable by the citizen as of right; (b) that, accordingly, since the building society’s claims fell outside the statutory framework governing repayment of overpaid tax, it was entitled at common law to repayment of the sums and to interest in respect thereof from the date of payment. | This case concerned legal claims to restitution of monies paid under invalidated tax provisions extinguished under the effects of retrospective legislation (section 53 of Finance Act 1991 and section 64 of Finance (No. 2) Act 1992). The applicant building societies1 alleged in particular a violation of the right to property. |
535 | Police brutality | 8. The applicants, who are Greek nationals of Roma origin, were born in 1980 and live in Mesolonghi ( Western Greece ). I. THE CIRCUMSTANCES OF THE CASE A. Outline of the events 9. On 8 May 1998, at approximately 00 .45 a.m., a patrol car from the Mesolonghi police station responded to a telephone complaint reporting the attempted burglary of a kiosk. The call had been made by the grandson of the owner of the kiosk, Mr Pavlakis. Upon arriving at the scene, the latter found the first applicant attempting to break into the kiosk with an iron bar while the second applicant was apparently acting as a lookout. He struggled with the second applicant, who subsequently stated that Mr Pavlakis had punched him in the face. 10. At that point three police officers, Mr Sompolos, Mr Alexopoulos and Mr Ganavias, arrived. The first applicant claimed that he was initially handcuffed without being beaten. Then, an officer removed his handcuffs and repeatedly beat him on the back and the head with a truncheon. He stopped when the first applicant complained that he had a medical condition and was feeling dizzy. 11. Following their arrest, the applicants were taken to the Mesolonghi police station, where officers Tsikrikas, Avgeris, Zalokostas, Skoutas and Kaminatos were present. The first applicant alleged that as he was being led to his cell one officer beat him twice with a truncheon and another slapped him in the face. 12. At 10.00 a.m. the first applicant was taken to the interview room, where allegedly three police officers punched him in the stomach and the back, trying to extract confessions to other crimes and information about who was dealing in drugs in the area. According to the first applicant, the police officers took turns beating him, slapping him and hitting him all over his body. The first applicant further alleged that another police officer beat him with the iron bar that had been used in the attempted burglary. He alleged that this officer also pushed him against the wall, choking him with the iron bar and threatening to sexually assault him, saying “I will f... you”, while trying to lower his trousers. 13. The second applicant said that he was also abused throughout his interrogation. During the early hours of the day, he was allegedly beaten with a truncheon on his back and kicked in the stomach by an officer who later returned to beat him again. Subsequently, the second applicant identified the officer as Mr Tsikrikas. The second applicant also testified that the police officers “inserted a truncheon in [his] bottom and then raised it to [his] face, asking [him] whether it smelled”. 14. The applicants stated that they were both able to hear each other ’ s screams and cries throughout their interrogation. The first applicant testified before the domestic court : “I could hear Koutropoulos crying in the other room”. The second applicant stated: “I screamed and cried when they were beating me. I could also hear Bekos ’ s screams and cries”. They also claimed that they suffered repeated verbal abuse about their Roma origins. In his sworn deposition dated 3 July 1998 the first applicant testified before the public prosecutor that the officer who had choked him with the iron bar said to him “you guys f... your sisters” and “your mothers are getting f... by others” (see also paragraph 25 below). The Government disputed that the applicants had been assaulted or subjected to racial abuse while in police detention. 15. The applicants remained in detention until the morning of 9 May 1998. At 11.00 a.m. they were brought before the Mesolonghi Public Prosecutor. The first applicant was charged with attempted theft and the second applicant with being an accomplice. The Public Prosecutor set a trial date and released the applicants. In November 1999 the applicants were sentenced to thirty days ’ and twenty days ’ imprisonment respectively, in each case suspended for three years. 16. On 9 May 1998, the applicants went to the regional hospital in order to obtain medical evidence of their injuries. However, the intern they saw at the hospital was only able to verify that they both had bruises. In order to acquire stronger evidence of their injuries, the applicants consulted a forensic doctor in Patras. The latter issued a medical certificate dated 9 May 1998, in which he stated that the applicants bore “moderate bodily injuries caused in the past twenty-four hours by a heavy blunt instrument...” In particular, the first applicant had “two deep red (almost black) parallel contusions with areas of healthy skin, covering approximately 10 cm stretching from the left shoulder joint to the area of the deltoid muscle and the right shoulder joint. He complains of pain in his knee joint. He complains of pain in the left parietal area”. The second applicant had “multiple deep red (almost black) parallel ‘ double ’ contusions with areas of healthy skin covering approximately 12 cm stretching from the left shoulder joint along the rear armpit fold at the lower edge of the shoulder blade, a contusion of the aforementioned colour measuring approximately 5 cm on the rear left surface of the upper arm and a contusion of the aforementioned colour measuring approximately 2 cm on the right carpal joint. He complains of pain on the right side of the parietal area and of pain in the midsection. He complains that he is suffering from a torn meniscus in the right knee, shows pain on movement and has difficulty walking”. The applicants produced to the Court pictures taken on the day of their release, showing their injuries. The Government questioned the authenticity of these pictures and affirmed that they should have first been produced to the domestic authorities. They also questioned the credibility of the forensic doctor who examined the applicants and submitted that he had convictions for perjury. 17. On 11 May 1998 the Greek Helsinki Monitor and the Greek Minority Rights Group sent a joint open letter to the Ministry of Public Order protesting against the incident. The letter bore the heading “subject matter: incident of ill-treatment of young Roma (Gypsies) by police officers”; it stated that members of the above organisations had had direct contact with the two victims during a lengthy visit to Roma camps in Greece and that they had collected approximately thirty statements concerning similar incidents of ill-treatment against Roma. The Greek Helsinki Monitor and the Greek Minority Rights Group Reports urged the Minister of Public Order in person to ensure that a prompt investigation of the incident was carried out and that the police officers involved be punished. They expressed the view that precise and detailed instructions should be issued to all police stations in the country regarding the treatment of Roma by the police. Reports of the incident were subsequently published in several Greek newspapers. B. Administrative investigation into the incident 18. On 12 May 1998, responding to the publicity that had been generated, the Ministry of Public Order launched an informal inquiry into the matter. 19. After the incident received greater public attention, the Greek police headquarters requested that the internal investigation be upgraded to a Sworn Administrative Inquiry ( Ενορκη Διοικητική Εξέταση ), which started on 26 May 1998. 20. The report on the findings of the Sworn Administrative Inquiry was issued on 18 May 1999. It identified the officers who had arrested the applicants and found that their conduct during the arrest was “lawful and appropriate”. It concluded that two other police officers, Mr Tsikrikas and Mr Avgeris had treated the applicants “with particular cruelty during their detention”. The report noted that the first applicant had consistently identified the above officers in his sworn depositions of 30 June and 23 October 1998 and that the second applicant had also consistently and repeatedly identified throughout the investigation Mr Tsikrikas as the officer who had abused him. 21. More specifically, it was established that Mr Tsikrikas had physically abused the applicants by beating them with a truncheon and/or kicking them in the stomach. It further found that although the two officers had denied ill-treating the applicants, neither officer was able to “provide a convincing and logical explanation as to where and how the above plaintiffs were injured, given that according to the forensic doctor the ill-treatment occurred during the time they were in police custody”. 22. As a result, it was recommended that disciplinary measures in the form of “temporary suspension from service” be taken against both Mr Tsikrikas and Mr Avgeris. The inquiry exculpated the other police officers who had been identified by the applicants. Despite the above recommendation, neither Mr Tsikrikas nor Mr Avgeris were ever suspended. 23. On 14 July 1999 the Chief of the Greek Police fined Mr Tsikrikas 20,000 drachmas (less than 59 euros) for failing to “take the necessary measures to avert the occurrence of cruel treatment of the detainees by his subordinates”. The Chief of the Greek Police acknowledged that the applicants had been ill-treated. He stated that “the detainees were beaten by police officers during their detention ... and were subjected to bodily injuries”. C. Criminal proceedings against police officers 24. On 1 July 1998 the applicants and the first applicant ’ s father filed a criminal complaint against the Deputy Commander in Chief of the Mesolonghi police station and “all other” officers of the police station “responsible”. 25. On 3 July 1998 the first applicant gave a sworn deposition relating to his allegations of ill-treatment. He claimed that during his arrest, he had been beaten on the head with a truncheon by a “tall, blond” policeman, who also gave him a beating in the police station and that he had been subjected to racial insults (see paragraph 14 above). 26. On 18 December 1998 the Mesolonghi Public Prosecutor asked the Mesolonghi investigating judge to conduct a preliminary inquiry into the incident ( προανάκριση ). The findings of the inquiry were then forwarded to the Prosecutor of the Patras Court of Appeal. In January 2000 the Patras Court of Appeal ordered an official judicial inquiry into the incident ( κύρια ανάκριση ). 27. On 27 January 1999 and 1 February 2000 the first applicant stated that the behaviour of the police officers “was not so bad”, that he wanted “this story to be over” and that he did not want “the police officers to be punished”. On the same dates the second applicant repeated that he had received a beating at the hands of Mr Tsikrikas, but said that the police officers ’ behaviour was “rightfully bad” and that he did not want them to be prosecuted. He apologised to the owner of the kiosk and said that he wanted “this story to be over” because he has joining the army and wanted “to be on the safe side”. 28. On 31 August 2000 the Mesolonghi Public Prosecutor recommended that three police officers, Mr Tsikrikas, Mr Kaminatos and Mr Skoutas, be tried for physical abuse during interrogation. 29. On 24 October 2000 the Indictment Division of the Mesolonghi Criminal Court of First Instance ( Συμβούλιο Πλημμελειοδικών ) committed Mr Tsikrikas for trial. It found that “[the] evidence shows that Mr Tsikrikas ill-treated [the applicants] during the preliminary interrogation, in order to extract a confession from them for the attempted theft ... and any similar unsolved offences they had committed in the past”. The Indictment Division further stated that Mr Tsikrikas had failed to provide a plausible explanation as to how the applicants were injured during their interrogation and noted that they had both identified Mr Tsikrikas, without hesitation, as the officer who had ill-treated them. On the other hand, it decided to drop the criminal charges against Mr Kaminatos and Mr Skoutas on the ground that it had not been established that they were present when the events took place (bill of indictment no. 56/2000). 30. Mr Tsikrikas ’ s trial took place on 8 and 9 October 2001 before the three-member Patras Court of Appeal. The court heard several witnesses and the applicants, who repeated their allegations of ill-treatment (see paragraphs 10-14 above ). Among others, the court heard Mr Dimitras, a representative of the Greek Helsinki Monitor, who stated that the said organisation was monitoring the situation of Roma in Greece and that the incident was reported to him during a visit to the Roma/Gypsy camps. He claimed that he was horrified when he saw the injuries on the applicants ’ bodies and that the latter were initially afraid to file a complaint against the police officers. Mr Dimitras also referred to the actions subsequently taken by the Greek Helsinki Monitor in order to assist the applicants. The court also read out, among other documents, the Greek Helsinki Monitor ’ s and the Greek Minority Rights Group ’ s open letter to the Ministry of Public Order (see paragraph 17 above). 31. On 9 October 2001 the court found that there was no evidence implicating Mr Tsikrikas in any abuse and found him not guilty (decision no. 1898/2001). In particular, the court first referred to the circumstances surrounding the applicants ’ arrest and to the subsequent involvement of members of the Greek Helsinki Monitor in the applicants ’ case, noting their role in monitoring alleged violations of human rights against minorities. Taking also into account the forensic doctor ’ s findings, the court reached the following conclusion : “... Admittedly, the second applicant had clashed with Mr Pavlakis. Further, given the applicants ’ light clothing, it was logical that they were injured during the fight that took place when they were arrested. Even if some of the applicants ’ injuries were inflicted by police officers during their detention, it has not been proved that the accused participated in this in one way or the other, because he was absent when they arrived at the police station and did not have contact with them until approximately two hours later, on his arrival at the police station. In his sworn deposition dated 3 July 1998, the first applicant stated that in the process of his arrest he had been beaten with a truncheon by a tall, blond police officer (a description that does not match the features of the accused) and that the same police officer had also beaten him during his detention. However, the accused was not present when the applicants were arrested. If the applicants had indeed been beaten by police officers during their detention, they would have informed their relatives who arrived at the police station that same night. Thus, the accused must be found not guilty.” 32. Under Greek law, the applicants, who had joined the proceedings as civil parties, could not appeal against this decision. II. REPORTS OF INTERNATIONAL ORGANISATIONS ON ALLEGED DISCRIMINATION AGAINST ROMA 33. In its country reports of the last few years, the European Commission against Racism and Intolerance at the Council of Europe ( ECRI ) has expressed concern about racially motivated police violence, particularly against Roma, in a number of European countries including Bulgaria, the Czech Republic, France, Greece, Hungary, Poland, Romania and Slovakia. 34. The Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002, prepared by the European Union (EU) network of independent experts in fundamental rights at the request of the European Commission, stated, inter alia, that police abuse against Roma and similar groups, including physical abuse and excessive use of force, had been reported in a number of EU member States, such as Austria, France, Greece, Ireland, Italy and Portugal. 35. In its second report on Greece, adopted on 10 December 1999 and published on 27 June 200 0, ECRI stated, inter alia : “ 26. There have been consistent reports that Roma/Gypsies, Albanians and other immigrants are frequently victims of misbehaviour on the part of the police in Greece. In particular, Roma/Gypsies are often reported to be victims of excessive use of force -- in some cases resulting in death -- ill-treatment and verbal abuse on the part of the police. Discriminatory checks involving members of these groups are widespread. In most cases there is reported to be little investigation of these cases, and little transparency on the results of these investigations. Although most of these incidents do not generally result in a complaint being filed by the victim, when charges have been pressed the victims have reportedly in some cases been subjected to pressure to drop such charges. ECRI stresses the urgent need for the improvement of the response of the internal and external control mechanisms to the complaints of misbehaviour vis à vis members of minority groups on the part of the police. In this respect, ECRI notes with interest the recent establishment of a body to examine complaints of the most serious cases of misbehaviour on the part of the police and emphasises the importance of its independence and of its accessibility by members of minority groups. 27. ECRI also encourages the Greek authorities to strengthen their efforts as concerns provision of initial and ongoing training of the police in human rights and anti-discrimination standards. Additional efforts should also be made to ensure recruitment of members of minority groups in the police and their permanence therein ... ... 31. As noted by ECRI in its first report, the Roma/Gypsy population of Greece is particularly vulnerable to disadvantage, exclusion and discrimination in many fields ... ... 34. Roma/Gypsies are also reported to experience discrimination in various areas of public life ... They also frequently experience discriminatory treatment and sometimes violence and abuse on the part of the police ... ” 36. In its third report on Greece, adopted on 5 December 2003 and published on 8 June 200 4, ECRI stated, inter alia : “ 67. ECRI notes with concern that since the adoption of its second report on Greece, the situation of the Roma in Greece has remained fundamentally unchanged and that overall they face the same difficulties – including discrimination - in respect of housing, employment, education and access to public services ... ... 69. ECRI welcomes the fact that the government has taken significant steps to improve the living conditions of Roma in Greece. It has set up an inter-ministerial committee for improving the living conditions of Roma ... 70. ... ECRI deplores the many cases of local authorities refusing to act in the interests of Roma when they are harassed by members of the local population. It is also common for the local authorities to refuse to grant them the rights that the law guarantees to members of the Roma community to the same extent as to any other Greek citizen ... ... 105. ECRI expresses concern over serious allegations of ill-treatment of members of minority groups, such as Roma and both authorised and unauthorised immigrants. The ill-treatment in question ranges from racist insults to physical violence and is inflicted either at the time of arrest or during custody. ECRI is particularly concerned over the existence of widespread allegations of improper use of firearms, sometimes resulting in death. It is equally concerned over reports of ill-treatment of minors and expulsion of non-citizens outside of legal procedures. 106. The Greek authorities have indicated that they are closely monitoring the situation and that mechanisms are in place to effectively sanction such abuses. For example, the Internal Affairs Directorate of the Greek Police was established in 1999 and is responsible for conducting investigations, particularly into acts of torture and violation of human dignity. The police –specifically police officers working in another sector than that of the person under suspicion - and the prosecution equally have competence over such matters and must inform the above-mentioned body when dealing with a case in which a police officer is implicated. The Greek Ombudsman is also competent for investigating, either on request or ex officio, allegations of misbehaviour by a police officer, but he is only entitled to recommend that appropriate measures be taken. ECRI welcomes the fact that the chief state prosecutor recently reminded his subordinates of the need for cases of police ill-treatment, particularly involving non-citizens, to be prevented and prosecuted with the appropriate degree of severity. The authorities have pointed out that instances of ill-treatment were primarily due to difficult conditions of detention. ECRI notes with satisfaction cases of law enforcement officials having been prosecuted, and in some cases penalised, for acts of ill-treatment. However, human rights NGOs draw attention to other cases where impunity is allegedly enjoyed by officials responsible for acts of violence, whose prosecution has not lead to results or even been initiated. ECRI deplores such a situation and hopes that it will no longer be tolerated .” 37. In their joint report published in April 2003 (“Cleaning Operations – Excluding Roma in Greece ” ), the European Roma Rights Center and the Greek Helsinki Monitor, which represent the applicants in the instant case, stated, inter alia : “ ERRC/GHM monitoring of policing in Greece over the last five years suggests that ill-treatment, including physical and racist verbal abuse, of Roma in police custody is common. Although Greek authorities deny racial motivation behind the ill-treatment of Roma, Romani victims with whom ERRC/GHM spoke testified that police officers verbally abused them using racist epithets. Anti-Romani sentiment among police officers often leads to instances of harassment, inhuman and degrading treatment, verbal and physical abuse, and arbitrary arrest and detention of Roma at the hands of police. The ERRC and GHM regularly document ill-treatment of Roma at the hands of the police, either at the moment of arrest or in police custody. Police officers ’ use of racial epithets in some cases of police abuse of Roma is indicative that racial prejudice plays a role in the hostile treatment to which officers subject Roma ... ” | The applicants, two Greek nationals belonging to the Roma ethnic group, alleged in particular that they had been subjected to acts of police brutality while in police detention. They also complained that the authorities had failed to carry out an adequate investigation into the incident, and that the impugned events had been motivated by racial prejudice. |
326 | Issues under Article 8 (right to respect for private and family life) of the Convention | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1978 and lives in Istanbul in Turkey. 1. General background 7. The applicant was born in Mannheim in Germany, where he lived with his parents and his younger sister and attended school. On an unspecified date the applicant's brother died in an accident. His parents have been lawfully resident in Germany for more than thirty years. According to the applicant's submissions, he visited Turkey only two or three times during his holidays. 8. On 19 May 1994 the competent authorities granted the applicant a permanent residence permit. 9. On 31 January 1996 the Mannheim public prosecutor discontinued juvenile-delinquency proceedings brought against the applicant for grievous bodily harm. 10. In 1998 the applicant completed his apprenticeship as a car mechanic. In July 1998 he worked for three or four weeks in Turkey. 2. Proceedings for criminal offences 11. On 27 January 1999 the applicant was arrested and subsequently detained on remand. 12. On 8 September 1999 the Mannheim District Court ( Amtsgericht ) convicted the applicant of two counts of attempted aggravated trafficking in human beings ( versuchter schwerer Menschenhandel ), several counts of battery and aggravated battery ( schwere gefährliche Körperverletzung ), procurement ( Zuhälterei ), purchasing illegal drugs ( Erwerb von Betäubungsmitteln ), two counts of drunken driving and two counts of insulting behaviour and sentenced him to three years and four months'imprisonment. The District Court found that between June 1998 and January 1999 the applicant had forced his former partner to surrender the main part of her earnings acquired through prostitution. To that end, he had used physical violence, on one occasion kicking the woman's face with his shod foot. In January 1999 the applicant – together with two accomplices, including his former partner – had attempted on two occasions to force another woman into prostitution. The applicant and his male accomplice had intended to use the earnings to finance their upkeep and their drug consumption. 13. To that end, the applicant and his accomplices had first locked the woman in. Later on, the applicant had encouraged his former partner to beat the woman and her sister, who had aided her resistance. In the applicant's presence and with his explicit consent, both women had been punched at least ten times in their face. 14. The applicant was also found guilty of having purchased five grams of cocaine on one occasion, together with one accomplice, and of having insulted several police officers. In view of the fact that the applicant had been twenty years old when committing those offences and that there was no indication of retarded development, the District Court did not apply juvenile but adult criminal law. 15. When assessing the applicant's sentence, the District Court treated as mitigating factors the fact that the applicant had no previous convictions and that he had confessed to the offences during the main proceedings. It emphasised, however, that the applicant had acted as the driving force in carrying out the crimes committed jointly against the second victim. The District Court further noted that the applicant had acted with “incredible brutality” ( unglaubliche Brutalität ) towards his second victim, after having already exploited his former partner. The applicant had taken around 48,000 German marks from the latter without leaving her the necessary resources to cater to her own and her child's needs, his intention being to use the money for alcohol, drugs and other purposes of his own. The District Court put special emphasis on the exceptional brutality with which the applicant had exploited his former partner. Lastly, it considered the degree of disdain he had shown towards the police officers. Only the applicant's confession had prevented the District Court from imposing a prison sentence of more than four years, which would have meant relinquishing the examination of the case in favour of the Regional Court. 3. Expulsion proceedings 16. On 23 November 1999 the Karlsruhe Regional Government ( Regierungspräsidium ) ordered the applicant's expulsion to Turkey. It was announced that he would be deported on his release from prison. 17. Although the applicant was born in Germany and possessed a valid residence permit, the Regional Government considered that his conviction for several serious offences made it necessary to expel him under section 47(1) and (3) and section 48(1) of the Aliens Act ( Ausländergesetz – see “Relevant domestic law” below) for serious reasons relating to public safety. Regard being had to the reasons given for the applicant's criminal conviction, his expulsion was necessary in the interest of general deterrence ( Generalprävention ). 18. The Regional Government also considered the applicant's expulsion justified in this particular case because there was a high risk that he would continue to pose a serious threat to public safety. The seriousness of the offences committed by the applicant demonstrated his high criminal potential and his violent disposition. His criminal offences showed that he was not willing to respect the rights and dignity of his fellow human beings. These factors led to a serious danger of recidivism ( erhebliche Wiederholungsgefahr ). 19. The Regional Government further found that the applicant's expulsion was proportionate and complied with Article 8 § 2 of the Convention. The applicant was a single adult and could be reasonably expected to live in Turkey. He had not submitted any evidence that his parents depended on his support. His parents would be in a position to maintain contact with him by way of visits and exchanging letters. 20. On 3 January 2000 the applicant applied to the Karlsruhe Administrative Court ( Verwaltungsgericht ) for judicial review of the expulsion order. He stated, inter alia, that his parents – especially his mother, but also, to a lesser degree, his father – were suffering from serious depression caused by the earlier loss of their other son. The applicant's current situation had aggravated their condition, obliging them to seek medical treatment. His deportation might cause his mother to suffer a complete psychological breakdown. He was, moreover, ready to undergo social training and to come to terms with his former alcohol abuse. With respect to his prospects in Turkey, the applicant alleged that he spoke only colloquial Turkish and had but limited writing skills in that language. 21. In a judgment of 24 February 2000 the Administrative Court rejected the applicant's motion. It concurred with the reasoning set out in the expulsion order to the effect that there were sufficient indications that the applicant would continue to pose a danger to public order and safety. The alleged hardships suffered by the applicant's parents did not justify a different assessment of the facts. 22. The applicant subsequently applied for leave to appeal. In a letter of 10 January 2001 he submitted, inter alia, that he had been born in Germany, where he had gone to school and received vocational training. His whole family lived in Germany. He further submitted that he did not have any connection with Turkey and that he had poor knowledge of the Turkish language. His expulsion would lead to the destruction of his family. 23. On 7 March 2001 the Baden-Württemberg Administrative Court of Appeal ( Verwaltungsgerichtshof ) refused the applicant leave to appeal. It found, firstly, that the applicant's submissions were not capable of raising serious doubts as to the correctness of the Administrative Court's judgment. Furthermore, he had not established that an appeal would be justified on the ground of the legal complexity of the subject matter. It was obvious that the interference with the applicant's right to respect for his private and family life, as guaranteed by Article 8 of the Convention, was justified under paragraph 2 of that Article, regard being had in particular to the serious danger of recidivism. 24. On 5 April 2001 the applicant was deported from prison to Turkey. The remaining third of his prison sentence was suspended in view of his deportation. 25. On 7 April 2001 the applicant lodged a constitutional complaint. On 12 February 2002 the Federal Constitutional Court, sitting as a panel of three judges, refused to accept the applicant's complaint for adjudication. That decision was served on the applicant on 21 February 2002. 4. Further developments 26. On 20 May 2002 the applicant married a German national of Turkish origin, who lives in Germany. On 28 December 2003 a child was born to the couple. 27. On 16 September 2002 the applicant requested to have a time-limit placed on his exclusion order. On 19 July 2004 the Karlsruhe Regional Government limited the period of validity of the applicant's exclusion order until 5 October 2006, i. e. five years from the date of his deportation. The limitation was subject to the condition that the applicant was to submit evidence that he had not committed any further criminal offences and that he was still married to his German wife, that he was to submit a hair analysis proving that he did not consume drugs and that he was to reimburse the expenses incurred in connection with his deportation. 28. On 11 April 2006 the Karlsruhe Administrative Court rejected the applicant's application for judicial review aimed at further shortening the time-limit set to his exclusion order. 29. By the end of February 2007, the applicant was still residing in Turkey. | The applicant, a Turkish national who had lived in Germany for some 30 years, was convicted in 1999 for, among other things, attempted aggravated trafficking in human beings and aggravated battery. He was expelled in 2001 from Germany to Turkey after he had served two thirds of his prison sentence, as the courts found that there was a high risk that he could continue to pose a serious threat to the public. The applicant complained that his deportation from Germany had breached his private and family life. |
702 | Internet sites providing educational information | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1961. According to the latest information in the Court ’ s possession, he was serving a sentence in the Pravieniškės Correctional Home. A. Internet access 6. On 30 May 2006 the applicant wrote to the Ministry of Education and Science ( Švietimo ir mokslo ministerija, hereinafter “ the Ministry ” ), requesting information about the possibility of enrolling at university. He mentioned having graduated in 1996 from the Medical Faculty of Vilnius University. The applicant stated that he wished to pursue studies via distance learning to acquire a second university degree ( studijuoti neakivaizdiniu būdu aukštojoje mokykloje ), this time in “ law with a specialisation in human rights ” ( teisės studijos su žmogaus teisių pakraipa ). The applicant mentioned that he was a prisoner and thus could not physically attend the place of study. 7. In a letter of 12 June 2006 sent to the applicant at the Pravieniškės Correctional Home, the Ministry of Education and Science wrote that information about the study programmes could be found on the website < www.aikos.smm.lt >. This website states that it belongs to the Ministry of Education and Science, and is administered by a public entity, the Centre for Information Technologies in Education ( Švietimo informacinių technologijų centras ), which is a public institution founded by the Ministry of Education and Science. The website contains information about learning and study possibilities in Lithuania. The website states the following about the aims of the “ AIKOS ” system: “AIKOS is an open system for providing information, consultation and guidance, the main aim of which is to provide information about opportunities for learning in Lithuania. AIKOS provides the possibility of searching information about professions, qualifications, studies and study programmes, educational and science institutions and rules of admission ... AIKOS allows users to submit a question to a consultant and to receive a reply ... The information provided in the central part of the AIKOS website under the sections ‘ I wish to learn ’, ‘ I wish to study ’, ‘ I wish to improve my qualifications ’ reflects only the current and most pertinent information relevant to the current academic year and is aimed at those who wish to enter university, vocational school, or a secondary school, or who wish to improve their qualifications. The site also contains historical data regarding education ... AIKOS provides information to three groups of users: adults, children (up to fourteen years of age) and English speakers. The users may use more functions after they have registered on this site. The AIKOS website is refreshed daily, to reflect information about education and science institutions, study and learning programmes and the qualifications a person receives upon graduating from those programmes, ... programmes for improving qualifications ... It also provides information from the Lithuanian Labour Exchange about job vacancies and unemployment. The latter information on the AIKOS website is renewed monthly ... ” 8. On 28 June 2006 the applicant wrote to the Pravieniškės Correctional Home authorities, noting the reply by the Ministry and asking to be granted Internet access to a website “ where there was information from the Ministry about studies, as well as to [the applicant ’ s] email accounts hosted on the Internet sites < www.one.lt > and < www.yahoo.com > ”. 9. On 1 July 2006 the Pravieniškės Correctional Home governor replied that the prison authorities did not consider the Ministry ’ s reply to be comprehensive. In particular, the Ministry had not taken into account the applicant ’ s particular situation – namely that he was in prison. The prison considered that the Ministry should have provided a comprehensive reply in writing. According to the prison governor, “ given that the Ministry ’ s reply did not satisfy [the applicant], the latter should write to the Ministry again, so that he is provided with a comprehensive reply ”. 10. The prison governor also informed the applicant that the request to have Internet access could not be granted because at that time none of the legislation allowed the prisoners to use the Internet or to have a mailbox. For that reason, the Pravieniškės Correctional Home authorities were unable to grant the applicant ’ s request. 11. The applicant then lodged a complaint with the Department of Prisons ( Kalėjimų departamentas ), arguing that none of the laws prohibited him from obtaining information from a State institution electronically. The applicant referred to the Ministry ’ s reply and asked to be granted Internet access. 12. On 26 July 2006 the Department of Prisons responded that the legal instruments regulating the execution of sentences did not permit prisoners to use the Internet. It was suggested that the applicant again ask the Ministry to provide the information he sought. 13. On 1 August 2006 the applicant started court proceedings, referring to his correspondence with the Ministry and challenging the Pravieniškės Correctional Home authorities ’ decision not to grant him access to Internet. 14. In their written response to the court, the Pravieniškės Correctional Home authorities noted that, although prisoners had a right to address requests and complaints to the State authorities under Article 100 of the Code of the Execution of Sentences (see paragraph 29 below), this meant correspondence by regular post and not via electronic communication. Furthermore, the use of mobile phones in prisons was prohibited so that prisoners could not continue their criminal activity whilst serving a sentence. According to the Pravieniškės Correctional Home authorities, a number of fraudsters had already cheated people of large sums of money with the help of mobile phones. If the prisoners had the right to use Internet, they could pursue criminal activities and could also coordinate the activities of criminal organisations. Lastly, given that postal correspondence between prisoners was not permitted, providing prisoners with access to the Internet would make that prohibition pointless. The same was true regarding the prohibition in the 1 st Annex of the Code of the Execution of Sentences of the prisoners ’ possession of topographic maps (see paragraph 30 below). 15. The Prisons Department also asked the court to dismiss the applicant ’ s complaint, arguing that although Article 96 of the Code of the Execution of Sentences permitted prisoners to use computers (see paragraph 29 below), this did not encompass the right to Internet use. There was no right under Lithuanian law for a prisoner to be provided with Internet access. 16. On 2 February 2007 the Kaunas Regional Administrative Court dismissed the applicant ’ s complaint. Having reviewed the legal provisions regulating prisoners ’ conditions of detention, the court pointed out that the prisoners could communicate with State institutions by postal correspondence and that their letters had to be sent via the prison authorities (see paragraph 33 below). Giving Internet access to prisoners would not be compatible with those legal norms. However, as the Internet was not an object, it was not possible to list Internet among the “ objects ” which the prisoners were not allowed to have in prison. At the same time, from the existing ban on telephone and radio communication devices in prison it was obvious that this ban included the Internet. Such prohibition was aimed at preventing crimes being committed in prison. The court also observed that the requirements were set by order of the prison authorities and were therefore mandatory for the applicant, as he was under an obligation to obey prison orders. 17. The applicant appealed, disputing the lower court ’ s interpretation of domestic law. He also argued that the lower court had ignored the fact that the core of his complaint was the restriction of his right to education and the right to obtain information. The applicant relied on Article 25 of the Constitution (see paragraph 28 below), and Articles 10 and 14 of the Convention. 18. The Pravieniškės Correctional Home authorities replied, indicating that there was “ a secondary school ( vidurinė mokykla ) in the prison where students could access all the literature necessary for their studies. The secondary school graduation exams showed good results ”. Furthermore, the prisoners could pursue computer literacy studies organised by the Elektrėnai vocational school ( Elektrėnų profesinio rengimo centras ), and that institution had not asked for Internet access. The prison thus considered that Internet access, or the lack thereof, had no impact on the quality of studies. 19. On 11 December 2007 the Supreme Administrative Court dismissed the applicant ’ s complaint. The court noted that, for its users, the Internet provided very wide opportunities to use email, to obtain information, to download files, and to sell or buy things. The Internet could be used for more than merely educational purposes. However, the right to use the Internet was not absolute and this right could be restricted to certain social groups. This stemmed from Article 10 of the Code of the Execution of Sentences (see paragraph 29 below). There was no legal provision in Lithuania permitting prisoners to use the Internet. Even so, the prisoners ’ right to have computers could not be interpreted so widely as to encompass the right to have Internet access. The Supreme Administrative Court lastly noted that if prisoners had access to the Internet, the prison authorities would be hampered in their fight against crime by being unable to fully monitor the prisoners ’ activities. 20. On 30 June 2006 the Elektrėnai Vocational Educational Centre ( Elektrėnų profesinio mokymo centras ) awarded the applicant a diploma in computer skills. 21. According to the Government, in 2007-2008 the applicant had attended English language courses and computer literacy courses organised by a secondary school in Kaunas region. B. Conditions of the applicant ’ s detention and seizure of his computer 22. In 2006 the applicant started court proceedings, arguing that in July 2006 he had been held in the Lukiškės Prison for seven days in degrading conditions. Among other things, he also argued that the Lukiškės Prison authorities had seized the personal computer which the applicant had brought with him into prison. 23. On 15 January 2007 the Vilnius Regional Administrative Court dismissed the claim by the applicant as unfounded. 24. In a final ruling of 12 October 2007, the Supreme Administrative Court concluded that the computer had been unlawfully seized by the Lukiškės Prison authorities. However, the court found that the conditions of the applicant ’ s detention had been satisfactory overall, except for a few minor details, and that the gravity of those violations was not such as would amount to inhuman or degrading treatment. C. Denial of extended visits 25. In 2006 the Pravieniškės Correctional Home authorities granted the applicant ’ s request for an extended visit by his parents. However, the applicant later committed a disciplinary offence, and for that reason the extended visit was denied. 26. On 4 May 2007 the Kaunas Regional Administrative Court upheld the refusal of the extended visit as legitimate. 27. By a final ruling of 6 February 2008 the Supreme Administrative Court upheld the lower court ’ s decision. | This case concerned a prisoner’s complaint that he had been refused access to a website run by the Ministry of Education and Science, thus preventing him from receiving education-related information. He had written to that Ministry requesting information about the possibility of enrolling at university in order to acquire a degree in law, and the Ministry had written back to him, informing him that information about study programmes could be found on its website. However, the prison authorities and subsequently the administrative courts all refused to grant the applicant Internet access to this website, essentially referring to the legal ban on prisoners having Internet access (or the ban on prisoners’ telephone and radio communications and implicitly therefore also Internet) and security considerations. |
393 | Mass hunger strikes and use of force by the authorities | I. THE CIRCUMSTANCES OF THE CASE 7. At the time of the events the applicants were serving sentences at Izyaslav Prison no. 31 (further referred to as “Izyaslav Prison” or “the prison”), a minimum security prison, in the Khmelnytskyy region. A. Background facts 1. The prisoners’ hunger strike 8. On 14 January 2007 practically all the inmates of Izyaslav Prison, namely, one thousand one hundred and twenty-one prisoners, including the applicants, went on hunger strike in protest at the conditions of their detention, the poor quality of food and drinking water, inadequate medical assistance, arbitrary punishments by and impunity of officials of the administration, and the absence of any remuneration for their work. They sought the dismissal of some prison officials. 9. On the same date the Deputy Head of the State Department for the Enforcement of Sentences (“the Prisons Department”) visited the prison. A special commission was established upon his order to conduct an investigation into the prisoners’ allegations. The hunger strike was ended. 10. On 16 January 2007, however, the prisoners resumed it on the grounds that the administration had made false statements to the media denying that there had been any protests in the prison. They demanded that journalists be given access to the prison and that the General Prosecutor’s Office (“the GPO”) and the Parliamentary Commissioner for Human Rights (“the Ombudsman”) be notified. 11. Following further negotiations with the Prisons Department’s commission and a visit by the Ombudsman’s representatives to the prison on 17 January 2007, the hunger strike was called off. 2. Preparations for the search and security operation 12. On 20 January 2007 the Deputy Head of the Prisons Department directed the heads of the Zhytomyr and Khmelnytskyy Regional Offices of the Prisons Department to second special forces and rapid reaction units to Izyaslav Prison with a view to providing practical assistance to its administration for “stabilising the operational situation and carrying out searches”. 13. On the same date the requested human resources were deployed to Zamkova Prison (neighbouring Izyaslav Prison), where they remained on standby. 14. On 21 January 2007 the Head of the Khmelnytskyy Regional Office of the Prisons Department approved a plan of the operation, which was scheduled for the following day. It was aimed, in particular, at “detecting and seizing prohibited items ..., and detecting any preparations for escape or other illegal actions”. 15. More specifically, the tasks of the search were set out as follows: “1. To examine the residential wings and workshop ... [and] prisoners with a view to detecting and seizing prohibited items or goods, as well as identifying any preparations for escape. 2. To undertake preventive security measures for enhancing order, and the study – on the part of the prison administration and the rapid reaction units’ staff – of the technical features of risk-prone areas, premises and objects potentially usable for committing large-scale offences. 3. To carry out practical drills with the [prison] administration [staff] in cooperation with the rapid reaction and special forces units by conducting a search of the prison premises, prisoners, and the residential wings. 4. To check: - knowledge of the general search procedures by the [prison] staff; - the equipment of the search groups; - the organisation of the [prison’s] management and communication; and - the procedures applied by the administration for organising and conducting a general search.” 16. The search was scheduled to take place from 8 a.m. to 5 p.m. The last thirty minutes were allocated for “conversations with the prisoners regarding their grievances and complaints against the administration, taking measures in response, and resolution of the prisoners’ lawful demands”. 17. On the same date, 21 January 2007, the Head of the Khmelnytskyy Regional Office of the Prisons Department made the acting governor of Izyaslav Prison responsible for the management of the planned operation. Command over the joint squadron of the rapid reaction groups and general control over “the legality and the conduct of special measures for stabilising the operational situation” in the prison were entrusted to the Prisons Department’s officials. B. Events in Izyaslav Prison on 22 January 2007 1. As per official reports 18. According to a report of 22 January 2007 signed by twelve officials of the Prisons Department and Izyaslav Prison, the search and security operation was conducted from 10 a.m. to 6 p.m. by eighty-six staff members of Izyaslav Prison, eleven officers of a rapid reaction group from Zamkova Prison, eleven officers of a rapid reaction group from Shepetivka Prison, ten staff members of Khmelnytskyy Pre-Trial Detention Centre (“SIZO”) and nineteen officers of the Prisons Department’s interregional special forces unit. 19. The search resulted in the detection and seizure of two mobile phones, a handmade implement for piercing, a pair of scissors, seven razor blades, thirty-four metal bars (found in a toilet), a bottle of glue, a tattooing device, some keys (found in the yard), two packs of playing cards, twelve water boilers, three lighters, and some medicine. 20. As noted in the search report, “measures of physical influence”, including handcuffing, were applied to eight prisoners, including the fourth and the eighteenth applicants. No complaints from prisoners were reported. 21. Following the search, separate reports were drawn up in respect of every case in which the use of force and handcuffing had been resorted to. All those eight reports were worded identically. According to them, the aforementioned measures had been necessitated by the “physical resistance [of the relevant prisoner] to the officers on duty during the search”. 22. As per the medical examination reports signed by the chief of Izyaslav Prison’s medical unit, seven of those eight prisoners had bruises on their buttocks and/or hips. One of them had a wound on his eyebrow and a bruise on his shoulder blade. 23. The fourth applicant had the following injuries documented: bruises on both buttocks measuring 3 x 7 cm and 3 x 6 cm respectively, and another bruise of 3 x 6 cm on the left hip. 24. According to a similar report regarding the eighteenth applicant, he had two bruises on his left shoulder blade and on his left buttock, measuring 4 x 8 cm and 3 x 7 cm respectively. 2. The applicants’ account 25. The applications contained a summary of events based on individual statements by the first, the second, the third, the fourth, the fifth, the sixth, the tenth, the fifteenth, the sixteenth and the eighteenth applicants (see paragraphs 26-108 below). The applicants’ lawyer noted the following in both applications: “All the applicants suffered the described treatment in one way or another. The absence of references to the names of specific applicants does not mean that the events did not touch them personally”. (a) The first applicant 26. On the morning of 22 January 2007 the first applicant was in the high security wing ( дільниця підвищеного контролю – ДПК ). At 10 a.m. the prison governor and several staff members, together with some officials from the Prisons Department, opened cells nos. 2 and 3 and announced to the inmates that they wanted to talk to them in the room normally used for social and psychological work. The prisoners followed as they were, wearing t-shirts and slippers. Once they took their seats, one of the officials started a speech. A minute later a group of about fifty officers with their faces covered by masks stormed into the room. They knocked the prisoners to the floor and started beating them with truncheons, punching and kicking them. There were three to four officers per prisoner. The beating continued for about fifteen minutes. The first applicant had his front teeth kicked out with the first blow. 27. The inmates were then handcuffed with their hands behind their backs. Those who cried out had their mouths scotch-taped shut. They were taken out to the yard, where they were put along the wall with their legs widely spread. A prison van arrived, and the inmates were loaded into it. Many of them had head injuries and were bleeding. Being handcuffed, they could not even wipe the blood away. 28. The van stopped near the disciplinary cell ( дисциплінарний ізолятор ), its door was opened and some more prisoners, also severely beaten and handcuffed, were thrown inside. 29. The van drove further and stopped near the checkpoint between the residential wing and the workshop, where the prisoners were taken out to the shower area. They had to walk through a corridor about fifty metres long, between two lines of officers who were kicking and beating them with truncheons. 30. In the shower area the prisoners were ordered to strip naked, after which they were beaten again and verbally humiliated. Three to four masked officers searched every prisoner. Many of the inmates preferred to leave their clothes behind in order to avoid continuous beating. Half-naked, barefoot (having lost their slippers by then) and tightly handcuffed, the prisoners were again loaded into the prison van. 31. Some time later an order was given to them to get out of the van one by one. The inmates were made to kneel along the wall. An official from the Prisons Department came forward with the files of the twenty-one prisoners who were present and announced that they would be transferred to Rivne SIZO. The handcuffs belonging to the special forces unit were taken off, and the applicants were handcuffed with the handcuffs belonging to the prisoner transport service. The handcuffing was so tight that it impeded the circulation of blood and caused severe pain. 32. The prison van was filled much beyond its capacity. Even before its departure, many inmates fainted. A medical attendant made them regain consciousness with the help of smelling salts. 33. The convoy had only a two-litre bottle of water for all the inmates. Although suffering from thirst, they could only take one or two sips through the bars. 34. The journey continued for over three hours. 35. On arrival at Rivne SIZO, the inmates were beaten again: first by officers near the van and later in the office to which they were taken. The handcuffs were taken off, and the first applicant saw that his hands were swollen and bluish. He was beaten by about six to eight officers present in the room. As if tired of hitting and kicking him, the officers put him on the floor face down, painfully stretching his arms and legs apart, with one officer pressing each limb against the floor. Others were beating him with truncheons. The first applicant’s skin on his legs and buttocks split from the blows. A medical attendant present poured some water on those injuries. 36. According to the first applicant, the level of cruelty inflicted on the prisoners in Rivne SIZO even exceeded that of their earlier ill-treatment in Izyaslav Prison. 37. The medical attendant gave him a blank waiver of any complaints to sign, which he did. 38. The aforementioned took place in the presence of Rivne SIZO’s governor and the Head of the Rivne Regional Office of the Prisons Department. 39. The inmates were placed in four cells each holding five of them. 40. Prisoner O., who had initially been taken with them to Rivne SIZO, was taken back to Izyaslav Prison, as he was to be released five days later (see also paragraph 111 below). 41. The cell was very cold, and the inmates had no warm clothes or even any hot water to drink. 42. Several days later they received an insignificant part of their belongings from Izyaslav Prison. 43. The first applicant, as well as the other inmates, was questioned by the Rivne Prosecutor. Before the questioning, the SIZO administration warned them against raising any complaints. 44. Although seeing the prisoners’ injuries, the prosecutor asked them whether they had been beaten and contented himself with their answers in the negative. 45. The inmates were also made to sign a request for their transfer from Izyaslav Prison to any other penal institution backdated 21 January 2007. 46. During the week after their arrival at the SIZO, they were subjected to beatings for the slightest wrongdoing or without any reason. 47. Thereafter, they were provided with intensive medical care with a view to eliminating any traces of ill-treatment. 48. The prisoners were transferred to different penal institutions across Ukraine. (b) The second applicant 49. The second applicant was in block no. 7. At 10 a.m. he, together with the eighth applicant, was called to the prison’s main block. 50. His description of the subsequent events prior to the prisoners’ transfers to the SIZO is concordant with the account of the first applicant (see paragraphs 26-48 above). 51. In addition, the second applicant specified that they had been put naked against the wall with their legs widely spread. 52. He also submitted having witnessed the following: the fourth, the thirteenth and the eighteenth applicants (together with another prisoner), who were in the medical unit, were dragged from their wards and beaten. Then the officers threw them, one by one, into a sanitation vehicle, covered them with a blanket and started kicking and beating them with rubber truncheons. Then the inmates were taken to the shower area. 53. At about 5 p.m. the second applicant, together with some other prisoners, was taken to Khmelnytskyy SIZO. On their arrival there, they were beaten again and placed in a cold underground cell. 54. The prisoners were afraid to tell the truth to the prosecutor who questioned them on 1 February 2007, as their questioning took place in the presence of SIZO administration officers who had been ill-treating them. They also signed papers stating that they had no complaints. (c) The third applicant 55. The third applicant was in the high security wing at the time of the events in question. Together with the first applicant and some other prisoners, he was taken to a separate room. 56. His description of the events is similar to that of the first applicant. Additionally, he noted that after the group of masked officers stormed into the room, he received several blows with truncheons. Then several officers started kicking and punching him, and he fainted. Once he regained consciousness, he found himself being held by some officers in masks and being kicked by the prison governor. 57. The third applicant emphasised that, being handcuffed with their hands behind their backs, the prisoners were literally thrown into and out of the prison van. Unable to protect their heads, many of them were injured. 58. He refused to comply with the order to kneel (see paragraph 31 above). This triggered beating until he fainted again. During a subsequent body search he was lying on the floor, unable to get up. 59. When the inmates were being loaded into the van, they were surrounded by armed officers with dogs. 60. Given the lack of space and fresh air in the van, the third applicant had problems breathing and asked to be let out. This provoked a new round of beating. 61. The third applicant was in the group of prisoners taken to Rivne SIZO. His account of the events in the SIZO is concordant with that of the first applicant (see paragraphs 35-46 above). 62. He also submitted having been severely beaten there to the point of fainting. The officers present poured some water on him to make him come around. 63. At the SIZO he noticed that the first applicant had had his front teeth knocked out. 64. At Rivne SIZO the inmates had to sleep on a concrete floor for two nights before they were provided with mattresses. 65. Four days after their arrival they received some of their property from Izyaslav Prison. The third applicant provided a detailed list of his belongings which he had not received. It included, in particular, his shoes and clothes, towels, linen and underwear, as well as some books and cigarettes. 66. According to him, he had numerous bruises and sores on his face, a broken nose and a split lip. Although his injuries were visible, the prosecutor ignored them during his questioning and discouraged him from raising any complaints (see also paragraph 133 below). 67. Being scared for his life and health, the third applicant also signed a waiver of any complaints. (d) The fourth applicant 68. The fourth applicant had been an active organiser of the prisoners’ hunger strike. 69. During the night on 13 January 2007 he was called to the main block of the prison where the governor, together with some other members of the administration, threatened him by saying that, if there was a hunger strike, he would risk severe beating or rape by a group of prisoners. 70. On the morning of 22 January 2007 the fourth applicant, together with the thirteenth and the eighteenth applicants and another prisoner, was in the medical unit. The four of them were called to the head of the medical unit’s office, where there were about twenty administration employees present. 71. A few minutes later a group of about ten officers wearing masks stormed into the office, knocked the prisoners down onto the floor, handcuffed them and started hitting them with their faces pressed against the floor. Then the officers threw the inmates, one on top of another, into a van, where they kicked them for about twenty minutes. Thereafter the prisoners were taken to the residential wing where they had to pass between two lines of officers beating them with truncheons. The fourth applicant fainted. 72. He regained consciousness during the body search, which was also accompanied by severe beating. According to the fourth applicant, his beating resulted, in particular, in a permanent scar on his chin. 73. In Khmelnytskyy SIZO, where the fourth applicant was taken together with the other prisoners, there was a rapid reaction group under the leadership of an official from the Khmelnytskyy Regional Office of the Prisons Department (the fourth applicant indicated his name) waiting for them. 74. The prisoners had to “run the gauntlet” through a “corridor” of officers, once again being subjected to constant beating from the officers on either side of them. They were placed in a holding cell. 75. During the first week of their detention there, three to four times every day they were taken, one by one, to an office in the SIZO where the rapid reaction group beat them. Officers put wet towels on the prisoners’ faces and hit them with truncheons on various parts of their bodies. According to the fourth applicant, he fainted on many occasions. 76. The administration also threatened to plant drugs on his parents during their next visit to him and told him that they would also be thrown in jail. 77. Feeling physically and emotionally broken, the fourth applicant denied having any complaints. 78. During his questioning by the prosecutor on 30 January 2007 he started to describe the facts, but was interrupted by a SIZO administration officer present, taken out to the corridor and threatened with more beating. The prosecutor allegedly ignored the fourth applicant’s request to continue their conversation without the presence of the SIZO officials (see also paragraphs 133-134 below). 79. As of end of March 2007 the fourth applicant had not yet received any of his personal belongings from Izyaslav Prison. (e) The fifth applicant 80. The fifth applicant was among the prisoners taken from the high security wing to the room used for social and psychological work on the morning of 22 January 2007. His account of the events is similar to that of the first and the third applicants (see paragraphs 26-48 and 55-65 above). 81. He emphasised the cruelty of the prisoners’ beating. According to him, many of them had their teeth knocked out and their ribs broken. (f) The sixth applicant 82. At about 9 a.m. on 22 January 2007 the sixth applicant was taken out of cell no. 10 in the high security wing where he was being detained. Around twenty officers wearing masks beat him, along with some other prisoners, in the corridor. His further account is similar to that of the first, the third and the fifth applicants (see paragraphs 26-48, 55-65 and 80-81 above). (g) The tenth applicant 83. The tenth applicant described the events of 22 January 2007 as follows: “On 22 January 2007 special forces unit officers wearing masks entered the prison. They brutally beat the prisoners and force-fed them”. 84. He was transferred to Rivne SIZO. His description of the conditions of detention and their treatment there is similar to that given by the first and the third applicants (see paragraphs 35-46, 61 and 64-65 above). 85. According to the tenth applicant, the prosecutor saw their injuries, but ignored them. (h) The fifteenth applicant 86. On the morning of 22 January 2007 the fifteenth applicant was in the high security wing. He supplemented the description of the events of that day given by the first, the third, the fifth and the sixth applicants with the following details. 87. After the special forces unit stormed into the room where the inmates were gathered, the fifteenth applicant was beaten by three officers. One officer stepped on his neck, while he was lying handcuffed on the floor, and beat him with a rubber truncheon on his head and face. Two other officers were kicking him in the kidneys. The fifteenth applicant fainted. 88. He regained consciousness when he was being dragged to the van. He could hardly see anything, as his face was bleeding and he could not wipe the blood away as his hands were handcuffed behind his back. 89. The beating continued before, during and after the body search of the prisoners. The prison governor hit the fifteenth applicant to the back of his head with such force that the applicant fell against a concrete fence, injuring his chin and having a tooth knocked out. 90. For the transfer, the prisoners were handcuffed so tightly that the blood could no longer circulate to their hands. 91. Their transportation to Rivne SIZO lasted for almost four hours. 92. The inmates suffered extremely cruel ill-treatment at the SIZO. Its description is similar to that given by the first applicant (see paragraphs 35 ‑ 48 above). 93. The fifteenth applicant fainted three times and was brought around by cold water being poured on him. 94. During the initial four days of their detention in the SIZO, the former Izyaslav Prison inmates were subjected to regular beatings. They were all forced to sign backdated requests for their transfer to a different penal institution and waivers of complaints. 95. According to the fifteenth applicant, his health seriously deteriorated as a result of the ill-treatment suffered. There was blood in his urine for about a month. He had also suffered several broken ribs on the left side, a tooth had been knocked out and he had suffered cuts on the chin and an eye-brow. 96. As of November 2007 he had not received any of his personal belongings from Izyaslav Prison. (i) The sixteenth applicant 97. As of 22 January 2007 the sixteenth applicant was held in the disciplinary cell in the high security wing. 98. His description of the events of that day is brief, but concordant with that given by the first, the third, the fifth, the sixth and the fifteenth applicants (see paragraphs 26-48, 56-67, 80-82 and 86-94 above). 99. The sixteenth applicant submitted, in particular, that together with some other prisoners he had been taken to the administrative premises, where they were subjected to cruel beatings by a group of masked officers. 100. The inmates were then handcuffed and thrown into a van. 101. At the prison check-point they were searched and beaten again. 102. The sixteenth applicant fainted at some point and only came around later in the van. 103. The inmates were taken to Rivne SIZO, where their ill-treatment continued. They were forced into waiving any complaints. (j) The eighteenth applicant 104. On the morning of 22 January 2007 the eighteenth applicant was in the prison’s medical unit because of a heart condition. 105. Like the other applicants whose accounts are provided above, he alleged having witnessed and suffered severe beatings. 106. As to him personally, he stated that his nose had been broken, his face seriously wounded, his jaw displaced, and his back bruised. 107. The eighteenth applicant was in the group of prisoners transferred to Khmelnytskyy SIZO. 108. According to him, their ill-treatment there continued for a week, until they signed waivers of any complaints and backdated requests for their transfer from Izyaslav Prison elsewhere. 3. Witnesses’ statements 109. The applicants submitted to the Court the transcript of an interview conducted by the 1+1 national television channel (towards the end of January or the beginning of February 2007) with two former prisoners who had been serving sentences in Izyaslav Prison as of 22 January 2007 and had been released shortly thereafter. 110. Mr T. stated that at the time of the events he had been in block no. 7 together with some other inmates including the second and the eighth applicants. On the morning of 22 January 2007 the second and the eighth applicants were taken to the main block. Thereafter, the prison governor and an official from the Prisons Department entered the block and told the inmates that what was about to happen did not concern them and that they were not to pay attention to it. As to the inmates who had been taken to the main block, according to the officials, they had incited the hunger strike and would not be detained in that prison any longer. The remaining prisoners from block no. 7 were then taken to work in the workshop, from where they could see the entrance to the high security wing. They saw around fifty officers wearing masks running inside. The officers’ appearance and equipment suggested that they belonged to a special forces unit. Some time later the officers were pushing the inmates out or carrying them in blankets, constantly kicking them and beating them with truncheons. Then the prisoners were thrown into a prison van as they were, some of them with very little clothing on and barefoot, and afterwards the van left. 111. Mr O. described the events of 22 January 2007 as follows. He had been held in the high security wing. At about 11 a.m. the prison governor entered and told Mr O. and some other inmates to go to the room normally used for social and psychological work. In that room an official from the Prisons Department started a speech in general terms. About two minutes later special forces unit officers wearing masks stormed into the room and commanded everybody to lie on the floor with their faces down and with their hands behind their heads. Mass beating followed. According to Mr O., he witnessed the officers knock the ninth applicant’s teeth out. The floor and the walls of the room were covered with blood. The inmates were handcuffed and dragged out to the corridor, where they had to pass between two lines of officers constantly hitting and kicking them. The prisoners were then loaded into a van and taken to the checkpoint. Once there they were taken to the shower premises and strip-searched. The beating continued. After a body search, the prisoners were again thrown into the van, with their hands still handcuffed, and taken to Rivne SIZO. Upon their arrival there, they were beaten again and forced to sign waivers of any complaints. Mr O. was released three days later, having served his sentence in full. C. Prisoners’ transfers to Khmelnytskyy and Rivne SIZOs and subsequent events 112. Twenty-one prisoners (including the second, the fourth, the seventh, the eighth, the thirteenth, the fourteenth and the eighteenth applicants) were transported to Khmelnytskyy SIZO; while twenty prisoners (including the first, the third, the fifth, the sixth, the ninth, the tenth, the eleventh, the twelfth, the fifteenth and the sixteenth applicants) were transported to Rivne SIZO. None of the prisoners was allowed to collect any warm clothes or other personal belongings. The seventeenth applicant remained in Izyaslav Prison. 113. On 22 January 2007 Khmelnytskyy SIZO’s doctor examined the group of new arrivals. The examination reports documented the absence of any injuries on the second, the seventh, the eighth, the thirteenth and the fourteenth applicants. As to the fourth and the eighteenth applicants, the doctor reported the same injuries as those previously documented in Izyaslav Prison (see paragraphs 23-24 above). 114. There are no documents in the case file concerning any medical examinations of the applicants who were taken to Rivne SIZO. 115. On 30 January 2007 the Prisons Department informed the administrations of Mykolayiv Prison no. 50 and Derzhiv Prison no. 110 that the first, the fifth and the sixth applicants would be transferred to one of these two prisons from Rivne SIZO (along with some other prisoners). According to the letter, they had been actively involved in the organisation of the mass hunger strike in Izyaslav Prison. The administrations were therefore requested “to ensure adequate individual preventive work” was undertaken with those prisoners and “to establish open and concealed control over their behaviour with a view to preventing any breaches of the prison rules” on their part. 116. In early February 2007 the applicants were transferred to different penal institutions across Ukraine (with the exception of the seventeenth applicant, who continued to serve his sentence in Izyaslav Prison). D. Official inquiry by the Prisons Department in respect of the prisoners’ hunger strike 117. On 24 January 2007 the Prisons Department completed its report following an official inquiry into the prisoners’ hunger strike in Izyaslav Prison on 14 and 16 January 2007. It concluded that the incident had become possible owing to the following shortcomings or omissions on the part of the prison administration (the names and posts of the relevant officers were specified in the report, but are omitted from the translation below): “1. The failure of the prison administration to take comprehensive measures for complying with the requirements of the Department and its Regional Office as regards ensuring proper control over prisoners’ behaviour, their respect for procedure and the conditions of serving sentences, as well as [measures] for the coordination of the law-enforcement activities of different services. 2. Low awareness of the operational officials of the prison concerning the ways in which prisoners coalesce into a group of insubordinate prisoners ( засуджені негативної спрямованості ). 3. Reduced control over the performance of the guard shifts on duty, inadequate supervision of prisoners’ behaviour, poor organisation and conduct of searches of prisoners and premises, and inadequate isolation of prisoners. 4. Unsatisfactory educational and explanatory work with prisoners and inadequate familiarisation with their personalities, unbalanced application of incentives to prisoners [the increase of disciplinary measures by fifty-five percent in 2006 as compared to 2005; and the failure to apply legally envisaged incentives to sixty-seven percent of eligible prisoners: on only ten occasions had incentives been applied in 2006]. 5. Inadequate organisation of the workshop activities, lack of control over the compliance with the requirements regarding the safety of and remuneration for prisoners’ labour. 6. Inadequate medical and sanitary [facilities] and material conditions of detention. 7. Loosened requirements towards the subordinate services within the prison as regards prevention of unlawful preparations by groups of prisoners, and inadequate organisation of supervision over their behaviour. 8. Inadequate coordination of and cooperation among various prison services as regards preventive measures with prisoners. 9. Inadequate control and lowered requirements from the Department’s Regional Office towards the prison administration in so far as law enforcement in the prison is concerned.” 118. Overall, the Prisons Department concluded that the activities of the administration of Izyaslav Prison had been aimed at ensuring law and order in the prison, but that the measures undertaken had proved insufficient. 119. On the same date, 24 January 2007, the Prisons Department delivered an order “On significant shortcomings in the activity of Izyaslav Prison no. 31 and the disciplinary liability of those responsible”, by which twenty-four officials were disciplined. In particular, two officials were given warnings about their incompetence in service, two others received severe reprimands and thirteen received ordinary reprimands, two were subjected to disciplinary sanctions which had previously been imposed on them but suspended, and two were not disciplined given their short period of service. 120. The case file also contains a copy of an “Extract from the conclusions of the internal investigation into the hunger strike by a group of prisoners in [Izyaslav Prison] on 14 January 2007” issued on an unspecified date after 24 January 2007 by the Prisons Department commission following its visit to the prison “with a view to studying the operational and financial situation in the prison, the conditions of detention therein, and the reasons for the refusal of prison food by a group of prisoners” (see also paragraph 9 above). The commission established that the prisoners explained their refusal to eat in the prison canteen (while they ate their own food received from outside) as resulting from their reaction to the allegedly biased attitude of the administration, the poor quality of the drinking water, inadequate welfare and sanitary facilities, unjustified disciplinary measures having been taken against certain prisoners, the absence of any remuneration for their work, and the unsatisfactory practices of the prison shop, which allegedly sold expired foodstuffs. 121. The Prisons Department commission concluded that the main reason that some prisoners, which it classed as insubordinate, had organised the refusal of prison food was their intention to have the new management of Izyaslav Prison dismissed. The commission stated that the prison’s new management had attempted to restore the order and discipline loosened by the previous administration. 122. The commission reported, in particular, that the measures taken had stabilised the security situation and that forty organisers of the hunger strike had been transferred to different penal institutions. 123. On 5 February, 10 April and 2 May 2007 the Donetsk Memorial NGO asked the Deputy Head of the Prisons Department, who had visited Izyaslav Prison in January 2007, to provide a complete report on the investigation into the events there. The NGO enquired, in particular, whether the prisoners’ complaints had been investigated at all and, if so, what the results of that investigation had been, and how the substance of their complaints (regarding the allegedly inadequate drinking water and food in prison, the sale of expired goods by the prison shop, and so on) could have justified the search and security operation undertaken. It also requested information on any specific incidents of prisoners’ disobedience or resistance to the administration. 124. By letters of 21 May and 6 June 2007, the Deputy Head of the Prisons Department replied to Donetsk Memorial stating that all the prisoners’ complaints had been duly looked into, with no further details provided. The main reason for some prisoners having encouraged others to refuse prison food had been an attempt to establish illegal trafficking channels in the prison and to undermine the lawful prison regime. The search and security operation had been thoroughly prepared and conducted, without any unjustified resort to force. As to the involvement of civil society and the media in the investigation process, no NGOs had requested this, whereas some journalists had been allowed access to the prison. E. Investigation into the prisoners’ alleged ill-treatment 125. Following the events of 22 January 2007, the applicants’ relatives had no information about the applicants’ whereabouts and were not allowed to visit them. 126. Many of their relatives complained to various authorities – the Ombudsman, the Khmelnytskyy and Rivne Regional Prosecutor’s Offices, the administration of Izyaslav Prison and the Prisons Department – about the alleged ill-treatment of the applicants, their arbitrary transfer to different penal institutions and the loss of the applicants’ personal belongings. In particular, relatives of the second, the third, the fourth, the sixth, the eighth and the ninth applicants raised such complaints before the prosecution authorities. 127. On 26 January 2007 the Kharkiv Human Rights Protection Group (“the KHRPG”) NGO wrote to the GPO, stating that it had become aware of the alleged beating of prisoners in Izyaslav Prison by masked special forces officers and requested an independent investigation without the involvement of the local prosecution authorities. The GPO forwarded this complaint to the Khmelnytskyy Regional Prosecutor’s Office, which, in turn, referred it to the Shepetivka (a town in the Khmelnytskyy Region) Prosecutor in charge of supervision of compliance with the law in penal institutions (“the Shepetivka Prosecutor”). 128. On 29 January 2007 some mass-media outlets (in particular, the 1+1 national TV channel and the Segodnia newspaper) disseminated information about the mass beating of inmates in Izyaslav Prison on 22 January 2007 (see also paragraphs 109-111 above). 129. On 30 January 2007 the Khmelnytskyy Regional Prosecutor’s Office questioned the second, the fourth, the seventh, the eighth, the thirteenth, the fourteenth and the eighteenth applicants, who were detained at the time in Khmelnytskyy SIZO. Their statements are summarised in paragraphs 133-135 below. 130. On the same date the Khmelnytskyy Prosecutor asked the Khmelnytskyy Regional Bureau of Forensic Medical Examinations to carry out forensic medical examinations of the seven applicants detained in the Khmelnytskyy SIZO (see paragraph 112 above). As noted in the request, the examination was required “in connection with the investigation”. The questions to the expert read as follows: “Does the convict have any bodily injuries? If so, what are they, what is their nature, location, seriousness, means [by which they were inflicted] and time of infliction?” 131. On 1 February 2007 the Khmelnytskyy Prosecutor’s Office asked the Rivne Regional Prosecutor’s Office, in charge of supervision of compliance with the law in penal institutions, to question the twenty former inmates of Izyaslav Prison (including the first, the third, the fifth, the sixth, the ninth, the tenth, the eleventh, the twelfth, the fifteenth and the sixteenth applicants) about the events of 22 January 2007 with a view to verifying the allegations of ill-treatment of prisoners. 132. On 2 February 2007 the Rivne Prosecutor’s Office complied with this request. 133. The written explanations given by the applicants (with the exception of the seventeenth applicant, who was detained in Izyaslav Prison) to the Khmelnytskyy or Rivne Prosecutor can be summarised as follows: - The first applicant stated that, although he had been disciplined several times in Izyaslav Prison, he considered the sanctions fair and justified. According to him, he had not personally refused to eat in the prison canteen and he did not know why the other prisoners had done so. The first applicant denied having seen or experienced any ill-treatment during the search operation on 22 January 2007. He stated that he had no complaints against the prison administration. - The second applicant explained his refusal to eat canteen food as solidarity with the others and stated that he had no complaints to raise. - The third applicant submitted that the disciplinary measures which had been applied to him on several occasions in Izyaslav Prison had been justified and that he had nothing to complain about either. - The fourth applicant explained his refusal to eat in the canteen as a protest against the inappropriate treatment of prisoners by the administration, frequent beatings and arbitrary disciplinary sanctions. In reply to a question as to whether the officers conducting the search had been wearing masks, he replied that he had been made to lie on the floor with his face down and therefore had not been able to see anything. The fourth applicant denied having been subjected to or having witnessed any beatings or other ill-treatment during the operation in question. He stated that he had no complaints. When asked about the medical examination report of 22 January 2007 stating that he had some injuries (see paragraphs 23 and 113 above), the fourth applicant submitted that he could not give any explanations in that regard. - The fifth applicant also considered the disciplinary measures against him in Izyaslav Prison to have been merited. He explained his refusal to eat in the canteen as reflecting the fact that he had just received a food parcel from relatives. The fifth applicant denied any knowledge of the reasons for the prisoners’ hunger strike or his involvement in its organisation. Likewise, he denied any allegations of ill-treatment or having seen officers wearing masks. - The sixth applicant refused to give any explanations, making reference to Article 63 of the Constitution (see paragraph 196 below). At the same time, he noted that he had no injuries or complaints. He also refused to undergo a medical examination. The ninth, the eleventh, the twelfth and the fifteenth applicants took a similar position. - The seventh applicant submitted that he had been hit (or kicked – it is not clear from the wording used) during the search, with no trace having been left. He denied having witnessed any ill-treatment. - The eighth applicant explained his refusal to eat canteen food as solidarity with other prisoners and stated that he had no complaints. A similar statement was made by the eighteenth applicant. - The tenth and the fourteenth applicants denied any allegations of ill ‑ treatment of prisoners and stated that they had no complaints. - The thirteenth applicant submitted that he had refused to eat in the canteen in protest at searches in the prison’s living areas and the inadequate quality of the drinking water. He also denied having any complaints. - The sixteenth applicant referred to some problems with correspondence and parcels in Izyaslav Prison as the reasons for his participation in the hunger strike. Like the other applicants, he stated that he had no complaints to report. He refused to undergo a medical examination. 134. According to the applicants’ submissions before the Court, the aforementioned questioning sessions took place in the presence of SIZO administration officers and following threats of ill-treatment. Their visible injuries were allegedly disregarded (see also paragraphs 44, 66 and 85 above). 135. In addition to a written waiver of any complaints, the applicants submit that they were made to sign requests for their transfer from Izyaslav Prison to any other penal institution backdated 21 January 2007. 136. On 2 February 2007 an expert from the Khmelnytskyy Regional Bureau of Forensic Medical Examinations issued identically worded reports in respect of the second, the seventh, the eighth, the thirteenth and the fourteenth applicants, which read as follows: “Circumstances of the case: not indicated in the assignment. The examinee has not indicated the circumstances of the case. Examination Complaints: none. Objectively: no external bodily injuries discovered. Conclusion: As of 30 January 2007 no bodily injuries have been discovered on [the name of the relevant applicant].” The expert noted that the chief of the SIZO medical unit had been present during the examinations. 137. According to the examination report regarding the fourth applicant, he had a bruise of 5 x 4 cm on the left buttock, which could have been inflicted by a blunt hard object with a small surface area, that had developed as a result of a blow some eight or nine days prior to the examination (carried out on 30 January 2007). The expert concluded that the nature and the age of the bruise were in conformity with the fourth applicant’s submission that he had been hit with a rubber truncheon on 22 January 2007. No other injuries were reported. 138. A similar report in respect of the eighteenth applicant stated that the only injury he had was a bruise of 4 x 3.5 cm on his left buttock. It could have been inflicted at the time and in the circumstances described by the eighteenth applicant (a blow by a rubber truncheon on 22 January 2007). 139. There is no information in the case file as to whether the applicants held in Rivne SIZO were also examined by forensic medical experts. 140. In the end of January and in early February 2007 the prosecution authorities also questioned the officials involved in the search and security operation on 22 January 2007. 141. The acting governor of Izyaslav Prison and several special forces and rapid reaction unit officers stated that the operation had been conducted according to the duly approved plan and in compliance with the law, without any resort to violence (with the exception of physical force having been applied to eight prisoners following their resistance). 142. The chief of the interregional special forces unit submitted that his subordinates had been instructed not to take, and had not taken, any special means of restraint with them to the prison. According to him, the search had been orderly and had been conducted without any resort to coercion. 143. The chiefs of the rapid reaction groups made a similar statement. 144. The Izyaslav Prison guards who had participated in or witnessed the use of force against the fourth and the eighteenth applicants stated that those applicants had been using obscene language regarding the prison administration. As a result, a rubber truncheon and handcuffing had been used against them. 145. On 5 February 2007 the Shepetivka Prosecutor initiated disciplinary proceedings against the acting governor of Izyaslav Prison, who had been required (under paragraph 58 of the Internal Regulations of Penal Institutions approved by Order no. 275 of 25 December 2003 – see paragraph 200 below) to inform the prosecutor in charge of supervision of compliance with the law in penal institutions about the search of 22 January 2007 in advance, but who had failed to do so. As a result, the due prosecutorial supervision had not been in place with a view to ensuring the legality of the search operation and to investigate the use of force and special means of restraint on the eight prisoners (see paragraphs 20-24 above), as well as to assess the legality of the transfer of the forty-one prisoners to Khmelnytskyy and Rivne SIZOs (see paragraph 112 above). The ruling was referred to the Khmelnytskyy Regional Office of the Prisons Department for it to impose disciplinary liability on the acting governor of Izyaslav Prison. 146. On 7 February 2007 the Shepetivka Prosecutor delivered a ruling refusing to institute criminal proceedings against the prison administration and the other authorities concerned regarding the events in Izyaslav Prison on 22 January 2007. As noted in the ruling, the investigation had been triggered by information disseminated by the media (in particular, on 29 January 2007 by the 1+1 TV channel and in the Segodnia newspaper – see paragraphs 109-111 and 128 above) about the mass beating of inmates in Izyaslav Prison during the search and security operation on 22 January 2007. The prosecutor concluded that physical force had only been used against eight prisoners (with the fourth and the eighteenth applicants being among them) in response to their resistance. As confirmed by the explanations given by the prison administration, the special forces and rapid reaction units’ officers, and by the prisoners themselves, the allegations of a mass beating had proved unsubstantiated. 147. According to the applicants, they were not notified of this ruling. 148. By letter of 13 March 2007, the GPO informed the KHRPG (see paragraph 127 above) that a thorough investigation had been undertaken and that no violations had been found. As noted in that letter, the involvement of the special forces unit and the rapid reaction groups had been necessitated by the complicated security situation in Izyaslav Prison, unruly prisoners inciting other inmates to refuse prison food, displays of disobedience, insolent behaviour, and resistance to the administration’s attempts to seize prohibited items. The general search had resulted in the identification and seizure of sixty-four prohibited items. The use of force had been limited to eight prisoners and had been legitimate. Given overcrowding in Izyaslav Prison, some prisoners had been transferred, via Khmelnytskyy and Rivne SIZOs, to other penal institutions. 149. On 10 April 2007 the Prisons Department wrote to the mother of the second applicant, in reply to her complaints about his alleged ill ‑ treatment and his transfer to a different prison, stating that these complaints had been found to be unsubstantiated. The official noted that the second applicant had had a bad reputation and had been inciting other prisoners to take part in a hunger strike. He had himself denied having any complaints. As for his transfer to a different prison, it had been in compliance with the law. 150. On 12 April 2007 the KHRPG asked the Ombudsman to provide information about the visit of her representatives to Izyaslav Prison in January 2007. 151. On 17 April 2007 the mother of the second applicant complained to the Izyaslav Prison’s governor that her son’s belongings had been left behind in that prison after his transfer. As she found out, his cellmates had packed them, but the belongings had probably been expropriated by the prison staff members. She submitted a detailed list of the missing items. 152. On 27 April 2007 the governor of Izyaslav Prison replied that the second applicant had been transferred to another prison at his own request and that all his belongings had been collected and sent on to him. The allegation that his property had been taken by prison staff members was dismissed as unsubstantiated. 153. On 27 April 2007 the Ombudsman’s office replied to the KHRPG that it was under no obligation to report on investigations in progress. 154. According to an information note issued by the Prisons Department on an unspecified date, starting from 3 January 2007 the following complaints had been registered by the Khmelnytskyy Regional Office of the Prisons Department in respect of the loss of personal belongings by prisoners in Izyaslav Prison: complaints from the relatives of the second, the third, the fourth, the fifth and the sixth applicants. No other complaints had been received. 155. According to an information note issued by the house-keeping unit of Izyaslav Prison on an unspecified date, as of 22 January 2007 there was no property in the prison warehouse belonging to the first, the third, the fifth, the seventh, the eighth, the ninth, the twelfth, the thirteenth, the sixteenth, the seventeenth and the eighteenth applicants. 156. On 30 April, 4 and 11 May 2007 the Khmelnytskyy Regional Office of the Prisons Department announced that it had completed its inquiry into the complaints made by the sixth, the second and the third applicants, respectively (introduced on unspecified dates), regarding the events of 22 January 2007. These reports relied on the prosecutor’s decision of 7 February 2007 (see paragraph 146 above) and were approved by the Prisons Department’s officials directly involved in the organisation and implementation of the operation in question (see paragraph 17 above). 157. On 4 May 2007 the Rivne Prosecutor wrote to the mother of the ninth applicant in reply to her complaints that her son had been transferred to Rivne SIZO together with twenty other prisoners, stating that this had occurred following his resistance to lawful requirements of the prison administration and the mass hunger strike. The prosecutor pointed out that the ninth applicant had himself refused to give any statements, making reference to Article 63 of the Constitution. He and the other new arrivals had been examined by a doctor at the SIZO, with no injuries or health ‑ related complaints having been documented. 158. On 7 May 2007 the mothers of the second and the third applicants complained to the GPO once again about the alleged beating of their sons and the loss of their property. They also noted that their earlier complaints had been forwarded to the Prisons Department and dismissed by officials who had been directly involved in the events complained of. 159. On 17 May 2007 the Khmelnytskyy Regional Office of the Prisons Department delivered a report completing its inquiry into the complaints made by the mother of the fourth applicant about the alleged loss of his property and money. It held that he had received his personal belongings in full following his transfer to a different prison and that he had himself withdrawn the money he had in his personal account (200 Ukrainian hryvnias, the equivalent of about 30 euros). Accordingly, the complaints were dismissed as unfounded. The report was signed by one of the Department’s officials involved in the organisation of the search operation in Izyaslav Prison (see paragraph 17 above). 160. On 22 May 2007 the Khmelnytskyy Prosecutor wrote to the sixth applicant with the results of the investigation into his allegation that his personal belongings had been lost or destroyed. The investigation had found that all his belongings had been sent to Rivne SIZO following his transfer there. 161. On 30 May 2007 the Khmelnytskyy Regional Office of the Prisons Department declared that it had completed its inquiry into the complaints made by the fourth applicant’s mother concerning his ill-treatment during the search operation. With reference to the prosecutor’s ruling of 7 February 2007 (see paragraph 146 above), the inquiry concluded that force had legitimately been applied against the fourth applicant. As to her complaint regarding the conditions of detention in Izyaslav Prison, those conditions were found to be in compliance with legal requirements. The inquiry report was approved by a Prisons Department official who had been among those in charge of the organisation of the search operation of 22 January 2007 (see paragraph 17 above). 162. On 31 May 2007 the Khmelnytskyy Prosecutor also wrote to the mothers of the third, the fourth and the ninth applicants informing them that their complaints had been investigated and dismissed as unsubstantiated. 163. On 5 July 2007 the sixth applicant injured himself with a metal hanger in protest at the allegedly inadequate investigation of the events in Izyaslav Prison on 22 January 2007. 164. On 6 July 2007 the GPO wrote to the mothers of the second and the eighth applicants, making reference to the ruling of 7 February 2007, stating that the allegations of their sons’ ill-treatment had been groundless. As to the conditions of their detention, the prosecutor’s office had already intervened and the prison administration had taken measures to improve the situation. 165. On 10 July 2007 the Lviv Regional Prosecutor (who became involved following the sixth applicant’s transfer to a penitentiary in the Lviv region) questioned the sixth applicant in respect of his self-harming on 5 July 2007 and regarding his alleged beating on 22 January 2007. 166. On 11 July 2007 the prosecutor also questioned the fifth applicant as part of the investigation into the sixth applicant’s self-harming and the prisoners’ alleged ill-treatment in Izyaslav Prison. The fifth applicant mentioned having been beaten with truncheons on 22 January 2007. 167. On 18 July 2007 the Khmelnytskyy Regional Office of the Prisons Department declared that it had completed its inquiry into the complaints made by the fifth applicant regarding his and other prisoners’ ill-treatment. The allegations were dismissed as unsubstantiated, with reference being made to the prosecutor’s ruling of 7 February 2007. The same conclusion was drawn in respect of the fifth applicant’s complaint about the alleged loss of his property following his transfer from Izyaslav Prison. The inquiry report was signed by one of the officials involved in the search operation in question (see paragraph 17 above). 168. On 30 July 2007 the sixth applicant stated during his questioning by the Shepetivka Prosecutor that he and some other prisoners, including, in particular, the first and the fifth applicants, had been beaten during the search operation on 22 January 2007. 169. On 31 July 2007 the fifth applicant made another statement to the prosecution authorities about the beatings of prisoners, including himself, in the course of and after the search operation on 22 January 2007. 170. In August 2007 the Shepetivka Prosecutor also questioned officials from the administration of Izyaslav Prison and some prisoners about the events of 22 January 2007, all of whom denied that there had been any ill ‑ treatment. 171. On 29 August 2007 the Shepetivka Prosecutor issued a ruling refusing to open a criminal case in respect of the officials of Izyaslav Prison, the special forces unit under the Zhytomyr Regional Office of the Prisons Department and the members of the rapid reaction units of Zamkova Prison, Shepetivka Prison and Khmelnytskyy SIZO for a lack of corpus delicti in their actions. The ruling was delivered following an investigation of the sixth applicant’s complaints in respect of the events of 22 January 2007. The prosecutor noted that on 19 January 2007 the sixth applicant had been placed in a solitary confinement cell for three months “for resistance to the administration and inciting prisoners to commit unlawful acts”. During the search operation no force had been applied to him, which had been confirmed by the written statements of the officials involved and the prisoners. Furthermore, on 7 February 2007 the prosecution authorities had already refused to open a criminal case in the matter. 172. On 3 September 2007 the Khmelnytskyy Prosecutor quashed the ruling of 29 August 2007 as premature and not based on a comprehensive investigation. He noted, in particular, that not all the prisoners involved had been questioned. Furthermore, a similar allegation by the fifth applicant remained unverified. 173. On 10 September 2007 the Shepetivka Prosecutor again refused to initiate the criminal prosecution of the prison administration and the special units’ staff involved in the operation in Izyaslav Prison. 174. On 26 January 2008 the tenth applicant complained to the GPO about the mass beating of Izyaslav Prison’s inmates by masked special forces unit officers on 22 January 2007 and about the prisoners’ hasty transfers to the SIZOs without any personal belongings. He submitted that all his earlier statements had been given under duress and should be disregarded. The tenth applicant also noted that, after his transfer to Pervomaysk Prison no. 117, he had been placed, allegedly without reason, in solitary confinement for three months. 175. On 14 May 2008 the Khmelnytskyy Prosecutor, to whom the above complaint had been referred, replied to the tenth applicant stating that the allegations raised by him had already been dismissed as unfounded by the prosecutor’s ruling of 7 February 2007 (see paragraph 146 above). It was open to the tenth applicant to challenge that ruling if he wished to do so. 176. On 16 July 2008 the sixth applicant’s lawyer (Mr Bushchenko, who also represented the applicants in the proceedings before the Court) challenged the refusal of 7 February 2007 before the Shepetivka City Court (“the Shepetivka Court”). He submitted that the sixth applicant had been among the prisoners beaten in Izyaslav Prison on 22 January 2007. According to him, the sixth applicant had only received a copy of the ruling of 7 February 2007 on 11 July 2008. The lawyer contended that the Shepetivka Prosecutor could not be regarded as an independent and impartial authority, because according to paragraph 58 of the Internal Regulations of Penal Institutions approved by Order no. 275 of 25 December 2003 (see paragraph 200 below), he had been supposed to be notified of the search of 22 January 2007 and to supervise its implementation. The lawyer also claimed that the investigation had been superficial. He noted, in particular, that the first, the third, the fourth, the tenth, the sixteenth and the eighteenth applicants had also complained to various authorities about the alleged mass beating on 22 January 2007, but that their complaints, as well as the complaints of the sixth applicant, had remained without due consideration. He further submitted that the impugned ruling of 7 February 2007 had been based on statements by the prisoners which had later been retracted by them as having been obtained under duress (such as, for example, that of the tenth applicant). The prosecution authorities had failed to ensure the safety of the prisoners in question, who had continued to be intimidated and ill-treated after the events of 22 January 2007. He noted that the fourth applicant had been so scared that he had denied any force having been applied to him, even though there was a medical certificate in the file proving the opposite. The investigation had not covered the alleged ill-treatment of all the prisoners concerned, including the first, the third, the fourth, the tenth, the sixteenth and the eighteenth applicants, who had also raised similar complaints. 177. On 24 July 2008 the Shepetivka Court ruled that this complaint should be left without examination, as it had been submitted in Russian and not all the annexes listed had actually been enclosed with the filing. 178. On 29 August 2008 the Khmelnytskyy Regional Court of Appeal (“the Court of Appeal”) quashed the ruling of 24 July 2008 as having been delivered in excess of the first-instance court’s powers under the Code of Criminal Procedure. 179. On 30 December 2008 the Shepetivka Court rejected the complaint brought by the sixth applicant’s lawyer and upheld the contested ruling of 7 February 2007. The court dismissed as unsubstantiated the lawyer’s submission that the prosecution authorities had not ensured the safety of the prisoners, who had initially been intimidated and discouraged from raising any complaints, but had later complained to various authorities. In particular, the first, the third, the fourth, the sixth, the tenth, the sixteenth and the eighteenth applicants were referred to. The court concluded that the allegations had been duly investigated and that they had rightly been dismissed as unfounded. It also referred to the ruling of the Shepetivka Prosecutor of 29 August 2007 (see paragraph 171 above). 180. On 16 March 2009 the Court of Appeal upheld that decision. 181. On 22 December 2009 the Supreme Court quashed the ruling of 16 March 2009 on the grounds that it had been delivered following a hearing in the absence of the sixth applicant’s lawyer. 182. On 24 March 2010 the Court of Appeal quashed the decision of 30 December 2008 as being devoid of adequate reasoning. It remitted the case back to the Shepetivka Court. 183. On 14 October 2010 the Shepetivka Court rejected the complaint brought by the sixth applicant’s lawyer as unsubstantiated. It noted that the ill-treatment allegations were not corroborated by evidence. In any event, there had been a thorough investigation into the matter. 184. The sixth applicant’s lawyer appealed. He submitted, in particular, that not all the victims of the alleged ill-treatment had been questioned in the course of the investigation. Furthermore, the first-instance court had selectively relied on the statements of the prisoners denying any ill ‑ treatment while ignoring the numerous eye-witness statements supporting that allegation. Thus, the sixth applicant’s allegations had been supported by detailed accounts of the events by the first, the third, the fourth, the sixteenth, and the eighteenth applicants, whose written statements were in the case file but which had remained without assessment. The allegation that the prisoners had been intimidated had not been considered at all. No attempts had been made to clarify whether the prisoners who had been injured according to the official reports had actually demonstrated any resistance to the authorities as stated in those reports. According to the search reports, no forbidden items had been discovered on those persons. So, there had been no apparent reasons for them to show any resistance. Furthermore, while it was acknowledged that some prisoners had been injured, the information in the official reports about the use of physical force and the nature of the injuries in question did not reconcile. Thus, for example, according to the reports regarding the fourth and the eighteenth applicants, physical force and handcuffing had been applied to them. At the same time, the medical examination reports had noted that the fourth applicant had suffered bruises on the right and the left buttocks and on one thigh; the eighteenth applicant had suffered a bruise on the left shoulder blade and the left buttock. The nature of the physical force applied had never been analysed. Lastly, the lawyer contended that the court had ignored the fact that the prosecution authorities had relied exclusively on the documents issued by the prison administration. 185. On 15 December 2010 the Court of Appeal quashed the ruling of 14 October 2010 and remitted the case to the first-instance court for fresh examination. It noted that, according to the transcript of the hearing, the Shepetivka Court had pronounced the judgment on 13 October, but for unknown reasons it was dated 14 October 2010. Furthermore, the ruling of 7 February 2007 had not directly concerned the interests of the sixth applicant, whose complaint had later been examined by the prosecution authorities and rejected on 29 August 2007. This last-mentioned ruling had not been duly examined by the court at all. The appellate court also noted some irregularities and inconsistencies in the case file. It further held that the first-instance court had acted in breach of the law, having heard the case in the absence of the sixth applicant or his lawyer. In sum, a fresh examination of the case in compliance with criminal procedural legislation was required. 186. On 29 March 2011 the Shepetivka Court rejected, once again, the sixth applicant’s complaint. It noted that the impugned ruling of 7 February 2007 had not directly concerned his interests and that his complaint had been separately investigated by the prosecution authorities. As a result, on 10 September 2007 the Shepetivka Prosecutor had refused to open a criminal case in the matter (see paragraph 173 above). A copy of that ruling had been sent to the governor of Derzhiv Prison, to which the sixth applicant had been transferred in the meantime. However, the sixth applicant had not challenged the refusal. 187. The sixth applicant appealed. He submitted that he had been among the victims of the mass beating in Izyaslav Prison on 22 January 2007. Accordingly, he considered that the prosecutor’s ruling of 7 February 2007 had directly concerned his interests. As to the ruling of 10 September 2007 referred to by the first-instance court, neither the sixth applicant nor his lawyer had ever been notified of it and had only found out about its existence in the course of the latest proceedings. 188. On 25 May 2011 the Court of Appeal allowed the appeal of the sixth applicant in part and quashed the decision of 29 March 2011. At the same time, it discontinued the proceedings on the basis that on 10 September 2007 the prosecution authorities had issued a ruling refusing to institute a criminal investigation into the matter which had not been challenged by the sixth applicant. It noted that a copy of the aforementioned ruling had been sent to the governor of Derzhiv Prison. 189. On 8 June 2011 the sixth applicant challenged the ruling of 10 September 2007 before the Shepetivka Court. 190. On 8 July 2011 the Shepetivka Court quashed the contested ruling in allowing his complaint, and ordered additional investigation. 191. On 2 August 2011 an official of the Shepetivka Prosecutor’s Office again refused to open a criminal case in respect of the administration of Izyaslav Prison and the special forces and the rapid reaction units’ officials for a lack of corpus delicti in their actions. The sixth applicant challenged that ruling before the Shepetivka Court too. 192. On 20 September 2011 another official of the Shepetivka Prosecutor’s Office quashed the ruling of 2 August 2011 as having been based on an incomplete investigation. 193. On 22 September 2011 the Shepetivka Court discontinued its examination of the sixth applicant’s complaint, as the contested ruling of 2 August 2011 had already been quashed in the meantime. 194. On 20 December 2011 the Higher Specialised Court for Civil and Criminal Matters quashed the ruling of the Court of Appeal of 25 May 2011 (see paragraph 188 above) and remitted the case for fresh appellate examination. It criticised the reasoning of the appellate court as being too general and lacking an adequate legal basis. 195. The parties have not submitted to the Court any information on further developments in the proceedings. | In January 2007 the applicants, who were all serving prison sentences, took part in a hunger strike with other prisoners to protest about their conditions of detention. A week later the prison authorities conducted a security operation using officers and special forces. Immediately after the search, a group of prisoners whom the authorities considered to be the organisers of the hunger strike, including the applicants, were transferred to other detention facilities. The applicants complained of having been ill-treated during and after the security operation, and that the investigation into these allegations had been ineffective. They further submitted that their personal belongings had not all been returned to them following their hasty transfer to different detention facilities. |
201 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1975. 5. On 30 January 2001, in the context of an operation carried out against the illegal armed organisation Hizbullah (“Party of God”), the applicant was arrested and taken into police custody. 6. The applicant signed a “form explaining the rights of arrested persons” and was notified of the charges against him. He was informed of his right to remain silent and to see a lawyer at the end of the police custody period. The police questioned him. The applicant exercised his right to remain silent. 7. A search was carried out at the applicant ’ s home. The police seized an audio-cassette. The transcript of the tape was worded as follows: “The tape is, for the most part, inaudible. There are incomprehensible speeches in Kurdish. It also contains songs, in which the word ‘ sharia ’ can be heard, but the sentences are also incomprehensible.” 8. Throughout this period, the applicant continued to remain silent. 9. On 3 February 2001 the applicant was placed in pre-trial detention by a judge of the Siirt Police Court. 10. In an indictment dated 9 February 2001, the applicant and three other persons were charged with being members of Hizbullah by the public prosecutor at the Diyarbakır State Security Court. The latter called for the applicant ’ s conviction on the basis of Article 168 § 2 of the Criminal Code. 11. The first hearing took place on 10 April 2001 before the Diyarbakir State Security Court (“the State Security Court ”). The applicant, assisted by his lawyer, denied all the charges against him. He claimed that the audio-cassette seized from his home belonged to his mother and that he did not know what was on it. 12. At the hearing on 29 May 2001 the judges read out statements by five other persons charged in separate criminal proceedings concerning the same organisation, which named the applicant as one of the leading members of the organisation. The accused were also shown seized documents pertaining to the organisation. Counsel for the applicant addressed the court and argued that the elements constituting the offence had not been made out. He claimed that the applicant should be tried for aiding and abetting an illegal organisation on the basis of Article 169 of the Criminal Code, and not for belonging to such an organisation. He did not ask to call any witnesses. 13. During the hearings of 17 July, 11 September and 6 November 2001 the applicant ’ s lawyer repeated his previous submissions and requested that his client benefit from the provisions of the Amnesty Act (Law no. 4616). 14. The applicant argued his case at the hearing of 4 December 2001. He claimed to have no ties with the organisation in question and asked to be acquitted. His lawyer also addressed the court and referred once again to the defence pleadings that he had filed during the trial, requesting, under Law no. 4616, a stay of the proceedings brought against his client. 15. At the end of the hearing, the State Security Court sentenced the applicant to twelve years and six months ’ imprisonment on the basis of Article 168 § 2 of the Criminal Code. 16. In support of its decision, the court took into account all the reports and documents in the case file. In particular, it gave consideration to the statements naming the applicant as one of the leading members of the organisation. It also based its decision on a document which showed the applicant ’ s position within the organisation. The court found it established, among other things, that the applicant was an active member of the organisation. 17. The applicant ’ s lawyer lodged an appeal on points of law against the judgment of 4 December 2001 on behalf of his client. 18. On 18 March 2002 the Principal Public Prosecutor at the Court of Cassation submitted his opinion on the merits of the appeal. This opinion was not sent to either the applicant or his lawyer. 19. Following a hearing on 27 May 2002, the Court of Cassation upheld all the provisions of the impugned judgment. Its judgment was delivered on 29 May 2002 with neither the applicant nor his lawyer present. 20. On 19 August 2002 the full text of the Court of Cassation ’ s judgment was added to the case file kept at the registry of the Diyarbakır State Security Court and was thus made available to the parties. | The applicant, who was charged with, and subsequently convicted of, being a Hezbollah member, did not have the assistance of a lawyer while he was in police custody. |
834 | Searches and seizures carried out at a lawyer’s offices or home | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 6. Mr Niemietz lives in Freiburg im Breisgau, Germany, where he practises as a lawyer ( Rechtsanwalt ). 7. On 9 December 1985 a letter was sent by telefax from the Freiburg post office to Judge Miosga of the Freising District Court ( Amtsgericht ). It related to criminal proceedings for insulting behaviour ( Beleidigung ) pending before that court against Mr J., an employer who refused to deduct from his employees ’ salaries and pay over to the tax office the Church tax to which they were liable. The letter bore the signature of one Klaus Wegner - possibly a fictitious person -, followed by the words "on behalf of the Anti-clerical Working Group ( Antiklerikaler Arbeitskreis ) of the Freiburg Bunte Liste (multi-coloured group)" and a post-office box number. It read as follows: "On 10.12.1985 the trial against Mr [J.] will take place before you. We, the Anti-clerical Working Group of the Freiburg Bunte Liste, protest most strongly about these proceedings. In the FRG, the Church, on the basis of the Hitler concordat and in violation of the State ’ s duty to maintain neutrality, enjoys most extensive privileges. As a result, every non-Christian citizen of this State has to suffer disadvantages and daily annoyance. Among other things, the FRG is the only State which acts as Church-tax collector. It requires employers, whether they be Christians or not, to pay over Church tax for their Christian employees and thus relieve the Church of financial administrative work. [J.] has, for years, courageously and consistently refused to support the financing of the Church in this way and has made an appropriate arrangement whereby the Church tax of his Christian employees is paid without his own involvement. This attempt - in a State which counts the separation of State and Church among its basic principles - to insist upon just such a separation has not only exposed [J.] to persistent vexation and interferences on the part of State authorities, culminating in the tax office employing coercive measures, such as attachment, to collect from him Church tax which his employees had already paid a long time previously. It has in addition involved him - when he called these underhand methods by their name - in the present proceedings for alleged insulting behaviour. Were it your task as the competent judge to conduct an unbiased examination of this ‘ case of insulting behaviour ’, then it must be said that you have not only failed to carry out this task, but also abused your office in order to try - by means which give a warning and a reminder of the darkest chapters of German legal history - to break the backbone of an unloved opponent of the Church. It was with extreme indignation that we learned of the compulsory psychiatric examination which was conducted on your instructions, and to which [J.] has had to submit in the meantime. We shall use every avenue open to us, in particular our international contacts, to bring to public notice this action of yours, which is incompatible with the principles of a democratic State subscribing to the rule of law. We shall follow the further course of the proceedings against [J.] and expect you to abandon the path of terrorisation which you have embarked upon, and to reach the only decision appropriate in this case - an acquittal." 8. The applicant had, as a city councillor, been chairman for some years of the Freiburg Bunte Liste, which is a local political party. He had also played a particularly committed role in, although he had never been a member of, its Anti-clerical Working Group, which sought to curtail the influence of the Church. Until the end of 1985 certain of the mail for the Bunte Liste, which had as its address for correspondence only the post-office box number that had been given in the letter to Judge Miosga, had been delivered to the office ( Bürogemeinschaft ) of the applicant and a colleague of his; the latter had also been active on behalf of the party and had acted for it professionally. 9. On 13 January 1986 the Director of the Munich I Regional Court ( Landgericht ) requested the Munich public prosecutor ’ s office ( Staatsanwaltschaft ) to institute criminal proceedings against Klaus Wegner for the offence of insulting behaviour, contrary to Article 185 of the Criminal Code. Attempts to serve a summons on him were unsuccessful. The applicant ’ s colleague refused to give any information about Klaus Wegner or his whereabouts and other attempts to identify him failed. 10. In the context of the above-mentioned proceedings the Munich District Court issued, on 8 August 1986, a warrant to search the law office of the applicant and his colleague and the homes of Ms D. and Ms G. The warrant read as follows: "Preliminary investigations against Klaus Wegner concerning Article 185 of the Criminal Code Decision The search of the following residential and business premises for documents which reveal the identity of ‘ Klaus Wegener ’ [sic] and the seizure of such documents is ordered. 1. Office premises shared by the lawyers Gottfried Niemietz and ..., 2. Home (including adjoining rooms and cars) of Ms [D.] ..., 3. Home (including adjoining rooms and cars) of Ms [G.] Reasons On 9 December 1985 a letter insulting Judge Miosga of the Freising District Court was sent by telefax from the Freiburg post office. It was sent by the Anti-clerical Working Group of the Freiburg Bunte Liste. The letter was signed by one Klaus Wegener. Until now it has not been possible to identify the signatory. The Freiburg Bunte Liste could not be contacted by mail otherwise than through a box number. Until the end of 1985 such mail was forwarded to the office of Niemietz and ..., and since the start of 1986 to Ms [D.]. It has therefore to be assumed that documents throwing light on the identity of Klaus Wegener can be found at the premises of the above-mentioned persons. Furthermore, it is to be assumed that there are such documents in the home of Ms [G.], the Chairwoman of the Freiburg Bunte Liste. For these reasons, it is to be expected that evidence will be found in the course of a search of the premises indicated in this decision." 11. The search of the law office, the need for which the investigating authorities had first tried to obviate by questioning a witness, was effected by representatives of the Freiburg public prosecutor ’ s office and the police on 13 November 1986. According to a police officer ’ s report drawn up on the following day, the premises were entered at about 9.00 a.m. and inspected in the presence of two office assistants. The actual search began at about 9.15 a.m., when the applicant ’ s colleague arrived, and lasted until about 10.30 a.m. The applicant himself arrived at 9.30 a.m. He declined to give any information as to the identity of Klaus Wegner, on the ground that he might thereby expose himself to the risk of criminal prosecution. Those conducting the search examined four filing cabinets with data concerning clients, three files marked respectively "BL", "C.W. -Freiburg District Court ..." and "G. - Hamburg Regional Court" and three defence files marked respectively "K.W. - Karlsruhe District Court ...", "Niemietz et al. - Freiburg District Court ..." and "D. - Freiburg District Court". According to the applicant, the office ’ s client index was also looked at and one of the files in question was its "Wegner defence file". Those searching neither found the documents they were seeking nor seized any materials. In the proceedings before the Commission, the applicant stated that he had been able to put aside in time documents pointing to the identity of Klaus Wegner and had subsequently destroyed them. 12. The homes of Ms D. and Ms G. were also searched; documents were found that gave rise to a suspicion that the letter to Judge Miosga had been sent by Ms D. under an assumed name. 13. On 10 December 1986 the Chairman of the Freiburg Bar Association, who had been informed about the search by the applicant ’ s colleague, addressed a formal protest to the President of the Munich District Court. The Chairman sent copies to the Bavarian Minister of Justice and the Munich Bar Association and invited the latter to associate itself with the protest. In a reply of 27 January 1987, the President of the Munich District Court stated that the search was proportionate because the letter in question constituted a serious interference with a pending case; hence no legal action on the protest was necessary. 14. The criminal proceedings against "Klaus Wegner" were later discontinued for lack of evidence. 15. On 27 March 1987 the Munich I Regional Court declared an appeal ( Beschwerde ) lodged by the applicant, pursuant to Article 304 of the Code of Criminal Procedure, against the search warrant to be inadmissible, on the ground that it had already been executed (" wegen prozessualer Überholung "). It considered that in the circumstances there was no legal interest in having the warrant declared unlawful. It had not been arbitrary, since there had been concrete indications that specified material would be found. There was no ground for holding that Article 97 of the Code of Criminal Procedure (see paragraph 21 below) had been circumvented: the warrant had been based on the fact that mail for the Freiburg Bunte Liste had for some time been delivered to the applicant ’ s office and it could not be assumed that that mail could concern a lawyer-client relationship. In addition, personal honour was not so minor a legal interest as to render the search disproportionate. There could be no question in the present case of preventing a lawyer from freely exercising his profession. 16. On 28 April 1987 the applicant lodged a constitutional complaint ( Verfassungsbeschwerde ) against the search warrant of 8 August 1986 and the Munich I Regional Court ’ s decision of 27 March 1987. On 18 August a panel of three judges of the Federal Constitutional Court ( Bundesverfassungsgericht ) declined to accept the complaint for adjudication, on the ground that it did not offer sufficient prospects of success. The Federal Constitutional Court also found that the Munich I Regional Court ’ s decision of 27 March 1987 that the applicant ’ s appeal was inadmissible was not objectionable in terms of constitutional law. Furthermore, as regards the actual execution of the warrant, Mr Niemietz had not exhausted the remedy available to him under section 23(1) of the Introductory Act to the Courts Organisation Act ( Einführungsgesetz zum Gerichtsverfassungsgesetz ). III. CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES 22. In its judgment of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechst v. Commission [1989] European Court Reports ("ECR") 2859 at 2924, the Court of Justice of the European Communities stated as follows: "Since the applicant has also relied on the requirements stemming from the fundamental right to the inviolability of the home, it should be observed that, although the existence of such a right must be recognized in the Community legal order as a principle common to the laws of the Member States in regard to the private dwellings of natural persons, the same is not true in regard to undertakings, because there are not inconsiderable divergences between the legal systems of the Member States in regard to the nature and degree of protection afforded to business premises against intervention by the public authorities. No other inference is to be drawn from Article 8(1) (art. 8-1) of the European Convention on Human Rights which provides that: ‘ Everyone has the right to respect for his private and family life, his home and his correspondence ’. The protective scope of that article is concerned with the development of man ’ s personal freedom and may not therefore be extended to business premises. Furthermore, it should be noted that there is no case-law of the European Court of Human Rights on that subject. None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention. The need for such protection must be recognized as a general principle of Community law. In that regard, it should be pointed out that the Court has held that it has the power to determine whether measures of investigation taken by the Commission under the ECSC Treaty are excessive (judgment of 14 December 1962 in Joined Cases 5 to 11 and 13 to 15/62 San Michele and Others v. Commission [1962] ECR 449)." This statement was affirmed in the same court ’ s judgments of 17 October 1989 in Case 85/87 Dow Benelux v. Commission [1989] ECR 3137 at 3157 and Joined Cases 97 to 99/87 Dow Chemical Ibérica and Others v. Commission [1989] ECR 3165 at 3185-6. | This case concerned a search of a lawyer’s office in course of criminal proceedings for insulting behaviour against a third party. The applicant complained in particular that his right to respect for his home and correspondence had been violated. |
822 | Right to education (Article 2 of Protocol No. 1) | 2. The applicant was born in 2004 and lives in Eboli. She was represented before the Court by Mr A. L. (her father) and Ms M.E. D’Amico, a lawyer practising in Milan. 3. The Italian Government (“the Government”) were represented by their former Agent, Mrs Spatafora, and her former coagent Mrs M. E. D’Amico, a lawyer practising in Milan. 4. The applicant was diagnosed with non-verbal autism. 5. On account of her disability, when she started nursery school in 2007 she received learning support for 24 hours a week from a support teacher with specialised assistance, in accordance with section 13 of Law no. 104 of 1992. 6. The specialised assistance service is aimed at helping children with disabilities to develop their autonomy and personal communication skills and to improve their learning processes, their relationships with others and their integration at school, so that they do not become marginalised. Thus the specialist assistant was responsible for improving the applicant’s integration and socialisation at school and in the classroom, as well as her autonomy (see paragraph 18 below). 7. During her first year at primary school (2010-2011) the applicant was no longer in receipt of such specialist assistance. At the end of the school year it was decided that she should repeat the preparatory class (“CP”). 8. On 10 August 2011, in advance of the new school year, the applicant’s parents requested that the Eboli municipality ensure that their daughter received the specialist assistance provided for in section 13 of Law no. 104 of 1992. Having received no reply from the municipal authorities, they reiterated their request on 30 January 2012. 9. On 21 February 2012, in view of the authorities’ silence the applicant’s parents requested access to their daughter’s file. 10. From January 2012 they paid for private specialist assistance so that their daughter could nevertheless receive educational support. 11. On 19 March 2012 the authorities informed them that it would be difficult to organise specialist public assistance for the applicant again since it had only been scheduled up to the end of 2011, but that there was nonetheless a chance that she might shortly be in receipt of such assistance – this never transpired. 12. The Government affirmed that the applicant had received support defrayed by the school. In that regard, they failed to present any document signed by the headmaster stating that since the applicant had not been in receipt of specialist educational facilities in the school years 2010-2011 and 2011-2012, the school had provided her with basic assistance and physical aid and had tasked employees to provide material back-up to teaching staff. In support of those assertions the Government enclosed an invoice for 476.56 euros (EUR). 13. The applicant observed that that the documents submitted by the Government failed to establish the veracity of its submissions. She pointed out, first of all, that the documents did not explain the type of assistance provided or the activities conducted, or whether the persons concerned had been competent and qualified to take care of an autistic child. She further submitted that the amount of the expenditure certified (EUR 476.56 for six employees, coming to an average outlay of EUR 80 per employee per year) showed that the support in question could certainly not have been considered as permanent. 14. On 15 May 2012 the applicant’s parents, acting in her name and on her behalf, applied to the Administrative Court (the “TAR”) of the Region of Campania. Complaining of the fact that their daughter had been unable to receive the specialist assistance to which she had been entitled under section 13 of Law no. 104 of 1992, they sought a finding of failure to respect that right and asked the court to order the authorities to pay compensation to their daughter. 15. By judgment of 27 November 2012 the TAR dismissed that application. It held that the municipality taken all the necessary action in time, and pointed out that the region had had to cope with a cut in resources allocated by the State. 16. The applicant’s parents appealed to the State Council against that judgment. By judgment deposited with the registry on 26 May 2015, the latter dismissed their appeal. It held that the claim for damages had been vague and had failed to demonstrate a causal link between the lack of specialist assistance and the alleged damage. It also ruled that the region’s liability could not be incurred because it had had to cope with a cut in resources allocated by the State. It considered that there had been no reason to reimburse the applicant’s parents for the costs incurred in paying for private specialist assistance, since no negligence had been attributable to the authorities. Finally, as regards the request that the Eboli municipality be ordered to provide the assistance provided for by law, the State Council pointed out that the judge could only have issued an order to the authorities if the case had fallen under the exclusive jurisdiction of the administrative court, which had not been the situation in the present case. | This case concerned the inability for the applicant, a young girl suffering from nonverbal autism, to receive specialised learning support during her first two years of primary education (between 2010 and 2012) even though the support was provided for by law. The Italian Government relied, in particular, on a lack of financial resources. |
709 | Right to collective bargaining | I. THE CIRCUMSTANCES OF THE CASE A. The first and second applicants 9. The first applicant, Mr Wilson, was employed as a journalist at the Daily Mail by Associated Newspapers Limited. The local branch, or “Chapel” of the second applicant, the NUJ, had been recognised since at least 1912 for the purpose of collective bargaining as regards all aspects of the terms and conditions of employment of its members. 10. On 10 November 1989 the first applicant, in common with other journalists, received the following letter from the editor of the Daily Mail : “Dear Dave, You probably know that the collective bargaining agreement between the Chapel and the Management is due to end on 1 April 1990. The Company has given notice that it does not intend to negotiate a new agreement with the Chapel and that, from that date, the NUJ will not be recognised as a negotiating body. Instead, salaries will be reviewed annually each 1 October as they are already for the senior editors. Departmental heads will make recommendations to me for each individual member of their staff. I will, of course, discuss these with my editors in detail and add my own assessment, as I do now, for merit rises. I shall then implement salary increases. A handbook has been drawn up which contains the benefits and conditions which exist under the current agreement. Each member of staff will be given a new contract which embodies these conditions together with the Handbook. I think it is worth pointing out that the Handbook includes a grievance procedure. All journalists who sign their new contracts before 1 January 1990 will be awarded a 4.5% wage increase backdated to 1 October 1989. As I have said, the next review of salaries will be on 1 October 1990. I would like to point out that, contrary to what is happening on other national newspapers, our new arrangement does not involve any redundancies. Nor any radical changes in the way we produce our papers. I think you should know that the initiative to end collective bargaining has come from the editors, not the management. It is the skill of journalists as individuals that makes our papers. We appoint journalists as individuals and we want to continue to treat them as individuals throughout their whole career here, in order that they and our papers shall prosper. The success of the Daily Mail is based on its team of highly qualified and highly paid journalists. We intend to develop that success and, with it, the careers of our journalists. Yours sincerely, ...” 11. The first applicant refused to sign a new contract, because he objected to its provisions prohibiting trade union activity during working hours and removing his right to be represented by the union and the rights of the union to negotiate with management and be consulted on and agree changes to terms and conditions of employment. In subsequent years Mr Wilson's salary increased, but was never raised to the same level as that of employees who had accepted personal contracts. 12. After 1 April 1990 the employer continued to deal with the NUJ on health and safety issues, but did not recognise the union for any other purpose. B. The other applicants 13. The third and fourth applicants, Mr Palmer and Mr Wyeth, were employed by Associated British Ports (“the ABP”) at the Port of Southampton as manual grade employees. They were members of the NURMTW (the fifth applicant). The trade union was recognised by the employer for the purposes of collective bargaining under the terms of a collective agreement. 14. On 8 February 1991 the third and fourth applicants, in common with other manual grade employees, were sent letters in the following terms: “I am writing to advise you that Associated British Ports has decided to offer you a personal contract of employment to take effect on 1 March 1991. You are probably aware that offers of personal contract terms have already been made to Management, Supervisory, Clerical, Technical staff and some Manual Grade Staff at Southampton. In offering personal contracts, the Company is seeking to introduce a system whereby the individual merit and contribution of an employee may be recognised and rewarded. Under the proposed new contract of employment, the level of future pay increases including that due on 1 March 1991, together with other improvements in conditions of service, will be determined by the Company. Wages will relate to the individual's responsibilities and performance together with conditions in the employment market, and the Company's financial position. If you choose to accept a new individual contract then the Agreement with the Trade Unions, which currently forms part of your contract of employment, will no longer apply to you. Your conditions of employment will, however, differ only in limited respects from those which you have at present. The most significant alterations are that you will no longer have the right to be represented by a Trade Union and, in future, your pay will not be determined by the present negotiated wage ranges, i.e., Groups 1 to 4 and Chargehands will no longer apply. Membership of your current pension scheme is entirely unaffected by whether or not you elect for a personal contract; similarly, voluntary severance and redundancy payments are unchanged but your overtime calculator will rise to 100%. As part of your personal contract the Company will pay you an increased wage from 1 March 1991, as advised to you in the attached personal letter, this new wage is inclusive of your pending March pay review. This new wage has been determined by enhancing your present wage after first consolidating the following items of pay which will be discontinued under the personal contract terms:– Allowances, e.g. Height, tool, allowances, etc., Holiday bonus and higher grade duty payments. These items are being consolidated into the personal wage you are being offered and therefore become part of your pensionable pay. Overtime will be offered as and when necessary. There will be no contractual overtime. Under the new terms there will be a single annual review on 1 April, the first review being on 1 April 1992. Staff on personal contracts will be paid monthly by Bank Credit Transfer (BACS). If you accept a personal contract, the Company will, if you so wish, provide private medical insurance by paying for membership of a Corporate Health Plan with Private Patients Plan (PPP) for yourself. Your spouse and children may be included in this cover if you choose to pay the appropriate additional subscription. Full details are enclosed with this letter. ... The Company believes that the offer you are being made represents a significant improvement in your terms and conditions of employment. I hope therefore that you will decide to accept this offer. You should, however, clearly understand that you are free to reject it. ...” The average pay increase offered to manual grade employees who accepted personal contracts was 10%. 15. The third and fourth applicants refused to sign personal contracts. Their pay and conditions of employment for 1991/92 were decided on a collective basis following negotiations between the union and the employer. They received an increase of pay and allowances of 8.9% and were not offered private medical insurance. 16. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes. 17. The remaining applicants, Mr Doolan and the others, were all employed by the ABP at the Bute Docks in Cardiff and were members of the fifth applicant trade union, which was recognised by the employer for the purposes of collective bargaining. On 19 April and 19 July 1991 employees were sent letters offering them personal contracts with pay increases. In return, the employee had to relinquish all rights to trade union recognition and representation, and to agree that annual increases and other terms and conditions would no longer be negotiated by the union on his behalf. 18. The applicants refused to sign personal contracts and, as a result, received only a 4% annual pay increase on their basic rate of pay. Those employees holding the same positions as the applicants who accepted personal contracts received a pay increase which was approximately 8% to 9% greater than that awarded to the applicants. 19. In 1992 the employer gave notice that it was terminating the collective agreement and de-recognising the union for all purposes. C. Proceedings before the domestic courts and tribunals 20. The individual applicants all separately applied to the Industrial Tribunal complaining that the requirement to sign the personal contract and lose union rights, or accept a lower pay rise, was contrary to section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 (“the 1978 Act” – see paragraph 27 below). 21. In the proceedings brought by Mr Wilson, Mr Palmer and Mr Wyeth, the Industrial Tribunal found in favour of the applicants. The employers successfully appealed to the Employment Appeal Tribunal, and the applicants appealed to the Court of Appeal. 22. The Court of Appeal found for the applicants on 30 April 1993 (judgment reported as Associated British Ports v. Palmer and Others; Associated Newspapers v. Wilson [1994] Industrial Cases Reports 97). In Palmer and Others it was accepted in the Court of Appeal that, in discriminating against the employees who refused to sign personal contracts, the employer had taken “action (short of dismissal)” against them, within the meaning of section 23 of the 1978 Act. The court held that the concept “being ... a member of an independent trade union” in section 23 involved more than simply holding a union membership card, and included making use of the essential services provided by the union, such as collective representation. In offering pay increases to those who revoked their right to be represented by the union, the employer had intended to induce employees to abandon collective bargaining and thus to achieve greater flexibility and bring an end to the need to consult the union. In denying the pay rise to those who would not forgo collective representation, the employer had acted with the purpose of penalising union membership, contrary to section 23(1)(a) of the 1978 Act. In Wilson it was accepted that the employer's decision to de-recognise the union from 1 April 1990 was not contrary to section 23, since the de-recognition was aimed at the union as a whole and was not action against any individual employee. The union had no legal sanction against de-recognition or the termination of the agreement on conditions of employment it had negotiated; the only sanction available to it was the threat of industrial action. The employer's purpose in offering a pay rise to those employees who accepted the new terms of employment was to negate the power of the union with a view to bringing an end to collective bargaining. Its purpose in denying the pay rise to the applicant because he refused to abandon collective bargaining was to deter him from being a member of the union. 23. The employers appealed to the House of Lords, which, on 16 March 1995, decided unanimously against the applicants ([1995] 2 Law Reports: Appeal Cases 454). Three of the five Law Lords held that the word “action” in section 23(1) could not be construed as including an omission, so that the withholding of benefits by the employers from the applicants did not amount to “action (short of dismissal)”. In addition, four of the five Law Lords found that the employers' conduct had not been motivated by “the purpose of preventing, ... deterring ... or penalising” union membership, although in Palmer and Others (in the words of Lord Bridge) “it was plain that the employers were seeking by means of an attractive offer to induce their employees voluntarily to quit the union's collective-bargaining umbrella and to deal in future directly with the employers over their terms and conditions of employment”. However, trade unions could offer their members services other than the negotiation of terms and conditions of employment, and membership of a trade union could not therefore be equated with the use of the union's services for collective bargaining. 24. Following the House of Lords' judgment, the applicants withdrew their applications from the Industrial Tribunal, having been advised that they could not succeed. | The applicants submitted that the law applicable in the United Kingdom at the relevant time failed to secure their rights under Article 11 of the Convention. They complained in particular that the requirement to sign a personal contract and lose union rights, or accept a lower pay rise, was contrary to the Employment Protection Act. |
379 | Ill-treatment by prison officers | I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant was born in 1978 and lives in Turin. The second applicant was born in 1975 and was detained in Turin up to the time of his death on 10 January 2017. A. The events of December 2004 7. In 2004 the applicants were detained in the Asti Correctional Facility. 8. On 10 December 2004 the second applicant intervened in a fight that had broken out between the first applicant and a prison officer. 9. The manner in which the impugned events occurred, as submitted by the applicants and as it emerges from their witness statements during the domestic proceedings, may be summarised as follows. 1. The first applicant ’ s account 10. On 10 December 2004, following an altercation with the prison officer, the first applicant was summoned to a meeting with the correctional unit commander ( comandante di reparto della polizia penitenziaria ). Before he reached the commander ’ s office, he was stopped by a group of prison officers, who took turns beating him. Following the meeting, he was stripped of his clothes and led to a cell in the solitary confinement wing. 11. The only item of furniture in the cell was a bed with no mattress, bed linen or covers. As to sanitary facilities, the cell had a squat toilet without running water and was not equipped with a sink. The cell window had no window panes and the only source of heating was a small, malfunctioning radiator, which provided little protection against the December weather. For a number of days, although it is unclear for how many exactly, he was left naked. 12. During the first week of his detention in solitary confinement no food was provided and he was given only scant amounts of water. He was subsequently given rationed quantities of food. 13. He was beaten on a daily basis, several times per day. He was repeatedly punched, kicked and hit in the head by prison officers, who assaulted him in groups of varying sizes. 14. He was also subjected to sleep deprivation, as the beatings often took place at night and the prison officers verbally abused him in order to keep him awake. 15. During the detention in solitary confinement the applicant did not receive visits from his lawyer or his family. 2. The second applicant ’ s account 16. On 10 December 2004, following the same altercation with the prison officer, the second applicant was stripped of his clothes and led to a cell in the solitary confinement wing of the correctional facility. The bed in the cell had no mattress, sheets or covers, and the cell had no sink. Initially there were no panes in the windows, which were covered with some plastic sheeting after an unspecified number of days. For a number of days, although it is unclear for how many exactly, he was left naked. He was subsequently given some light clothing. 17. The applicant ’ s food was rationed, and at certain times he was given only bread and water. On some days he received no food at all. 18. The applicant was beaten by prison officers, often more than once per day. He was subjected to various forms of physical violence, including being repeatedly punched, kicked and slapped, at one point with his head being pinned to the ground by one of the prison officers ’ boots. The beatings occurred both during the day and at night. The applicant was beaten by four or five officers at a time. One prison officer ripped out a chunk of his hair. 19. On 16 December 2004 he was admitted to the hospital. 20. During the period he spent in solitary confinement he was only allowed outside the cell twice, once to shower and once for some outdoor time. B. Criminal proceedings against the prison officers 21. A criminal investigation into the impugned treatment was launched in 2005. It was initiated when it emerged, in the context of covert surveillance in an operation to investigate drug smuggling in the Asti correctional facility, that a number of the prison officers had discussed the ill-treatment inflicted on the applicants. 22. On 7 July 2011 five prison officers, C.B., D.B., M.S., A.D., and G.S., were committed for trial. They were charged with ill-treatment of the applicants under Article 572 of the Italian Criminal Code (“the Criminal Code”), in conjunction with Article 61 § 9 of the Criminal Code, a provision which considers the commission of an offence by a civil servant abusing his or her position to be an aggravating circumstance. 23. On the same date the applicants joined the proceedings as civil parties. 1. Proceedings before the Asti District Court 24. The Asti District Court ’ s judgment was delivered on 30 January 2012. Its findings may be summarised as follows. 25. As to the establishment of the facts concerning the ill-treatment, the court found that the evidence gathered during the investigation and produced at the trial showed that the events had occurred in the manner described by the victims in their submissions during the trial. The Court relied on statements to the effect that the applicants had been subjected to physical and verbal abuse, coupled with the deprivation of food, water, sleep, and clothing, and had been detained in cells without adequate access to sanitation, heating, and bedding. 26. The court further found it to be established beyond reasonable doubt that the applicants had been subjected not merely to isolated acts of harassment and abuse, but to repeated ill- treatment which had been put into practice in a systematic manner. 27. More specifically, the court found it established beyond reasonable doubt that the first and second applicants had been subjected to repeated physical violence from 10 to 29 December 2004 and from 10 to 16 December 2004 respectively. The court found that the beatings occurred regularly at all times of the day, and particularly at night. 28. The court noted that the second applicant had been admitted to the emergency room of the Asti Civil Hospital on 16 December 2004 with traumatic injuries. With regard to the first applicant, the court acknowledged his hospitalisation following the events without citing a date or specific medical documentation to this effect. 29. Moreover, the court found it to be established beyond reasonable doubt that in 2004 and 2005 in the Asti Correctional Facility there had existed what it defined as a “generalised practice of ill-treatment” that had been systematically inflicted on prisoners considered to be problematic. Measures which the court defines as exceeding the bounds of permitted disciplinary or security measures were routinely taken to punish and intimidate problematic detainees and to deter other disorderly behaviour. As part of this practice, a detainee would generally be taken to a cell in the solitary confinement unit where he would be subjected to repeated harassment and abuse by prison officers. The abuse would primarily take the form of physical violence, as detainees would be beaten by groups of prison officers, often during the night. In addition, detainees would be routinely subjected to sleep, food and water deprivation, and would also be denied access to sanitary facilities. 30. The court further found ample evidence that the prison officers operated in a climate of impunity. This was due, in the court ’ s view, to the acquiescence of high-level prison administrators and the complicity that existed among prison officers. 31. It emerges that the court ordered an inspection of the correctional facility, including the solitary confinement wing, during the course of the trial. The court found that several cells in the solitary confinement wing of the Asti Correctional Facility were unfit for holding detainees. Some did not have bed linen, mattresses, sanitary facilities or heating. Although the windows in some cells had no panes and others had windows covered by metal plates with small perforations, the cells were nonetheless used during the winter months. Some cells were equipped with a bed and a squat toilet but no other furniture or sanitary facilities. 32. Following the establishment of the facts, the court went on to assess responsibility for the established conduct. In this regard, G.S. was acquitted as to his involvement in the ill-treatment, and A.D. and D.B. were acquitted of the charge of ill-treatment under Article 572 of the Criminal Code. The court nonetheless held that the conduct of A.D. and D.B. amounted to infliction of bodily harm contrary to Article 582 of the Criminal Code. However, it ordered that the proceedings against them be discontinued due to the expiry of the applicable time-limit as laid down in the statute of limitations. 33. With respect to C.B. and M.S., the court held that there existed sufficient evidence to conclude that they had been responsible for most, if not all, of the acts of physical, psychological, and “ material ” abuse at issue. The court then considered that the acts at issue could be classified as torture pursuant to the definition provided by the United Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It went on to observe that Italy had failed to incorporate the offence of torture into national legislation, in breach of its international obligations. It was therefore obliged to conclude that, under Italian law, there existed no legal provision that would allow it to classify the impugned conduct as acts of torture. 34. Having taken note of the above-mentioned considerations, the court proceeded to assess which existing offence was more suitable in respect of the legal classification of C.B. and M.S. ’ s conduct. When conducting its assessment, the court relied on the conclusion that the primary purpose of the impugned treatment was to punish the applicants, to “maintain order” in the correctional facility, and to convey a clear message to the other detainees. 35. The court considered that the conduct of the two prison officers thus fell most appropriately within the scope of Article 608 of the Criminal Code, which deals with abuse of authority against arrested or detained persons. However, the statutory limitation period for the offence in question had elapsed, as the court had found no procedural action which would have the effect of interrupting it. The court stated that C.B. and M.S. were also responsible for the infliction of bodily harm, but that, as the statute of limitations was applicable to that offence as well, such a finding did not alter the substance of the decision. The court therefore ordered that the proceedings against C.B. and M.S be discontinued because the applicable time-limit as laid down in the statute of limitations had expired. 2. Proceedings before the Court of Cassation 36. On 22 February 2012 the public prosecutor lodged an appeal with the Court of Cassation, arguing that the Asti District Court had erred in the legal classification of the offence with respect to C.B. and M.S. The prosecutor contended that the most appropriate offence for the purposes of classification of the conduct in question would have been aggravated ill ‑ treatment under Article 572 of the Italian Criminal Code ‒ as initially identified in the bill of indictment ‒ in conjunction with Article 608 of the Criminal Code. 37. By a judgment issued on 21 May 2012, and filed with the court Registry on 27 July 2012, the Court of Cassation declared the public prosecutor ’ s application inadmissible. The court expressed its agreement with the prosecutor ’ s contention as a matter of principle but, as the statute of limitations had been likewise applicable to the offence of aggravated ill ‑ treatment, a decision in favour of the prosecution would have been devoid of any practical effect. 3. Subsequent proceedings 38. On 26 July 2012 C.B. lodged an objection to execution ( incidente d ’ esecuzione ) with the Asti District Court, arguing that its decision of 30 January 2012 (see paragraph 24 above) could not be considered as final and binding insofar as he was concerned, as the decision had not been properly served on him. 39. In a decision issued on 31 October the Asti District Court dismissed C.B. ’ s objection on the grounds that C.B. must have had cognisance of the decision at the moment the public prosecutor lodged an appeal with the Court of Cassation (see paragraph 36 above) or, at the latest, when his representative filed a defence brief at a hearing before the Court of Cassation in May 2012. 40. On 26 July 2012 C.B. appealed against the decision before the Court of Cassation. 41. In a judgment delivered on 11 July 2013, and filed with the Registry on 1 August 2013, the Court of Cassation granted the appeal. It found that the failure to serve the decision on C.B. could not be remedied by C.B. ’ s potential knowledge of the decision at a later stage, as argued by the District Court. The Asti District Court judgment of 30 January 2012 could not, accordingly, be considered final and binding insofar as C.B. was concerned. 42. Based on the latter decision, on 10 October 2013 C.B. lodged an appeal against the Asti District Court judgment of 30 January 2012 with the Turin Court of Appeal, seeking an acquittal. 43. No further information has been provided by the parties as to the outcome of the proceedings. C. Disciplinary proceedings against the prison officers 44. In their observations of 31 March 2016, the Government indicated that four prison officers had undergone disciplinary proceedings in connection with the impugned events and by different decisions issued on 29 January 2013 the following disciplinary sanctions had been imposed: – C.B. was dismissed from his functions ( destituito dal servizio ). He was, however, reinstated on 26 November 2013, following the Court of Cassation judgment of 11 July 2013 which suspended the binding nature of the Asti District Court ’ s judgment (see paragraph 41 above); – M.S. was dismissed from his functions; – A.D. was suspended from duty for a period of 4 months; – D.B. was suspended from duty for a period of 6 months. 45. According to a document issued by the Staff Director of the Prison Administration Department of the Ministry of Justice on 12 October 2015, and furnished by the Government, the four prison officers were not suspended from duty ( sospensione precauzionale dal servizio ) during the course of the investigation or the trial. D. Medical documentation 46. At the Court ’ s request, the Government submitted extracts from the prison medical record of the second applicant between 26 November 2004 and 5 March 2005 and typed copies of his hospitalisation record of 16 December 2004. 47. The prison medical record indicates that on 13 December 2004 the second applicant was examined visually ( whilst still “behind bars” ). He complained of pain in the thoracic area and right ear. The reporting physician noted the presence of ecchymoses and haematomas around the patient ’ s ribcage. He recommended a more thorough medical examination and/or transfer to the infirmary. 48. The record further indicates that another visual examination ( also “behind bars” ) took place on 15 December 2004. The information in this entry is the same as in the previous entry. Transfer to the infirmary for a medical examination was recommended. 49. On 15 December 2004 the record shows that the applicant underwent a medical examination in the afternoon. The physician reported ecchymoses on the patient ’ s ribcage and in the retroauricular region. Palpation of the patient revealed diffuse pain. The reporting physician recommended that X ‑ rays be performed for a suspected fracture. Painkillers were administered. 50. The entry of 16 December 2004 reports the applicant ’ s transfer to the emergency room of the Asti Civil Hospital as a consequence of traumatic injury. 51. According to the medical record of the Asti Civil Hospital, an X-ray revealed a fractured rib and the medical examination disclosed diffuse bruising in the thoracic and abdominal area and pain on palpation. The record states that the applicant told the doctor his injuries occurred as a consequence of an accidental fall. 52. The prison medical record entry on the applicant ’ s discharge from the hospital on 16 December 2004 shows that he was prescribed painkillers. 53. As to the first applicant, no copy of the prison medical register had been submitted by the Government, notwithstanding the Court ’ s request for such information. | This case concerned the complaint by two detainees that in December 2004 they were ill-treated by prison officers of the Asti Correctional Facility. The applicants maintained in particular that the acts of violence and ill-treatment which they had suffered in the correctional facility amounted to torture and that the penalty for those responsible for the acts of ill-treatment had been inadequate. They emphasised that by failing to incorporate the offence of torture into national law, the State had failed to take the necessary steps to prevent the ill-treatment which they had suffered. |
635 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, a limited liability company with its seat in Vienna, is the owner of the daily newspaper Der Standard. 6. In its issue of 14 May 2004 Der Standard published an article in the domestic politics section under the heading “ Gossip mongering ” ( “ Kolportiert ” ). The article, which was entitled “ A society rumour ” ( “ Ein bürgerliches Gerücht ” ) commented on certain rumours relating to the marriage of Mr Klestil, the then Federal President. The article also appeared on the website of Der Standard. It read as follows: “ If the stories circulating between the outlying district of Döbling and the city centre are to be believed, there is only one topic of conversation at the moment among the so ‑ called upper crust of Viennese society: the marriage of the departing presidential couple Thomas Klestil and Margot Klestil-Löffler [bold print in the original]. Rumour has it that not only is he about to leave office, but she is about to leave him. The latter claim has of course set tongues wagging furiously in bourgeois – and not-so-bourgeois – circles. People here like nothing better than to be able to express outrage about one of their own. In addition to the allegedly less-than-blissful domestic situation on the Hohe Warte [the Federal President ’ s residence], there has been persistent gossip recently about the supposedly close ties between the First Lady, who is her husband ’ s junior by 22 years, and other political figures. Head of the FPÖ parliamentary group Herbert Scheibner [bold print in the original], for instance, is reported to be close to her (Scheibner has accompanied the presidential couple on a number of foreign trips). Ms Löffler is also said to be well acquainted with the husband of the Canadian ambassador (unsurprisingly, given her post as head of the American department of the Foreign Affairs Ministry). The fact that the President ’ s wife took a few days off recently to organise the move from the official residence to the couple ’ s newly renovated home in Hietzing fuelled further speculation. So much so, in fact, that Klestil – never squeamish about putting his emotions on display – had the following pre-emptive statement published in his information bulletin, News [an Austrian weekly] : ‘ Rumours of a separation are nothing but idle gossip ’ he said. He added: As of 8 July we will be embarking on a new phase of our life together. Any assertions to the contrary are untrue. Be that as it may, the people are concerned for the well-being of their President. Apparently, the public information desk of the President ’ s Office has recently had more callers than ever before enquiring about the state of the President ’ s marriage. And more than a few of the callers made their enquiries in the ultra- refined tones of Schönbrunn. ” 7. The article was accompanied by a picture of Mr Klestil and Mrs Klestil-Löffler, looking in different directions. A. The proceedings brought by Mr Klestil and Mrs Klestil-Löffler 8. On 18 May 2004 Mr Klestil and Mrs Klestil-Löffler brought proceedings under sections 6 and 7 of the Media Act ( Mediengesetz ) against the applicant company, claiming that the article published in Der Standard of 14 May 2004 reported on their marriage and family life and thus interfered with the strictly personal sphere of their lives. 9. By judgment of 15 June 2004 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) ordered the applicant company to pay compensation of 5,000 euros (EUR) to the first claimant, Mr Klestil, and EUR 7,000 to the second claimant, Mrs Klestil-Löffler. Furthermore, the court ordered the applicant company to publish its judgment and to reimburse the claimants ’ costs. 10. The Regional Court, referring to section 7 of the Media Act, held that the applicant company had reported on the strictly personal sphere of the claimants ’ lives in a manner that was likely to undermine them in public. It analysed the contents of the impugned article as alleging, on the one hand, that Mrs Klestil-Löffler intended to divorce and, on the other hand, that she had close contacts with two men, thus describing her as a double adulteress and Mr Klestil as a deceived husband. In reply to the applicant company ’ s defence that the article merely reported on a rumour, the Regional Court noted that even the dissemination of a rumour could breach section 7 of the Media Act, if it conveyed the impression that there was some truth in it. 11. As to the applicant company ’ s request to take evidence in order to show that the rumour had actually been spread at the time, the court noted that in cases concerning an infringement of the strictly personal sphere of a person ’ s life, section 7 § 2 of the Media Act excluded the proof of truth ( Wahrheitsbeweis ), unless the statement at issue was directly related to public life. Such a direct link would exist, for instance, where a publication reported on the state of health of the Federal President which might prevent him from exercising his functions. However, the state of his marriage did not have any bearing on his capacity to exercise his functions nor did it have any other link with public life. 12. In assessing the amount of compensation, the Regional Court had regard to the fact that Der Standard was a widely read newspaper and to the considerable degree of insult suffered by the claimants. In addition it noted that it was highly uncommon in Austria to report on (true or untrue) details of the private lives of politicians. Having regard to the above considerations and the need to deter other media from making similar publications, a relatively large amount of compensation appeared justified. The difference in the sums awarded was to the fact that the second claimant was described as a double adulteress, while the first claimant was “merely” depicted as a deceived husband. 13. The applicant company appealed. As a point of law it submitted that the Regional Court had wrongly refused its request for the taking of evidence. In its view the publication was directly related to public life within the meaning of section 7 § 2 of the Media Act. The claimants, being public figures, had made their private life part of their “ marketing strategy ”. Like no other presidential couple before, they had kept the public informed about their marriage, starting with the first claimant ’ s divorce from his former wife and his remarriage, to the second claimant. Moreover, the first claimant had relied heavily on family values during his first electoral campaign. He therefore had to accept that the public had an interest in being informed about his private life. 14. As regards points of fact, the applicant company argued that the Regional Court had wrongly assessed the contents of the article at issue. Read in its proper context, the article did not state that Mrs Klestil-Löffler actually intended to divorce and even less that she was an adulteress. On the contrary the article rather aimed at exposing the idle gossip propagated in certain upper-class circles. It clearly pointed to the absurdity of the rumour by explaining that the allegedly close ties of the second claimant with Mr Scheibner and with the husband of the Canadian ambassador had perfectly unsuspicious reasons. Seen in that light, the article did not even relate to the strictly personal sphere of the presidential couple but made fun of the gossip in bourgeois society. 15. As regards the sentence the applicant company claimed that the compensation awards were excessive. 16. While the appeal proceedings were pending, Mr Klestil died. By decision of 2 September 2004 the Vienna Regional Criminal Court discontinued the proceedings as regards Mr Klestil. On 9 December 2004 the Vienna Court of Appeal ( Oberlandesgericht ), on an appeal brought by Mr Klestil ’ s estate, quashed the Regional Court ’ s decision. 17. By a judgment of 20 January 2005 the Vienna Court of Appeal upheld the Regional Court ’ s judgment of 15 June 2004. 18. It confirmed that in the present case, the proof of truth was excluded by section 7 § 2 of the Media Act. The applicant company ’ s argument that the claimants were public figures and had exposed their private and marital life to the public eye like no other presidential couple before was not convincing. While the first claimant had relied on his family life and on his then marriage in his first campaign some twelve years ago, his marriage with Mrs Klestil-Löffler had not played a role in his second campaign nor otherwise during his second period in office. Moreover, his second and last period in office had been drawing to a close at the time of the publication. In sum, the Regional Court had rightly found that the publication at issue was not directly related to public life. Consequently, it had rightly refused to take the evidence proposed by the applicant company. 19. There was no basis for the applicant company ’ s assertion that the article was aimed at unveiling the hypocrisy of the so called upper crust of Viennese society or that it described the rumours about the claimants ’ marriage as absurd. The Regional Court had rightly understood the article ’ s contents as conveying rumours about the Federal President ’ s marriage as if there was some truth in them. 20. Finally, as regards the amounts granted in compensation, the Court of Appeal found that deterring other media from similar publications was not a relevant criterion. Nevertheless the other considerations relied on by the Regional Court justified the compensation awards. B. The proceedings brought by Mr Scheibner 1. Proceedings under the Media Act 21. On 11 June 2004 Mr Scheibner brought proceedings under sections 6 and 7 of the Media Act against the applicant company in respect of the electronic version of the article, which had been published on the website of Der Standard and in respect of the print version. He alleged that the passage referring to him contained an untrue statement amounting to defamation. 22. By judgment of 20 July 2004 the Vienna Regional Criminal Court ordered the applicant company to pay EUR 4,000 to Mr Scheibner as compensation for the publication in the printed version of Der Standard and EUR 2,000 as compensation for the publication on the website. Furthermore, the court ordered the applicant company to publish its judgment and to reimburse the claimant ’ s costs. 23. The court, arguing along the same lines as in its judgment of 15 June 2004 (see paragraphs 10-11 above ), held that the applicant company had reported on the strictly personal sphere of the claimant ’ s life in a manner that was likely to undermine him in public. It analysed the contents of the impugned article as alleging that the claimant, Mr Scheibner, who was a married man, had a close relationship with Mrs Klestil-Löffler and therefore described him as an adulterer. Thus, his strictly personal sphere was affected. However, it found that the publication did not amount to defamation within the meaning of Article 111 of the Criminal Code ( Strafgesetzbuch ). 24. As to the amount of compensation it considered that the insult as regards Mr Scheibner weighed less heavily than as regards the claimants in the first set of proceedings. In sum, compensation awards of EUR 4,000 as regards the publication in the paper version of Der Standard and EUR 2,000 for the publication on the website, which was less widely read, appeared appropriate. 25. The applicant company and Mr Scheibner appealed, whereby the applicant company relied on the same grounds as in its appeal in the previous set of proceedings. 26. On 22 December 2004 the Vienna Court of Appeal dismissed the applicant company ’ s appeal but partly granted Mr Scheibner ’ s appeal. It held that the impugned statement also breached Article 6 of the Media Act, since it fulfilled the objective elements of defamation as defined in Article 111 of the Criminal Code. The claimant was accused of adultery, which even in a liberal society was still considered an unlawful and dishonourable act. It considered however, that this had no influence on the amount of compensation to be paid, which was therefore upheld. 27. As to the applicant company ’ s appeal, the Court of Appeal again confirmed the Regional Court ’ s reading of the contents of the article. It added that the placement of the article in the domestic politics section and its presentation including the picture of the presidential couple supported this assessment. Furthermore, the appellate court noted that the applicant company had not argued before the Regional Court that the publication was directly related to public life within the meaning of Article 7 § 2 of the Media Act. 28. In any case, Mr Scheibner, though a public figure, had a right to respect for the strictly personal sphere of his life. Rumours about an alleged relationship between him and the wife of the Federal President had no link with his public functions and responsibilities and did therefore not justify the reporting at issue. 2. Proceedings under the Civil Code 29. Once the judgment of the Court of Appeal had become final, Mr Scheibner brought proceedings under the Civil Code ( Allgemeines Bürgerliches Gesetzbuch ) requesting an injunction ordering the applicant company to refrain from publishing any statement alleging that he had a relationship with Mrs Klestil-Löffler. 30. At the hearing of 22 April 2005 before the Vienna Commercial Court ( Handelsgericht ), the applicant company entered into a settlement with Mr Scheibner undertaking to refrain from publishing any such statement. The Commercial Court noted that according to constant case-law, a judgment under section 6 of the Media Act had binding effect in subsequent civil proceedings relating to the same facts. It ordered the applicant company to pay Mr Scheibner ’ s procedural costs. 31. The Commercial Court ’ s judgment was served on the applicant company ’ s counsel on 25 May 2005. The applicant company did not appeal. | This case concerned the conviction for defamation of the applicant publishing company arising out of the publication of an article in a daily newspaper owned by the applicant commenting on rumours that the wife of the then Austrian President intended to divorce and had close contacts with two men, an Austrian politician and a foreign ambassador. |
141 | Sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1997. 5. Following the death of her grandmother in 2010 the applicant, who was a minor at the time, began to show signs of distress. Her parents sought the opinion of a psychiatrist, who emphasised that their daughter was suffering from emotional instability, alternating between periods of anger and periods of agitation. 6. On 19 April 2013 the applicant went to a party where there were drugs and alcohol. The police arrived, seized the drugs and alcohol and checked the identity of the minors who were present. A. The proceedings before the Youth Court and the minor ’ s placement 7. On 23 April 2013 the prefect of Rome informed the public prosecutor at the Rome Youth Court (“the Youth Court”) of the police operation carried out on 19 April 2013 and of the presence of V.C., a minor, at the scene. A criminal investigation was opened and the public prosecutor at the Youth Court was informed. 8. On 31 May 2013 the public prosecutor heard evidence from V.C. ’ s parents. They stated that their daughter had been having difficulties and that they were worried about her, saying that she was taking drugs and stealing money at home. They also told the prosecutor that, according to the psychiatrist who was treating the applicant, she suffered from a bipolar disorder and an attention deficit disorder caused by drug use and also showed signs of a borderline and anti-social personality. 9. Subsequently, in June 2013, V. C. ’ s parents informed the prosecutor that they had discovered through their daughter ’ s Facebook page that she had been approached by a photographer to pose for pornographic photographs. The Government maintained that the parents had told the prosecutor on that occasion that their daughter did not want to be placed in a specialist institution. 10. On 5 June 2013 the public prosecutor heard evidence from the applicant, who stated that she had started to take drugs when she was twelve but had since stopped. The applicant stated that she did not wish to be placed in a specialist institution or in a foster family. 11. On 25 June 2013 the applicant ’ s mother informed the public prosecutor by telephone that the situation had not improved and that the applicant had been approached to pose for pornographic photographs. 12. On 2 July 2013 the public prosecutor informed the Youth Court that it was clear from the statements made by the parents and the applicant, who had admitted stopping school and using drugs, and from the psychiatrist ’ s diagnosis, that V. C. was in danger as she was no longer attending school and there was a risk that she might be caught up in a child prostitution ring, given that she had been approached to pose for photographs. The public prosecutor therefore requested the Youth Court to institute urgent proceedings under Article 25 of Royal Decree no. 1404 of 1934 and to have the minor placed in a specialist institution and in the care of the social services. 13. On 24 July 2013 the Youth Court appointed a judge ( giudice onorario ) to hear evidence from the applicant, her parents and the social services, in order to learn more about her environment and take the appropriate measures to protect her. 14. On 14 October 2013, that is, almost three months later, the Youth Court gave the social services notice to appear before it. However, they did not appear. 15. The Youth Court gave notice to the applicant ’ s parents to appear before it on 21 October 2013. The parents gave evidence without the social services being present and stated that their daughter did not want to give evidence. 16. On 24 October 2013 the public prosecutor requested the judge to place the child in the care of the social services and in a specialist institution. 17. On 9 December 2013 the Youth Court, after hearing evidence from the parents and adding to the file the conversations which the applicant, who had refused to give evidence, had had on Facebook, and taking into account the fact that the social services had not attended the hearing, decided that it was necessary to place the child in the care of the social services. The court ordered her placement in a specialist institution for an initial twelve-month period so that she could follow a specific programme designed to help her to amend her behaviour, which the court described as erratic, and thus to resume a normal life. 18. On 11 December 2013 the social services received a copy of the Youth Court ’ s decision. 19. On 17 December 2013 a first meeting was held between the social services and the applicant ’ s parents. During the meeting the parents told the social services that there was a risk that their daughter might be caught up in a prostitution ring. They informed the social services that a criminal investigation was in progress. 20. On 18 December 2013 the social services contacted the psychiatrist who was treating the applicant and later met the applicant. 21. On 19 December 2013 the public prosecutor at the District Court informed the public prosecutor at the Youth Court that a criminal investigation was in progress concerning two individuals for exploitation of the applicant for prostitution. The applicant had given evidence on 4 and 9 December 2013 (see paragraph 48 below). The public prosecutor stressed that the arrest of the two suspects was imminent, and requested the prosecutor at the Youth Court to inform him of the measures taken to implement the Youth Court ’ s decision of 9 December 2013 (see paragraph 17 above), given that the applicant was due to give evidence at the ad hoc hearing ( incidente probatorio ) ( see paragraph 51 below ). 22. On 20 December 2013 the applicant reiterated that she did not wish to be placed in a specialist institution. 23. However, in January 2014 she consented to such placement. 24. On 30 January 2014 the social services contacted the regional drug addiction agency for advice on how to help the applicant withdraw from drugs. 25. During the night of 30 January 2014 V.C. was the victim of a rape ( violenza sessuale ) committed by two individuals (see paragraph 54 below). On 31 January the applicant went to hospital with a police officer and her mother in order to be examined. 26. On 6 February 2014 the social services told the Youth Court that they had had several meetings with V.C. ’ s parents and with the psychologist and psychiatrist whom she was seeing. They also informed the court that the girl had agreed to be placed in a specialist facility with a view to drug rehabilitation treatment. 27. On 7 February 2014 the social services were informed of the assault on the applicant. 28. On 19 February 2014 the President of the Youth Court made an urgent request to the social services to inform her of the measures taken to assist the applicant. She stressed that, in view of the applicant ’ s age, it was still possible for her to change her behaviour and that a programme should be put in place to protect her from the risks she was facing. 29. On 25 February 2014, having received no information on the applicant ’ s situation, the Youth Court requested the competent social services departments to draw up a report on the measures taken to assist her. 30. On 13 March 2014 the youth mental health department informed the Youth Court that the applicant had been diagnosed as being anti - social and drug - dependent and that she had agreed to being placed in a treatment centre ( comunità terapeutica ). The department had therefore requested the V. L. centre to admit her. 31. On 17 March 2014 the department dealing with drug dependency issues informed the Youth Court that the applicant had not consented to her placement and that, in any event, a psychiatric expert opinion was required prior to placement. 32. On 27 March 2014 the social services requested that the applicant be placed in a care facility as a temporary measure. On 31 March 2014 the care facility that been chosen stated that it did not have any places available. 33. In a report of 3 April 2014 the department dealing with drug dependency issues informed the court that it had chosen a treatment centre where the applicant could undergo rehabilitation. 34. On 3 April 2014 V. C. ’ s parents requested the Youth Court to enforce the decision of 9 December 2013 ordering their daughter ’ s placement in a specialist institution in order to help her. They also requested that a curator be appointed and that the court take urgent steps to protect their daughter. 35. On 4 April 2014 the Youth Court ordered the child ’ s immediate placement in the Karisma treatment centre. The measure took effect on 14 April 2014. 36. On 2 July 2014 the staff of the Karisma centre observed that the applicant ’ s behaviour was challenging owing to her drug and alcohol dependency. 37. On 19 December 2014 the Karisma treatment centre informed the social services that the applicant ’ s problems persisted and that it did not have the necessary infrastructure to deal with them in view of the applicant ’ s drug addiction. They requested her transfer to a facility specialising in the treatment of minors with drug dependency problems. 38. The social services did not respond to this request. 39. On 7 September 2015 V. C. left the Karisma centre and returned to live with her parents. 40. On 22 October 2015 the social services sent a report to the Youth Court stressing that two meetings had been held with the applicant ’ s parents and that a psychiatric expert assessment had been carried out. According to the expert, the applicant had problems with numeracy and was advised to follow a course of pharmacological treatment. 41. On 19 May 2016 the Youth Court held a hearing that was not attended by the social services. The applicant gave evidence. She stated that she had gone back to school and was continuing to be monitored by the social services. She said that she had made new friends and had had a positive experience in the treatment centre. 42. On 1 June 2016 the public prosecutor ’ s office approved the continuation of the programme that had been put in place. The applicant stated that no such programme had actually been in place. 43. On 22 December 2016 the Youth Court gave notice to two representatives of the social services to appear before it in order to provide an update on the applicant ’ s situation. According to the social services, the applicant ’ s situation had improved and their involvement was thus no longer necessary. 44. On 10 January 2017 the public prosecutor issued an opinion in favour of discontinuing the proceedings instituted on the basis of Article 25 of Royal Decree no. 1404 of 1934. 45. In a decision of 17 January 2017 the Youth Court discontinued the proceedings. B. The criminal proceedings concerning the prostitution ring 46. An investigation into the prostitution ring was opened in April 2013 and was concluded in December of that year. 47. On 25 September 2013 the public prosecutor at the Youth Court reported on the applicant ’ s situation to his counterpart at the Rome District Court. 48. The applicant gave evidence in the criminal investigation on 4 and 9 December 2013. She said that she had worked as a prostitute for two individuals. 49. On 16 January and 6 February 2014 two suspects were arrested. 50. On 21 January 2014 the prosecuting authorities again heard evidence from the applicant. 51. On 26 March 2014, at the ad hoc hearing ( incidente probatorio ), the applicant reiterated that she had worked as a prostitute for the two suspects between August and December 2013. 52. On 17 November 2014 the Rome District Court sentenced the two defendants to prison terms of five years and four years respectively for living on the earnings of prostitution. It also ordered them to pay damages to the applicant, who had applied to join the proceedings as a civil party. The court found that the two defendants had put pressure on the applicant to engage in prostitution, had benefited from the applicant ’ s prostitution and had shared the proceeds. In its decision the court stated that the applicant had been the victim of sexual exploitation from August to December 2013 and that the defendants had been aware of her age. On 4 February 2016 the Court of Appeal upheld the conviction. 53. The applicant stated that she had not received the amount awarded by the courts in respect of damages. C. The criminal proceedings concerning the rape of the applicant 54. An investigation into the gang rape ( violenza sessuale di gruppo ) of the applicant on the night of 30 January 2014 was opened concerning two suspects. The case was set down for preliminary hearing on 6 November 2015 before the Rome District Court. It appears from the file that a further hearing was held on 16 February 2016 and that the proceedings are still pending. | The case concerned a person who, as a minor suffering from alcohol and drug addiction, had been the victim of a child prostitution ring and gang rape. She complained that the Italian authorities had not taken all the necessary steps to protect her as a minor and the victim of a prostitution ring. |
342 | Police violence | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1974 and lives in Istanbul. 6. On 7 June 1999 the applicant and a number of other suspects were taken into police custody by officers from the Security Branch of the Istanbul Security Headquarters ( Güvenlik Şube Müdürlüğü ) on suspicion of membership of the DHKP-C (the abbreviation for the Revolutionary People ’ s Liberation Party/Front, an illegal organisation ). The applicant alleges that she was subjected to torture by police officers for four days. 7. On 9 June 1999 the applicant was taken to a forensic doctor, who noted that the applicant had complained that she had been hung by her arms for approximately ten minutes and that her head had been banged against a wall. The medical report indicates that she had a scrape under her left armpit, a 7-8 cm - long large brown macule on her right forearm and a 3 cm ‑ long oedema on her forehead above the nose. 8. On 11 June 1999 the applicant was brought before the Istanbul public prosecutor and then before a judge at the Istanbul State Security Court. Before both authorities she denied all accusations against her and complained that she had been subjected to ill-treatment while in police custody. She was subsequently detained pending trial. 9. On 14 June 1999 the applicant was examined by the prison doctor, who reported a 4x5 cm mark on her right forearm and a swelling on her right clavicle. According to the medical report, the applicant had stated that her arms felt painful and she had a headache. 10. On 18 June 1999 the applicant filed a complaint with the public prosecutor ’ s office in Istanbul against the police officers of the Security Branch of the Istanbul Security Headquarters, accusing them of having tortured her. She stated in particular that she had been hung by her arms and had received blows to her head. 11. On 8 June 2001 the Fatih public prosecutor issued a decision not to prosecute. The public prosecutor considered that the applicant had not been questioned as a suspect and that there was no evidence showing that the accused police officers had committed the crime of torture. The applicant claims that she was not notified of this decision. 12. On an unspecified date the investigation was reopened. Accordingly, on 18 April 2003 the applicant ’ s statement was taken by a public prosecutor in the prison where she was detained on remand. The applicant stated that at some time in June 1999 she had been taken into custody at the Anti-Terror Branch of the Istanbul Security Headquarters, where she had been ill-treated for seven to eight days. She noted in particular that she had been undressed, threatened with rape, beaten and hung by her arms by the police officers. The applicant stated that she had been unable to use her arms for approximately one month subsequent to her detention in police custody. She further stated that she could identify the police officers in question. 13. On 6 August 2003 the Fatih public prosecutor filed an indictment with the Fatih Criminal Court, charging two police officers, A.T. and Z.T., under Article 245 of the former Criminal Code with inflicting ill ‑ treatment on the applicant while in police custody between 7 and 10 June 1999. 14. On 8 September 2005 the Fatih Criminal Court considered that it lacked jurisdiction to hear the case. The court held that the accusations against A.T. and Z.T. could not be qualified as ill-treatment within the meaning of Article 245 of the former Criminal Code but should be qualified rather as torture under Article 243 of the same Code. The court therefore ordered the transfer of the case to the competent court. 15. The case was referred to the Istanbul Assize Court, which on 22 November 2005 also held that it lacked jurisdiction. It held that in order for Article 243 of the former Criminal Code to apply, the acts of ill ‑ treatment or torture had to be inflicted with the intention to extract information. The court held that the applicant had complained about having been subjected to torture, but she had not alleged that the intent behind such acts had been to extract information from her. The complaint therefore fell under Article 245 of the former Criminal Code and accordingly within the jurisdiction of the Fatih Criminal Court. Consequently, the court referred the case to the Court of Cassation to resolve the jurisdictional dispute. 16. On 2 October 2006 the Court of Cassation held that the case fell within the jurisdiction of the Istanbul Assize Court. 17. On 6 March 2007 the Istanbul Assize Court held a hearing in the case during which the applicant joined the proceedings as a civil party. At the same hearing, the applicant made statements to the court. During her examination, she identified Z.T. in the courtroom as one of the police officers who had interrogated and tortured her. The applicant stated that she had been held at two different facilities while in custody. According to her statements to the court, at the first facility she had been beaten; at the second facility, she had been subjected to various forms of torture, including reverse hanging and sexual harassment by around ten police officers. She had been stripped naked and threatened with rape in front of her sister, and she had been sprayed with pepper gas. At the end of the hearing, the Istanbul Assize Court discontinued the proceedings against the accused police officers on the ground that the prosecution of the offences proscribed by Articles 243 and 245 of the former Criminal Code had become time ‑ barred (the period being seven years and six months at the relevant time). 18. On an unspecified date the applicant lodged an appeal against the judgment of 6 March 2007. 19. On 31 January 2008 the Court of Cassation rejected the applicant ’ s appeal and upheld the judgment of the Istanbul Assize Court. | Arrested in June 1999 on suspicion of being a member of an illegal political organisation, the applicant alleged that while in custody she had been subjected to ill-treatment which had amounted to torture. Furthermore, she argued that the authorities had failed to carry out an effective investigation into her allegations of ill-treatment. |
876 | Respect for private life in the employment context | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and lives in Chişinău. At the time of the events she was thirty-four years old and married. She was a lecturer at the Police Academy. 6. It appears from the case-file materials that at the time of the events the relationship between the applicant and her superiors at the Police Academy were tense and that there had been a set of employment- related civil proceedings between them. 7. On an unspecified date in 2003 the applicant underwent artificial insemination at a fertility clinic and became pregnant with twins. On 3 August 2003 she was seen by a doctor from the No. 7 Centre for Family Doctors (“ the CFD)”, an institution belonging to the Ministry of Health, who ordered her hospitalisation on account of an increased risk of miscarriage. The applicant was hospitalised between 4 and 20 August 2003 and was later closely supervised by a doctor from the CFD. It would appear that the applicant ’ s absence from work during her hospitalisation was certified by a sick note referring to her pregnancy and an increased risk of miscarriage as the reasons for her absence. 8. On 5 November 2003 the President of the Police Academy requested information from the CFD in connection with the applicant ’ s medical leave in August 2003. In particular, he asked who had ordered her hospitalisation, when she had been hospitalised, what had been the initial and final diagnoses, and what treatment she had received. 9. In a letter dated 7 November 2003 the CFD informed the applicant ’ s employer that the applicant had been hospitalised between 4 and 20 August 2003 on account of an increased risk of miscarriage. The letter also stated that this was the applicant ’ s first pregnancy and that she was carrying twins; that the pregnancy had resulted from artificial insemination and that the applicant had hepatitis B. The letter further mentioned that the applicant had obstetrical complications and that she had a negative blood type. A copy of the applicant ’ s medical file from the hospital where she had been hospitalised, containing a detailed description of all the medical procedures she had undergone and of all the medical analyses, was annexed to the letter. 10. On an unspecified date the applicant suffered a miscarriage. According to the medical report, one of the factors which had led to the miscarriage was the stress to which she had been subjected. 11. In January 2004 the applicant initiated civil proceedings against the CFD and the Police Academy and claimed compensation for a breach of her right to private life. She argued, inter alia, that her employer had had sufficient information as to the reasons for her medical leave and had not been entitled to seek further details of such a private nature. Moreover, after the information had been obtained it had not been kept confidential but had been disclosed to everybody at the Police Academy. According to the applicant, the disclosure had caused her serious stress and anxiety. Everyone at her workplace, including her students, had learned details about her private life, and different rumours had begun to circulate. Only two days after the disclosure, she had suffered a miscarriage due to the stress to which she had been subjected. Her husband, who had also been an employee of the Police Academy, had had to resign from his post and accept a less well- paid job. 12. On 6 July 2004 the Centru District Court dismissed the applicant ’ s action on the grounds, inter alia, that the disclosure of information by the fertility clinic had been lawful in view of the ongoing investigation being conducted by the applicant ’ s employer. As to the contention that the employer had disclosed the information to other employees, the court found it to be ill-founded. The applicant appealed. 13. On 2 November 2006 the Chişinău Court of Appeal upheld the applicant ’ s appeal and quashed the above judgment. The court found the applicant ’ s action well-founded and ordered the CFD to pay her 20,000 Moldovan lei (MDL) (EUR 1,124) and the Police Academy to pay her MDL 15,000 (EUR 843). The Court of Appeal found that the CFD had disclosed to the applicant ’ s employer more information than had actually been requested. 14. On 10 May 2007 the Supreme Court of Justice upheld the appeal on points of law lodged by the CFD and dismissed the applicant ’ s claims against it. The Supreme Court held that the CFD had acted in accordance with the law when providing the applicant ’ s employer with medical information about her. The CFD had been under an obligation to provide the Police Academy with such information in the context of the latter ’ s legal relationship with its employee. According to the Supreme Court, at the time of the events there were relations of an employment- law and of a criminal - law nature between the Police Academy and the applicant. The Supreme Court considered that the provisions of the laws on reproductive health and on the rights and obligations of the patient were not pertinent to the case. | This case concerned the applicant’s complaint about a State-owned hospital’s disclosure of medical information about her to her employer. She was a lecturer at the Police Academy and in August 2003, pregnant with twins, was hospitalised for a fortnight due to a risk of her miscarrying. She gave a sick note certifying her absence from work. However, the Police Academy requested further information from the hospital concerning her sick leave, and it replied, providing more information about her pregnancy, her state of health and the treatment she had been given. The information was widely circulated at the applicant’s place of work and, shortly afterwards, she had a miscarriage due to stress. She unsuccessfully brought proceedings against the hospital and the Police Academy claiming compensation for a breach of her right to private life. |
683 | Online hate speech | 2. The applicant company, a limited liability company registered in Vienna, was represented by Ms M. Windhager, a lawyer practising in Vienna. 3. The Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The Background TO the case 5. The applicant is a limited liability company based in Vienna. It owns and publishes a daily newspaper published in print format ( Der Standard ), in digital format (as an “e-paper”) and in an online version ( derStandard.at ). The applicant company describes its work as being of a multi-media nature, and its editorial office ( Redaktion ) does not distinguish between the print and the digital medium. The online news portal run by the applicant company under derStandard.at (hereinafter “the portal”) carries articles assigned to it by the editorial office and discussion forums relating to those articles. At the end of each article, the applicant company invites registered users to post comments with a banner stating “Your opinion counts” and a field entitled “Your comment ...” that allows them to insert text. 6. In the course of the registration process (during which new users have to accept the applicant company’s general terms and conditions, see paragraph 7 below), each user is required to submit his or her name, surname and email address to the applicant company; moreover, he or she may, optionally, submit a postal address. Users are informed that their data will not be seen publicly. 7. The applicant company’s general terms and conditions state that its forums’ rules (the latest version of which can be found on the portal) must be complied with. Under the heading “Community guidelines” the applicant company reminds users that their comments are an essential and valuable part of the portal. It emphasises that the forums’ rules are to be respected and are taken into consideration during moderation, as the quality of discussions is of great concern to it. The portal is described as providing a platform for lively, interesting and inviting dialogue. Under a subheading entitled “quality features [ Qualitätsmerkmale ] of postings” the applicant company provides guidelines on how to write a comment. Under a subheading “forums’ rules” it reminds users that they are responsible for their own comments and that they may be held liable for them; moreover, it is indicated that the applicant company will only disclose user data if required to do so by law. Inter alia, personal attacks in the form of insults, threats or abuse, as well as defamatory statements or statements damaging to businesses, are not accepted. The applicant company reserves the right to delete posts that do not comply with the community guidelines. Offensive, discriminatory or hateful usernames are not tolerated. 8. Under a subheading “procedure for moderation” the applicant company informs its users that it has installed an automated keyword ‑ screening system. All user comments are screened for problematic content by this system before they are published on the portal. In the event that the system flags a problematic comment, the publication of that comment becomes subject to a manual ex ante review. 9. The automated screening system also takes other factors into account – in particular, the number of previous “hits” in respect of comments posted by the same user, or whether the comment was made by someone who has recently registered with the portal. Furthermore, all comments on material relating to particularly sensitive issues may have to undergo a manual review before publication. Discussion forums may be closed, if deemed necessary. 10. After publication, user comments are subject to an editorial review by the applicant company on a regular basis. 11. Moreover, the applicant company has implemented a “notice and take down” system by which other users can trigger a manual editorial review of published user comments by means of a “report” button. 12. According to the applicant company, its moderators review up to 6,000 user comments per day and requests for deletion are granted liberally. User data are disclosed, upon request and in accordance with the law, to third parties if it is sufficiently clear that the comment in question may have violated a person’s rights. comments published on the portalComments concerning K.S. and the FPK Comments concerning K.S. and the FPK Comments concerning K.S. and the FPK 13. On 19 March 2012 an article under the heading “[S.] Brothers take action against forum users” ( Gebrüder [S.] gehen gegen Foren-User vor ) was published on the portal. The article related, inter alia, to K.S., who was at that time a leader of Die Freiheitlichen in Kärnten (FPK), a right-wing regional political party that at the time of the events was represented in the Kärnten Regional Parliament and in the Regional Government in coalition with two other parties. The article quoted a remark made by K.S. describing people who attacked him in forums as “down-at-heel guys who sound off” ( Schmuddeltypen, die sich hier ausrotzen ). The article attracted more than 1,600 user comments. 14. On 22 March 2012 a reader with the username “Tango Korrupti2013” posted the following comment relating to that article: “Corrupt politician-assholes forget, [but] we don’t ELECTION DAY IS PAYDAY!!!!!” ( Korrupte Polit-Arschlöcher vergessen, wir nicht WAHLTAG IST ZAHLTAG!!!!! ) 15. On 23 March 2012 a reader with the username “rrrn” posted the following comment: “[It was] to be expected that FPOe/K, ... ...-opponents would get carried away. [That would] not have happened if those parties had been banned for their ongoing Nazi revival.” (War zu erwarten, dass FPOe/K, ... -Gegner ueber die Straenge schlagen. Waere nicht passiert, wenn diese Parteien verboten worden waeren wegen ihrer dauernden Nazi-wiederbelebung.) 16. On 16 April 2012, K.S. and the FPK requested the applicant company to disclose the name, address and email address (hereinafter “user data”, see paragraph 6 above) of the comments’ authors in order to be able to institute civil and criminal proceedings against them. 17. On 18 April 2012, the applicant company replied that they had deleted the comments but refused to disclose the relevant user data. The time of the deletion was no issue in the following proceedings. Comments concerning H.K. 18. On 5 May 2013 an interview with H.K. under the heading “What you call uproar, I call effective advertising” ( Was Sie Aufruhr nennen, nenne ich Werbewirksamkeit ) was published on the portal. H.K. stated, inter alia, that posters and slogans had to generate emotion, because without emotion there could be no success in politics. He was at that time a member of the Austrian national assembly ( Nationalrat ) and the general secretary of the right-wing Austrian Freedom Party ( Freiheitliche Partei Österreichs, FPÖ). 19. Following the publication of this interview, on the same day a reader with the username “try_error” posted the following comment: “[I]f we did not perpetually misunderstand [the meaning of] freedom of expression and if undermining our constitution and destabilising our form of government were consequently to be made punishable – or at least, if [anti-mafia law] were for once to be applied to the extreme-right scene in Austria – then [H.K.] would be one of the greatest criminals in the Second Republic ...” ( würden wir nicht ewig meinungsfreiheit falsch verstehen und wäre das sägen an der verfassung und das destabilisieren unserer staatsform konsequent unter strafe gestellt, oder wäre wenigstens der mafiaparagraf einmal angewendet worden auf die rechtsextreme szene in österreich, dann wäre [H.K.] einer der größten verbrecher der 2ten republik ... ) 20. On 20 June 2013, H.K. asked the applicant company to delete the comment and to disclose the user data (see paragraphs 6 and 16 above) of the author in order to be able to institute civil and criminal proceedings against him. 21. On 26 June 2013, the applicant company replied that it had deleted the comment but refused to disclose the relevant user data. The time of the deletion was no issue in the following proceedings. Proceedings against the applicant companyProceedings initiated by K.S. and the FPK Proceedings initiated by K.S. and the FPK Proceedings initiated by K.S. and the FPK 22. On 11 June 2012 K.S. and the FPK brought a civil action against the applicant company pursuant to section 18(4) of the E ‑ Commerce Act (see paragraph 37 below). K.S. claimed user data relating to the reader with the username “Tango Korrupti2013” (see paragraph 14 above). The FPK claimed user data relating to the reader with the username “rrrn” (see paragraph 15 above). K.S. and the FPK asserted that the respective posts constituted defamation ( Ehrenbeleidigungen; üble Nachrede ), within the meaning of Article 1330 of the Civil Code (see paragraph 34 below) and within the meaning of Article 111 of the Criminal Code, as well as insulting behaviour ( Beleidigung ) within the meaning of Article 115 of the Criminal Code, and that they needed the user data sought in order for them to be able to lodge claims against those users. 23. The applicant company maintained that it was not obliged to disclose the user data because the comments at issue were not defamatory, but rather constituted permissible value judgments. It referred to K.S.’s position as a politician, the style that he adopted when making public statements, and the kind of expressions used by other members of the FPK. Moreover, it argued that it was – under section 31(1) of the Media Act (see paragraph 35 below), which regulated the protection of editorial confidentiality ( Redaktionsgeheimnis ) – entitled to refuse to disclose its sources. 24. On 10 September 2013 the Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen Wien ) dismissed the action. It held that it could not be established whether the user comments at issue had undergone a manual review before publication. It considered that the applicant company had acted as a host provider and that section 18(4) of the E ‑ Commerce Act (see paragraph 37 below) was thus applicable. It argued that the question of whether a specific comment was covered by the right to freedom of expression was a matter that had to be examined on a case ‑ by ‑ case basis, given that the limits of acceptable criticism were wider for politicians than for private individuals. It went on to examine the content and the context of the postings and stated that they had been made several days after publication of the respective article as two out of more than 1,600 user comments (see paragraph 13 above). The court found that the comment posted by the reader with the username “Tango Korrupti2013” (see paragraph 14 above) did not directly refer to K.S. but was a general statement concerning a public discussion on corruption. It stated that the second comment posted by the reader with the username “rrrn” (see paragraph 15 above) directly referred to the FPK but was based on a sufficient factual basis given that members of the FPK had previously used terms that originated from the diction of National Socialists, such as “the healthy will of the people” ( gesundes Volksempfinden ) and “block warden” ( Blockwart ). The court concluded that the requirements for disclosure under section 18(4) of the E ‑ Commerce Act had not been met, because the plaintiffs had not demonstrated that illegal acts had taken place. It was thus not necessary to examine the applicant company’s submissions concerning the protection of editorial confidentiality. The plaintiffs appealed. 25. On 26 May 2014 the Vienna Court of Appeal ( Oberlandesgericht Wien ) allowed the plaintiffs’ appeal and ordered the applicant company to disclose the requested user data within fourteen days and to pay the costs incurred by the plaintiffs during the proceedings. It established that both comments at issue could in general be categorised as “defamatory” within the meaning of Article 1330 of the Civil Code and had been posted within the context of the article with the title “[S.] Brothers take action against forum users”, published on the applicant company’s portal (see paragraph 13 above). The plaintiffs were thus entitled under section 18(4) of the E ‑ Commerce Act to demand the disclosure of the user data. Referring to the Supreme Court’s established case-law (see paragraph 39 below), the Court of Appeal noted that any distinction between a statement of facts, a value judgment and a potentially “excessive” value judgment ( Tatsachenbehauptung, Werturteil und Wertungsexzess ) had to be determined in proceedings against the actual author of the comments in question and not in proceedings against the relevant service provider. In respect of the instant case, it held that the applicant company could not rely on the protection of the right to editorial confidentiality because it had not been possible to establish whether the user comments at issue had been subjected to a manual review before publication. Thus, there was no connection between the applicant company’s journalistic activities and the users’ comments. Section 31(1) of the Media Act (see paragraph 35 below) required at least some kind of action/review/taking account ( Tätigkeit/Kontrolle/Kenntnisnahme ) by an employee of a media company. The applicant company appealed. 26. On 19 February 2015 the Supreme Court ( Oberster Gerichtshof ) upheld the Court of Appeal’s judgment (see paragraph 25 above). It held that information received by persons covered by section 31(1) of the Media Act was protected by editorial confidentiality under that provision only if it had been disclosed to those persons in the course of their carrying out their journalistic activities. It considered that merely screening for keywords with the aid of software was not sufficient to establish a connection with journalistic activity; editorial ex post reviews would not lead to a different result, because they only related to comments that had already been published. As regards the obligation to disclose user data under section 18(4) of the E ‑ Commerce Act, the Supreme Court held that according to its established case-law (see paragraph 39 below) it was sufficient that a layperson ( juristischer Laie ) was capable of perceiving that a finding of liability under Article 1330 of the Civil Code (see paragraph 34 below) could not be ruled out. If that were the case, the person concerned would have an overriding interest in the disclosure of the user data. The Supreme Court reiterated the wording of the comments at issue (see paragraphs 14 and 15 above) and found that they could in general be categorised as “defamatory” within the meaning of Article 1330 of the Civil Code (see paragraph 34 below). It went on to conclude that an overriding legal interest had therefore been substantiated, without specifying the considerations on which it had based that conclusion. 27. According to the Supreme Court, in the absence of any connection with journalistic activity, there had been no unlawful interference with the applicant company’s right to enjoy freedom of the press under Article 10 of the Convention or section 31 of the Media Act. 28. The Supreme Court’s decision was served on the applicant company’s lawyer on 4 May 2015. Proceedings initiated by H.K. 29. On 26 July 2013 H.K. brought a civil action against the applicant company, seeking to obtain from it user data relating to the reader with the username “try_error” (see paragraph 19 above), and essentially relying on the same arguments as those advanced by K.S. and the FPK (see paragraph 22 above). The applicant company maintained substantially the same arguments as it had in the other set of proceedings (see paragraph 23 above). 30. On 25 November 2013 the Vienna Inner City District Court ( Bezirksgericht Innere Stadt Wien ) dismissed the action. It stated that section 31 of the Media Act was not applicable. Pursuant to section 18(4) of the E-Commerce Act, it examined both the wording and the context of the comment within a political discussion and held that the limits of acceptable criticism were wider as regards a politician as such than as regards a private individual. In this respect, the court emphasized H.K.’s own provocative behaviour as a politician that could be perceived as polarizing and occasionally aggressive and inflammatory. It concluded that the requirements for disclosure under section 18(4) of the E ‑ Commerce Act had not been met, because the plaintiff had not demonstrated that an illegal act had taken place. The plaintiff appealed. 31. On 29 April 2014 the Vienna Regional Civil Court allowed the appeal and ordered the applicant company to disclose the relevant user data within fourteen days and to pay the costs incurred by the plaintiff during proceedings. It relied on essentially the same reasoning as the Vienna Court of Appeal in its judgment of 26 May 2014 relating to the action brought by K.S. and the FPK (see paragraph 25 above). The applicant company appealed. 32. On 15 December 2014 the Supreme Court upheld that judgment for essentially the same reasons as those set out in its judgment of 19 February 2015 (see paragraphs 26-27 above). 33. The Supreme Court’s decision was served on the applicant company’s lawyer on 13 February 2015. | This case concerned court orders for the applicant media company to reveal the sign-up information of registered users who had posted comments on its website, the website of the newspaper Der Standard. This had followed comments allegedly linking politicians to, among other things, corruption or neo-Nazis, which the applicant company had removed, albeit refusing to reveal the information of the commenters. |
830 | In the context of terrorism and national security considerations | 2. The applicant was born in 1977 in Tajikistan. In 2007 he moved to Russia, where he was arrested in 2018 and placed in a temporary detention centre for foreigners for his failure to comply with domestic authorities ’ decision prescribing him to leave the country. He was represented by Mr Y. Mylnikov, a lawyer practising in Velikiy Novgorod. 3. The Russian Government (“the Government”) were represented by Mr M. Galperin, Representative of the Russian Government to the European Court of Human Rights. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background 5. The applicant was born in Tajikistan, which at the time was one of the Soviet Republics. He had three brothers and two sisters. 6. In 2001 he married Ms M., who gave birth to their two children, A. and D. They were born in 2001 and 2003 respectively. 7. On an unspecified date in 2007 the applicant, together with his wife and children, went to Russia and settled there. 8. On 7 April 2008 he received a residence permit for a term of three years. 9. On 16 May 2008 he applied to the Novgorod Regional Department of the Federal Migration Service for Russian citizenship under the simplified naturalisation procedure applicable to former citizens of the USSR. In the section of the application form entitled “Close relatives (husband (wife), parents, children, brothers and sisters)” he mentioned his wife, parents, children and a brother. According to the applicant, he did not mention his two other brothers and two sisters because a duty officer had told him that it was not necessary to list all of his relatives. 10. On 15 July 2008 the applicant was granted Russian citizenship. 11. On unspecified dates later the Novgorod Regional Department of the Federal Migration Service granted Russian citizenship to his wife and two children. 12. The applicant and his wife had two more children, N., born in 2009, and S., born in 2016. 13. The applicant worked in the agricultural sector and owned the apartment where he lived with his family. Annulment of the applicant ’ s Russian citizenship, his passports and the related court proceedingsProceedings “regarding the establishment of a legal fact” Proceedings “regarding the establishment of a legal fact” Proceedings “regarding the establishment of a legal fact” 14. On 28 September 2017 the Novgorod Regional Department of the Ministry of the Interior (“the DMI”, which replaced the Federal Migration Service) applied to the Novgorod District Court of the Novgorod Region (“the District Court”) to have it established as a legal fact that the applicant had submitted false information about his siblings when applying for Russian citizenship in 2008. Such a finding was required for the annulment of the applicant ’ s Russian citizenship. 15. On 20 November 2017 the District Court allowed the application on the grounds that the omission was not disputed by the applicant. The court dismissed his arguments that the officer on duty had advised him not to list all of his relatives; that the missing information was not important; that he did not intend to mislead the authorities; and that he had strong ties with Russia. The first argument was found to be unsubstantiated by evidence and the others were considered to be irrelevant to the subject matter of the case. 16. The applicant challenged that decision by way of an appeal and cassation appeals before the Novgorod Regional Court (“the Regional Court”) and the Supreme Court of Russia. Those courts dismissed the appeals on 14 March, 1 June and 17 August 2018 respectively, endorsing the District Court ’ s reasoning. Annulment of the applicant ’ s Russian citizenship and passports 17. On 5 April 2018, referring to the finding of the domestic courts that the applicant had submitted false (incomplete) information about his relatives, the DMI annulled his Russian citizenship, his “internal passport” (a citizen ’ s identity document for use in Russia) and “travel passport” (a citizen ’ s identity document for use abroad). As a result, the applicant was left without any valid identity documents. Proceedings before the Constitutional Court 18. On an unspecified date in 2018 the applicant challenged the compatibility of section 22 of the Russian Citizenship Act (see paragraph 33 below) with the Russian Constitution. He claimed that it arbitrarily provided for the annulment of Russian citizenship without taking into account a person ’ s individual circumstances. The applicant further noted that Russian law did not stipulate any time-limit for the annulment of citizenship. 19. On 15 January 2019 the Constitutional Court refused to examine his complaint on the merits. It held that the application of the impugned section of the Russian Citizenship Act could only result in the automatic annulment of Russian citizenship if it had been established that a person did not meet the conditions required for obtaining citizenship. It also noted that the wording of the impugned section did not absolve the authorities from taking into account surrounding circumstances, such as the time elapsed since the decision granting Russian citizenship. According to the court, to hold otherwise would be contrary to the principles of the rule of law and justice or the requirements of necessary and proportionate interference with human rights. Lastly, the court mentioned that the decision to annul a person ’ s citizenship could be challenged in court and was thus subject to its scrutiny. entry ban 20. On 12 April 2018 the Novgorod Regional Department of the Federal Security Service drew up a decision imposing on the applicant a thirty ‑ five ‑ year entry ban preventing him from entering Russia until April 2053. It was stated that he posed a threat to national security and public order. He was informed of that decision on 14 June 2018. 21. On an unspecified date he challenged the entry ban before the Regional Court, which dismissed his appeal on 29 November 2018. The court found that the entry ban had been issued by the competent authority on the grounds that he posed a threat to Russia ’ s national security. Without disclosing the information underlying that conclusion, the court held that the impugned measure was appropriate in the applicant ’ s situation. The court noted that he could settle in any country, including Tajikistan. There was no risk to his life there. His family could follow him or stay in Russia. If that happened, he could support them from abroad. 22. The applicant appealed against the Regional Court ’ s decision to the Supreme Court of Russia. The appeal was dismissed on 17 April 2019 on the grounds that the Regional Court when examining the case had not breached substantive or procedural rules of domestic law in a manner that could affect the outcome of the proceedings. Administrative removal 23. On 13 August 2018 the DMI informed the applicant of his obligation to leave Russian territory before 17 August 2018 given the entry ban imposed on him by the Federal Security Service. He did not comply with the order. 24. On 29 November 2018 a DMI officer drew up an administrative offence report in respect of the applicant for breaching the rules governing the stay of foreign nationals in Russia, specifically for his failure to comply with the DMI ’ s order to leave the country. The case was transferred to the District Court for examination on the merits. 25. On the same day, 29 November 2018, that court, taking into account the annulment of the applicant ’ s Russian citizenship, the imposition of the entry ban on him and his failure to comply with the order to leave Russia, found him guilty of an administrative offence under Article 18.8 § 1.1 of the Code of Administrative Offences (“the CAO”), namely “a breach by a foreigner or stateless person of the rules for entry into Russia or staying in the country”. It imposed a fine on him in the amount of RUB 2,000 (EUR 29) and ordered his forcible administrative removal from Russia. 26. The court imposed the minimum fine provided for by domestic law because the applicant had never committed other administrative offences and had dependent minor children. It did not however see any circumstances which would prevent it from applying administrative removal as a sanction. The court dismissed the applicant ’ s argument concerning the adverse effect of the removal on his family situation, stating that a foreigner could not be exempt from compliance with Russian law on the grounds that his relatives were Russian nationals. 27. The applicant was immediately placed in a temporary detention centre for foreigners pending his administrative removal. He appealed against the court ’ s decision, arguing that his removal would be in breach of Articles 3 and 8 of the Convention. 28. On 11 December 2018 the Novgorod Regional Court upheld the decision in question. It stated that there was no evidence that the applicant ’ s removal from Russia would be in breach of Article 3 of the Convention. It also held that Article 8 of the Convention did not prevent States from controlling the entry and stay of foreigners in their territory. Furthermore, according to the court, that Article did not impose on the State an obligation to respect the choice of residence of spouses or to allow family reunification in its territory. interim measures and stay of removal 29. On 10 December 2018 the Court granted the applicant ’ s request for interim measures under Rule 39 of the Rules of Court in connection with his complaints under Articles 3 and 8 and indicated to the Russian Government not to remove him to Tajikistan for the duration of the proceedings before the Court. 30. On 19 December 2018 the District Court ordered that the proceedings concerning the applicant ’ s removal be stayed for the duration of the proceedings before the Court. The applicant continued to be detained in custody. On unspecified dates he appealed against his detention. 31. On 21 December 2018 and on 22 May 2019 the Regional Court and the Supreme Court of Russia respectively dismissed the applicant ’ s appeals. 32. On an unspecified date in 2019 the applicant challenged the lawfulness of his continued detention in custody, but on 27 September 2019 the District Court declared that it was lawful. | This case concerned a national of Tajikstan’s complaint about decisions to revoke his Russian citizenship and remove him from Russian territory. The applicant had been granted Russian citizenship in 2008, but it had been revoked ten years later when the authorities discovered that he had omitted the names of his brothers and sisters in his application. The applicant alleged that, in the decisions to revoke his Russian nationality and exclude him from Russia, the authorities had failed to duly take into account his family situation or to explain why he had posed a threat to national security. |
502 | Pension scheme | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1939 and lives in Vienna. 9. At the time of the events the applicant was a civil servant in the administration of the Vienna Municipality. On 21 June 1988 the applicant ’ s wife, who was also a civil servant in the administration of the Vienna Municipality, died. During her working life she had paid contributions to the pension scheme established under the Pension Act ( Pensionsordnung ) and the Pension Allowance Act ( Ruhe - und Versorgungsgenuβzulagen - gesetz ). 10. By decision of 22 August 1988 the Vienna Municipality ( Stadtwerke ) granted the applicant a survivor ’ s pension ( Versorgungsgeld - und Versorgungsgeldzulage ) under the relevant provisions of the Pension Act of 1966, and the Pension Allowance Act. Section 15 of the Pension Act in force at the relevant time provided for a survivor ’ s pension in the amount of 60 % of the retirement pension of the applicant ’ s late wife. Hereto was added a proportionate supplementary allowance under Section 6 of the Pension Allowance Act. 11. According to the transitory provision contained in Article II of the Pension Act the monthly payments to which the applicant was entitled amounted to one-third of the survivor ’ s pension from 1 July 1988, two-thirds of the survivor ’ s pension from 1 January 1989 and the full survivor ’ s pension from 1 January 1995. 12. On 1 January 1995 the fourteenth amendment of the Pension Act of 1966 came into force and Article II became invalid with effect from that day. 13. According to Section 15 of the amended Pension Act the survivor ’ s pension amounted to between 40 and 60% of the retirement pension of the deceased civil servant, the concrete percentage to be calculated on the basis of the retirement pensions of both spouses. 14. According to Section 64e of the Amended Pension Act, former Section 15 was still applicable to entitlements to a widow ’ s pension or a pension of a widower who was incapable of gainful employment and indigent, which had been acquired prior to 1 January 1995. 15. On 2 January 1995 the Vienna Municipality reduced the amount of the applicant ’ s survivor ’ s pension to 40% of his late wife ’ s retirement pension. 16. On 16 January 1995 the applicant appealed against this decision. He submitted that, had he been a woman in a similar position, former Section 15 of the Pension Act would have applied to him and he would have been entitled to a survivor ’ s pension in the amount of 60% of his late wife ’ s retirement pension instead of the 40% which he received now under the amended Pension Act and the Pension Allowance Act. This violated his constitutional right to equal treatment. 17. On 16 May 1995 the Appeals Board of the Vienna Municipality ( Berufungssenat ) dismissed the appeal. 18. On 13 July 1997 the applicant filed a complaint with the Constitutional Court ( Verfassungsgerichtshof ). 19. On 8 October 1997 the Constitutional Court declined to deal with the applicant ’ s complaint for lack of prospects of success. 20. On 19 December 2001 the Administrative Court ( Verwaltungs-gerichtshof ) to which the case had been transferred upon the applicant ’ s request, dismissed the applicant ’ s complaint. 21. It referred, inter alia, to case-law of the Constitutional Court concerning similar provisions of the Pension Act 1965. The Constitutional Court had found that in the light of continuing change in attitudes towards the equality of sexes, an exclusion of a widower from survivor ’ s payments would, as a rule, constitute a violation of the principle of equal treatment. 22. There was, however, no constitutional concern about provisions which, in the course of an adjustment process, provided for equal rights of widows and widowers to a survivor ’ s pension as of a certain date, but maintained differences as regards the entitlement to survivor ’ s pensions acquired prior to that date. This decision was served on the applicant ’ s counsel on 25 January 2002. | The applicant complained about the reduction of his survivor’s pension under the amended Pension Act and the Pension Allowance Act. According to the provisions of this Act, widowers were entitled to receive 40% of the pension their deceased wife had acquired before January 1995 while widows were entitled to 60% of the pension of their deceased husband. The applicant’s appeals, submitting that, had he been a woman in a similar position, he would have been entitled to 60%, were unsuccessful. |
634 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant, Tønsbergs Blad A/S, is the publisher of the newspaper Tønsbergs Blad. The second applicant, Mrs Marit Haukom, is its former editor-in-chief. She is a Norwegian national who was born in 1952 and lives in the city of Tønsberg in southern Norway. A. Background to the case 7. Tønsbergs Blad is a regional newspaper covering primarily the city of Tønsberg and eight surrounding municipalities in the County of Vestfold. The newspaper is 100% owned by Orkla Media A/S. It is published six days a week. In 2002 it had a daily average circulation of 33,314, corresponding to a 60% household coverage within its primary circulation area. 8. In a meeting held on 21 September 1999 the Standing Committee on Development and Environmental Affairs (a politically appointed body attached to the Municipal Council) of the Tjøme Municipality asked the municipal administration to provide a survey of properties whose owners were suspected of breaching permanent residence requirements. Under section 5(3) of the Concession Act ( Lov om konsesjon ved erverv av fast eiendom ) of 31 May 1974 ( no. 19 ), such requirements applied to the extent that it was deemed necessary to prevent private properties intended for permanent residential use from being transformed into holiday homes. Provisions to this effect were further contained in Regulation ( forskrift ) no. 2089 of 14 December 1984, issued under the above-mentioned Act in respect of the Tjøme Municipality, one of the few municipalities in Norway which applied permanent residence requirements for all - year residences. The purpose was to fend off pressures exerted on the local community by the exceptionally high demand for holiday homes in the Tjøme area, an attractive holiday destination for a large number of people residing notably in the Oslo region. There was also a concern that too many residences were unoccupied during off - season periods. 9. On 11 October 1999 the municipal administration drew up a list which was entitled “Properties which should be verified in relation to the residence requirements. (Not public)”. It was a tip-off list based on information from inhabitants and local politicians in the Municipality and was presented to the Standing Committee at a meeting open to the public held the following day. The list included the name of Mr Tom Vidar Rygh, who at the time was the Executive Vice-President, the Head of Financial Investments and a member of the Executive Board of Orkla ASA, one of Norway's largest industrial companies. 10. The property in question had been acquired in 1987 and Mr Rygh's wife held title to it (a fact that was not deemed significant in the defamation proceedings summarised below). An all-year residence had been erected on the property in 1988 and the Rygh family had used it as their main residence for 10 years until 1998, when they had moved to Oslo because of Mr Rygh's professional situation. Before that, they had been given legal advice that using the property solely for holiday purposes would not conflict with the residence requirements under the relevant national law. 11. Mr Terje Wilhelmsen, a journalist, became aware of the process initiated by the Tjøme Municipality and received a copy of the above-mentioned list. He had a close network of contacts within the Municipality. From autumn 1999 he made a number of enquiries to the Municipality on the subject. On 7 June 2000 the journalist interviewed the director of the Municipality's Planning and Building Department ( leder for plan- og bygningssaker ), Mr Dag Dreyer Sæter. B. The contested publication of 8 June 2000, subsequent exchanges between those concerned and other publications 12. On 8 June 2000 the newspaper published as its main story an article written by Mr Wilhelmsen, which gave rise to the defamation proceedings brought against the applicants by Mr Rygh. On the front page there appeared an introduction to the article under the headline (all quotations below are translations from Norwegian): “ May be forced to sell ” and the sub- heading “ [H.K.] and Tom Vidar Rygh will have to explain themselves on permanent residence requirements ” The introduction read: “ Permanent residence requirements : In the worst - case scenario [ H.K. ] may be forced to sell her property at Hvasser [an island next to Tjøme ]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor [ Fylkesmannen ] in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements. Taking action : The Tjøme Municipality will now take a firm line towards house owners within the Municipality who do not comply with the permanent residence requirements. For a long time there has been a zero limit on concessions at Tjøme. This means that all-year residences must be inhabited all year. Those who breach this requirement may be forced to rent out or to sell their property. This is confirmed by the director of the Planning and Building Department, Mr Dag Dreyer Sæter .” The front page also contained photographs of Mrs H.K. (a famous singer) and of Mr Rygh. 13. The article continued inside the paper on page 3 with the following headlines : “ Tjøme hunts for permanent residence sinners [H.K.] and Tom Vidar Rygh may be forced to sell” and an introduction: “ TJØME : Both singer [H.K.] and Orkla director Tom Vidar Rygh may be forced to sell their properties in Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.” 14. At the top of page 3 the paper published photographs of Mrs Rygh's and Mrs H.K.'s respective properties. Under the former photograph, to the left, there was a caption: “ RESIDENCE REQUIREMENTS : Tom Vidar Rygh owns this property in Sandøsund at Hvasser. The Tjøme Municipality considers that the residence requirements are not satisfied .” Between the two above-mentioned photographs there was a small photo of Mr Rygh with this caption: “ MUST PROVIDE AN EXPLANATION : - It must be due to a misunderstanding, says Tom Vidar Rygh ” 15. The article stated: “ The Tjøme Municipality is now in the process of tightening up the obligation to comply with the residence requirement in the municipality. A zero concession limit has long since been introduced. This means that year-round properties must be lived in all year. Confrontation In the near future the technical services department of the Tjøme Municipality will approach the County Governor in order to report its suspicion that the residence requirement is not being fulfilled for a number of properties. It is then up to the County Governor to confront the owners of these properties. The director of the Planning and Building Department, Mr Dag Dreyer Sæter, does not wish to comment to Tønsbergs Blad as to which properties are on the list they are sending to the County Governor. But from what Tønsbergs Blad has been given to understand, the property of Tom Vidar Rygh at Sandøsund on Hvasser island is on the list. The same applies to H.K.'s property, which is at Nes on Hvasser. Clearing up ' I cannot comment on individual properties at the present time. First we must write to the County Governor. This will occur in the near future. ' ' But will the Tjøme Municipality now tighten up the obligation to comply with the residence requirement? ' ' Yes, indeed. This is an issue that has been discussed at both the administrative and the political levels for some time. Now we want to do something about it. We know that the residence requirements are not being complied with for several properties in the municipality. This is why we are now taking this initiative vis-à-vis the County Governor. Now we want to get this cleared up.' Can be rented out ' What are the owners of these properties risking?' ' To begin with, they will have to explain themselves to the County Governor. I would emphasise that it is not a requirement that the owners themselves live in the properties. It is enough for them to be rented out on a year-round basis. If this is not done, there may be a question of enforced sale,'says the director of the Planning and Building Department Dag Dreyer Sæter to Tønsbergs Blad. ' Misunderstanding' H.K. owns the property on Hvasser together with her husband ... He does not wish to comment on the matter to Tønsbergs Blad, in view of the fact that he has heard from neither the Municipality nor the County Governor. Tom Vidar Rygh told Tønsbergs Blad that if his property on Hvasser was on the Municipality's list of properties where the residence requirements are not being fulfilled, this had to be due to a misunderstanding. Beyond that he did not wish to comment .” 16. Below, on the same page, Tønsbergs Blad published another article based on interviews with local politicians: “ Residence requirements are a two -edged sword TJØME : May- Sylvi Hansen, who is the leader of the Conservatives on Tjøme Municipal Council, thinks that the time is ripe for a new and thorough political debate on the question of residence requirements. Anne Vestad ' The whole question of residence requirements is a two -edged sword', she says. The Tjøme Conservatives have the maintenance of the residence requirements in their manifesto, but at the same time the party feels a need to have a broad political debate on the question. May- Sylvi Hansen, who in addition to being the leader of the Conservatives on Tjøme Municipal Council also sits on the Planning and Environment Committee, tells Tønsbergs Blad that at any rate she sees no reason for a tightening-up of the obligation to fulfil the residence requirements now. ' The residence requirements issue is under discussion in the Tjøme Conservative Party, and the question is whether we should perhaps be a little more liberal in the time to come. But this is a two-edged sword. On the one hand we don't want to see year-round residences made into summer homes, but on the other hand we have had considerable migration to Tjøme in recent years – the population is growing fast,'says May- Sylvi Hansen. Not a problem any more ' In the seventies and eighties the residence requirements were entirely necessary in this municipality. But in my opinion, after the big migration to the municipality began, empty houses in the winter are no longer a problem. We should therefore undertake a serious review of the whole issue of residence requirements and ask whether, when all's said and done, it's just an old bogeyman,'says Hansen. Arne Fjellberg of'The Tjøme List'independents, who chairs the Planning and Environment Committee, does not agree with May- Sylvi Hansen that the occupation provisions should be liberalised. ' Must tighten up' ' I fully support the director of the Planning and Building Department's view that it is necessary to tighten up the obligation that the residence requirements be fulfilled. With the mobility and flexibility that many now have in relation to their work, it shouldn't be a problem to live in Tjøme even if you work somewhere else. We want people to live in the houses of Tjøme, make no mistake about that,'says Fjellberg. ' So you don't support May- Sylvi Hansen in her view that it is time for a general rethink of the residence requirements? ' ' The Tjøme List wants to retain the residence requirements, but I'm willing to be a part of a discussion of the residence requirement in general. It could surely be useful,'says Arne Fjellberg .” 17. On 9 June 2000 Aftenposten, one of Norway's largest daily newspapers, published a brief item on the matter, stating, inter alia, that an Orkla director and a famous singer might be forced to sell their properties, without specifying their names. 18. On 12 June 2000 Mr Rygh addressed a letter to the Tjøme Municipality. Its Chief Executive Officer ( Rådmannen ), Mr Gunnar A. Hansø, replied by a letter of 22 June 2000, which stated inter alia : “The Tjøme Municipality is working on a survey of the status of the permanent residence requirements which have been implemented at Tjøme under section 5(3) of the Concession Act. Part of the reason why this work has started now are the enquiries from a number of local residents. These are neighbours to properties which are used, or should be used, for permanent residence but which, according to these enquiries, are not being used for this purpose. The list of properties that must be'checked out'has now become quite extensive. A number of the enquiries result from the lack of knowledge about the contents of the regulations and the circumstances pertaining to the relevant users. Consequently, these properties are being checked out, which is an ongoing process. ... Your wife's property has been reviewed in the same way, and I can confirm that the property, on legal grounds, has now been removed from the list.” 19. On contacting the Tjøme Municipality on 29 June 2000, the journalist Mr Wilhelmsen was informed that the Chief Executive Officer had replied to Mr Rygh and that Mrs Rygh's property had been removed from the list. Mr Wilhelmsen received a copy of the above-mentioned letter of 22 June 2000. 20. On 30 June 2000 Tønsbergs Blad published an article entitled “ No restrictions on new cottages Tjøme Chief Executive Officer points to major loopholes in the Concession Act” with the following introduction: “ Escape : Singer [H.K.] and Orkla director Tom Vidar Rygh escape the permanent residence requirements in the Tjøme Municipality. They were included on the Municipality's list of properties that were subject to residence requirements, but have now been taken off. The reason is that they have built on their land themselves. Thus, the residence requirements do not apply. Major loopholes : Chief Executive Officer Gunnar Hansø (picture) at Tjøme asserts that the Concession Act is filled with holes the size of a barn door. He warns that the Municipality will take up the issue with the Ministry of Agriculture. By exploiting loopholes in the Concession Act, it is easy to get hold of an entirely new holiday home at Tjøme. All you need to do is to acquire a plot and build an all-year residence on it. Then no one can require permanent residence.” 21. The article continued on page 5, with the following headlines and introduction: “ Residence requirements do not apply to new houses [H.K.] and Tom Vidar Rygh do not have to move to Hvasser .” “ TJØME : Singer [H.K.] and Orkla director Tom Vidar Rygh do not have to take up permanent residence in the Tjøme Municipality. The reason: they have built on their properties themselves. Thus the Concession Act does not apply. This means that they do not have to reside here.” 22. In addition the coverage contained photographs of Mr Rygh and Mrs. H.K., with captions stating that they had “escaped” the residence requirements with regard to their properties. There were also photographs of the properties, with captions stating “No residence requirement” and adding that the properties, which had previously been on the Municipality's list of properties not complying with the residence requirements, had now been taken off the list. 23. The article reproduced an interview with the Municipality's Chief Executive Officer, Mr Hansø, who was reported to have said that he had absolutely no wish to comment on individual cases, but confirmed that some had been cleared and removed from the list: “We did this for legal reasons. ” He had further stated, inter alia, that it was unfortunate that the Concession Act, which had loopholes the size of a barn door, did not apply to the purchase of undeveloped sites, but only to properties with buildings on. In practice, that meant that anyone building a year-round residence in the Tjøme Municipality did not have to live in the house at all and could not be forced to move in. They could use it as a summer holiday cabin if they wished. It was not until the residence had been used for a period as a year-round home that the residence requirement would apply, but then only in the event of resale of the property. It could not be fair that residence requirements applied to some properties but not to others. To change this he would raise the matter with the Ministry of Agriculture. 24. On 5 July 2000 Tønsbergs Blad published an article containing, inter alia, an interview with a former Minister of Agriculture, who stated that the loopholes in the Concession Act that had been detected in Tønsbergs Blad's articles were “completely unreasonable” and should be amended. 25. On 5 and 6 July 2000 Mr Rygh conveyed to the newspaper orally and in writing his dissatisfaction with its 8 June 2000 coverage, including the fact that his name had been mentioned. The newspaper responded, orally and in writing. By a letter of 18 July 2000, Mr Rygh's lawyer demanded that Tønsbergs Blad publish a rectification and an apology. The newspaper replied that it had acted in accordance with the ethics of journalism and that, immediately after becoming aware that Mr Rygh's property had been removed from the list, it had accordingly published an article on the front page and had offered him space for his own viewpoints, an offer it had maintained for a period thereafter. An interview with Mr Rygh had not been published, as the newspaper had respected his decision that this was not desirable. 26. In a further article published on 8 August 2000, entitled “ Tønsbergs Blad clarifies”, the paper stated that the properties belonging to Mrs H.K. and Mrs Rygh had been removed from the list in question, that the requirements at issue did not apply to their properties and that, accordingly, there had been no breach of the permanent residence requirements with regard to these properties. C. The defamation proceedings brought by Mr Rygh 27. On 15 September 2000 Mr Rygh instituted private criminal proceedings ( privat straffesak ) before the Tønsberg City Court ( byrett ). He requested that both the introduction on the front page and the article on page 3 be declared null and void under Article 253 of the Penal Code, that Tønsbergs Blad and its editor-in-chief (at the time of publication Mrs Marit Haukom ) be punished under Articles 247 and 431 respectively of the Penal Code and that the newspaper and its editor-in-chief be ordered to pay compensation for non-pecuniary damage under section 3-6 of the Damage Compensation Act 1969. 28. By a judgment of 13 September 2001 the City Court acquitted the applicants and ordered Mr Rygh to pay 183, 387 Norwegian kroner ( NOK ) in respect of their costs. It found that a defamatory allegation had been made but, with reference to Article 10 of the Convention, attached special importance to the public interest of the permanent residence issue and to the freedom of the press in respect of presentation and form. 29. On 26 September 2001 Mr Rygh appealed against the judgment to the Agder High Court ( lagmannsrett ). 30. By a judgment of 21 May 2002 the High Court upheld Mr Rygh's claims in part. 31. As to the first issue, whether the impugned statements amounted to defamation for the purposes of Article 247 of the Penal Code, the High Court observed that it agreed with the City Court that, when considering the 8 June 2000 article in isolation and as a whole, the allegations in question must be understood to mean that the Municipality, after having made a specific assessment of the relevant properties, had taken the stance that a breach of the residence requirements had occurred with regard to Mr Rygh's property, among others, and that his name had therefore been entered on a list which the Municipality had decided to transmit to the County Governor for further processing. The report should therefore be perceived by the ordinary reader as an allegation that Mr Rygh had breached the obligation of residence. 32. As to the question whether this amounted to a defamatory accusation, the High Court held that a breach of the residence requirements did not constitute a criminal offence but that, in a place like Tjøme, many people would regard it as being immoral and an affront to the public interest. The High Court agreed with the City Court that the accusations were not of the most defamatory kind but, not least in view of the strong personal angle of the report, the High Court found that it was capable of damaging Mr Rygh's good name and reputation. An examination of whether it was capable of causing a loss of the reputation required for the exercise of his profession was not necessary. 33. The High Court did not find that the applicants had adduced sufficient proof of the defamatory accusation under Article 249 § 1 of the Penal Code to avoid liability for defamation under Article 247. In this connection it observed: “It is correct that Tom Vidar Rygh's name was mentioned on a list drawn up in October 1999 by the administration of the Tjøme Municipality for its Standing Committee on Development and Environmental Affairs. The heading of the list reads:'Properties which should be verified in relation to the residence requirements'. Further, it was noted that the list was not public. Had the Tønsbergs Blad limited itself to stating this, it would have made an accusation that was true. ... Mr Rygh's name was put on the preliminary'tip-off'list, based on tip-offs from inhabitants, local politicians and others. The High Court has no doubt that a number of local inhabitants could have believed that the residence requirements were breached in so far as Rygh's property was concerned, given the fact that it concerned an all-year residence which had been vacated and used as a holiday home. The mayor of the municipality has explained that he was of the opinion that the permanent residence requirements were breached, as has Mr Sæter, the director of the Planning and Building Department. However, Mr Sæter explained in the proceedings before the High Court that, at that time, he had not conducted a further investigation of the property. His view that the property was subject to the permanent residence requirements had been based on his belief that it had been converted from an older residence. He was fully aware that permanent residence requirements did not apply where a person had acquired an open plot of land and then built a house on it. Mr Sæter also explained that, when he had told the journalist Mr Wilhelmsen that a list would shortly be submitted to the County Governor, he was aware that the list would have to be examined first. According to the High Court's understanding of Mr Sæter, there had been no further elaboration of the preliminary tip-off list since autumn 1999. ... Since Mr Sæter was well aware of the exception to the residence requirements for new buildings on open plots of land, he would have quickly discovered that no obligation of residence applied here. ... The High Court further notes that to date none of the names that were on the provisional tip-off list from the autumn of 1999 have been transmitted to the County Governor because the Municipality believed that there was a breach of the residence requirements. The allegations made by Tønsbergs Blad on 8 June 2000 were therefore demonstrably inaccurate. ” 34. The High Court was divided as to the question whether the accusations were unlawful ( rettstridige ). A majority of four members found that that was the case, whereas a minority of three members agreed with the City Court. 35. However, a qualified majority of minimum five votes was required for finding liability under Article 247 of the Penal Code. Mr Rygh's claim that he had been the victim of unlawful defamation under Articles 247 and 431 by the newspaper and its editor-in-chief, respectively, was therefore rejected. 36. On the other hand, under Article 253 of the Penal Code, which required only a simple majority, the High Court declared the following two statements, published respectively on the front page and on page 3 of the 8 June 2000 issue (see paragraphs 1 2 and 13 above), null and void: “ Permanent residence requirements : In the worst – case scenario [ H.K. ] may be forced to sell her property at Hvasser [an island next to Tjøme ]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements. ” “ ... Tom Vidar Rygh may be forced to sell their properties at Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.” The High Court further decided that the applicants were jointly and severally liable, under section 3-6 of the Damage Compensation Act 1969, to pay Mr Rygh NOK 50,000 in compensation for non-pecuniary damage. The High Court in addition decided that no costs should be awarded with respect to the proceedings either before the City Court or the High Court. 37. The applicants appealed to the Supreme Court against the procedure followed by the High Court ( saksbehandlingen ), namely the fact that the issue of nullification had been determined by a simple majority, and against its application of the law ( rettsanvendelesen ). On 4 September 2002 the Appeals Leave Committee of the Supreme Court granted leave to appeal in so far as the latter ground was concerned but refused such leave with respect to the former ground. 38. By a decision of 1 July 2003 the Supreme Court dismissed the applicants'appeal and ordered them to pay Mr Rygh NOK 673,879 for his legal costs. When deciding on the question whether to declare parts of the newspaper article null and void, the Supreme Court applied Article 2 § 3 of the Code of Criminal Procedure. This limited the scope of the Supreme Court's review of the facts of the case (see further on this below). As far as the question of non-pecuniary damage was concerned, the appeal only referred to the application of the law. Therefore, even though the Code of Civil Procedure was to be applied in this regard, in accordance with Article 435 of the Code of Criminal Procedure, the Supreme Court had to base its examination on the same facts as the High Court in this connection too. 39. In his opinion, to which three other members subscribed, Mr Justice Støle held, inter alia : “ (33) I shall first look at how the statements must be understood. It follows from case - law that the interpretation is part of the application of the law .... It is the statements whose nullification is requested which are to be interpreted. The question is how these must be assumed to have been understood by the readers of the newspaper. Taking the wording as our point of departure, we must then look at what perceptions the statements create in the ordinary newspaper reader. In my opinion there is no conflict between the case-law of the European Court of Human Rights and that of the Supreme Court as regards the subject matter of the interpretation; see the references to'the ordinary reader'in the decisions of the European Court of Human Rights. (34) The statements to be interpreted are included in the newspaper's first story of 8 June 2000. In the usual way the statements must be interpreted in context with the rest of the news report, with its typography and use of pictures. Like the High Court, however, I find it clear that the subsequent articles, carried on 30 June and 8 August 2000, are not of significance for this purpose. I shall return to the significance of the follow-up reportage in another context. Here it is sufficient to show that these are not suitable for shedding light on the meaning of the statements whose nullification is being requested. ... The statements in the story of 30 June 2000 are more of the nature of a description of a subsequent development, namely that Mr Rygh has been'cleared'in the case. I would add – not that my standpoint depends on it – that the distance in time to the article to which the nullification claim applies is also materially greater than in Norsk Retstidende ('Rt') 2002-764. (35) The unanimous High Court has summarised its interpretation as follows: ' When one accordingly considers the article of 8 June 2000 in isolation, the High Court agrees with the City Court that the statements, seen in isolation and as a whole, must be perceived by the ordinary reader as saying that the Municipality, after considering the relevant properties, has taken the position that there has been a breach of the residence requirements for, inter alia, A's property, and that his name has therefore been written down on a list that the Municipality has decided to refer to the County Governor for further action. The story must appear to the ordinary newspaper reader as a statement that Mr Rygh has breached the residence requirements. ' (36) This by and large coincides with my own view. The core of the accusation was that Mr Rygh found himself on a list that the Tjøme Municipality had prepared, and which contained the names of persons whom the Municipality considered to have breached the residence requirements. I do not, however, concur with the majority of the High Court that the story'must appear to the ordinary newspaper reader as a statement that Mr Rygh has breached his residence requirements'. It is clearly apparent from the article that it is the Municipality's opinion that is being reported, and that the list is to be sent to the County Governor for decision. (37) I agree with the High Court that the statements, as interpreted, contain a defamatory accusation; see Article 247 of the Penal Code. It is the first alternative in that provision that is relevant, and the allegation that the Municipality considered that the residence requirements had been breached was liable to damage his'good name and reputation'. An accusation of a breach of the law of this nature must be regarded as defamatory. It is the public's moral judgment of the act that is decisive, and it is not a requirement that actual damage be demonstrated or substantiated. The High Court found that no evidence of the truth of the accusation was presented, and this conclusion is binding on the Supreme Court. ... (40) In the specific weighing of factors in our case, the point of departure must be that Tønsbergs Blad has published a defamatory accusation about factual matters, namely that the Municipality had considered Mr Rygh's property under the rules on residence requirements and was of the opinion that Mr Rygh had breached the residence requirements. In this connection I do not accord any independent weight to the fact that he was not the holder of title to the property. The Supreme Court must find that the accusation was untrue – that applies both to the Municipality's alleged perception that the residence requirements had been breached, and the allegation that Mr Rygh's name was entered on a list that the Municipality, on the basis of such a perception, had prepared of owners of properties in respect of which the residence requirements were supposed to have been breached. As regards the facts, a unanimous High Court has found that this was a provisional'tip - off list'based on tips from inhabitants and local politicians in the Municipality. It had been drawn up by the municipal administration in October 1999, and bore the title'Properties which should be verified in relation to the residence requirements. (Not public)'. The High Court also noted that the Municipality, at the time the newspaper published the article on 8 June 2000, had not'undertaken any further processing of the provisional tip - off list from the autumn of 1999'. The Supreme Court is bound by this assessment of the evidence. (41) The main rule in both Norwegian defamation law and Article 10 of the European Convention on Human Rights is that non-proven defamatory allegations of fact are not protected by freedom of expression. As regards the European Court's case - law, I refer to the judgment of 20 May 1999 in Bladet Tromsø and Stensaas v. Norway ( no 21980/93), § 66, and to the judgment of 7 May 2002 in McVicar v. United Kingdom ( no. 46311/99), §§ 84 and 87; there must be special grounds for departing from this main rule. (42) There is also a distinction between transmission of other people's untrue accusations and the media's own presentation of non-proven defamatory allegations. Freedom of expression stretches further to cover transmission, depending, inter alia, on who has made the allegation that is transmitted. If it is a report from a public authority, as in the Bladet Tromsø case, freedom of expression enjoys stronger protection. (43) In our case it cannot be found that the newspaper has transmitted a defamatory accusation that was made by others. The article gives no source for the accusation, and the Supreme Court cannot depart from the High Court's (the majority's) assessment of evidence with regard to the newspaper's having based itself on an anonymous source in relation to the information that Mr Rygh was on the list that was to be sent to the County Governor and that his property was'thus to be looked into with regard to a breach of the residence requirements'. The reliance on anonymous sources otherwise prevents the courts from testing whether the journalist displayed due care by employing that source; see Rt 1987-764, p. 771, and the European Court of Human Rights'judgment in McVicar, § 86. Referring to anonymous sources should therefore in this connection be equated with accusations made by the newspaper without giving sources. I will return later to the question of what grounds the newspaper had at the time of publication for the truth of the accusation. (44) The decision in Rt -2002-764 and the case - law of the European Court of Human Rights shows that the specific weighing of factors must take into consideration several criteria. Of these I would emphasise the degree of public interest, the nature of the accusation, including whether the accusation is classified as a'value judgment'or a'factual statement', whether it is directed against a public person or a private individual, and the degree of care, including the extent to which the media at the time of publication had factual support for considering the allegation to be true. In general, the protection of the expression will be stronger if it concerns matters of public interest, value judgments, imparting of information, a public person, and if there are strong reasons for holding the allegation to be true. Contrariwise: if the case concerns limited public interest, factual statements, the media's own presentation, private persons and weak grounds for holding the allegation to be true, the protection of the expression will be weaker. (45) That the expression containing the accusation is of public interest is in my view a fundamental criterion for regarding the media's own presentation of untrue defamatory allegations against private individuals about factual matters as being protected by freedom of expression. (46) It is immediately clear that the question of enforcement of the residence requirements for year-round residences in a coastal municipality like Tjøme is of public interest. For Tønsbergs Blad as the local newspaper in the region, this was naturally a topic for critical coverage. The fact that there existed a list of properties that there was a question of referring to the County Governor must also be regarded as being of interest for the residents of the region and the newspaper's readership. Which properties or owners were on the list, on the other hand, must in my opinion be regarded as of limited public interest. If any of the individuals who were entered on the'tip - off list'– for example owing to their function, position of trust or participation in the public debate – had had a special connection to the issue of residence requirements, it might have been different. It may well be the case that the modern news industry makes considerable use of known persons to arouse the interest of the readers. But I agree with the High Court that the fact that Mr Rygh was a relatively famous person as the executive VP of Orkla does not mean that he can automatically be regarded as a public person in relation to the rules on residence requirements. The majority's emphasis on his not having involved himself in the public debate on this topic appears very consonant with the European Court of Human Rights'reasoning in its judgment of 25 November 1999 in Nilsen and Johnsen v. Norway ( no. 23118/93), § 52, first sub-paragraph, with its emphasis on Bratholm's'participation in public debate'as the central theme. (47) I would then return to the question of the journalist's due care in the publication, and view this in the context of the use of an anonymous source and of what factual grounds he had at the time of publication for considering the allegation true. I would first remark that there did not exist any written documentation from the municipality's processing of the matter that could support the allegation, over and above what the unanimous High Court has characterised as'the provisional tip - off list'. As mentioned, the Supreme Court must in my opinion base its decision on what the High Court has found with regard to the use of an anonymous source. I cannot therefore see that it can be found that the newspaper had other sources or other grounds for its allegation that Mr Rygh's name was on a list that the Municipality should'in the near future refer to the County Governor'. This was the basis for the accusation that the Municipality considered that Mr Rygh had breached the residence requirements. Even if use of anonymous sources is a recognised tool of modern journalism, such use of sources will imply a stricter requirement of due care. Moreover, in such a situation, it must to a considerable degree be the newspaper's risk that the factual information conveyed may turn out to be untrue. (48) It is true that the same day the newspaper carried an interview with the director of the Municipality's Planning and Building Department, in which it was confirmed that the Municipality would in the near future be sending a list to the County Governor. But in my opinion the interview does not allow the conclusion to be drawn that the Municipality's processing was concluded and that a definitive list therefore existed. In this connection I would not lay any particular emphasis on the fact that representatives of the Municipality may – before consideration of the tip - off list – have considered that the residence requirement applied to the Rygh family's property. Nor did the journalist claim to have based his story on information from these people. Otherwise, in my view, there are generally grounds for emphasising the big difference between being on a so-called tip - off list that has not been considered by the Municipality and being on a list that the Municipality has decided, after processing and consideration, to refer to the County Governor, who is the central government's supervisory and administrative authority. (4 9) When Mr Rygh was contacted by the journalist immediately prior to the newspaper's running the story on 8 June 2000, his reaction was that the whole thing had to rest on a misunderstanding. Even if it is understandable that the newspaper may have wanted a broader statement from Mr Rygh, I cannot see that he can be blamed for his behaviour here. Without it having any importance for my view on the question I am discussing here, I would like to mention that it was subsequently discovered that Mr Rygh had obtained legal advice on the residence requirements in connection with his family's move to Oslo in 1998 in consequence of his work situation in Orkla. As the situation must have appeared to him, when he was contacted by the journalist immediately before the newspaper ran the story on 8 June 2000, his reaction was in my opinion understandable. The circumstance that I have mentioned here cannot in any event mean that the journalist may be regarded as having acted with due care. (50) The articles that Tønsbergs Blad carried on 30 June and 8 August 2000 are of negligible significance for the questions I have now discussed. The stories came a relatively long time after the initial article. And under Article 253 § 2 of the Penal Code, claims for nullification must be rejected when the person making the accusation'withdraws it before the main hearing in a manner that the court finds satisfactory to the aggrieved person'. Tønsbergs Blad has not, however, requested the case to be dismissed from the courts, and I have no occasion to enter into any discussion of this question. I would, however, remark that Norwegian defamation law is based on the notion that a withdrawal of an allegation has significance in relation to the sanctions, and not the assessment of unlawfulness ( rettstridsvurderingen ). (51) As the case now stands, I cannot agree with Tønsbergs Blad that the newspaper's follow-up report means that there is on the whole a balanced presentation suggesting that the statements in the story of 8 June 2000 cannot be deemed unlawful. The story of 30 June 2000 was in particular angled in such a way as to make it less appropriate as a modification of the original statement's defamatory character; see the use of the expression that Mr Rygh'is escaping'the residence requirements. In the discussion of 8 August 2000, under the headline'Tønsbergs Blad clarifies', there is a more neutral correction, but it is not stated here either that Mr Rygh has not been on any list that has been considered by the Municipality. (52) By way of conclusion I see good reason to emphasise: as will be apparent from what I have reproduced from the first voting judge in Rt. 2002-764, in considering specific statements the press's role as a central practitioner of freedom of expression must be weighed against the interests of privacy, including the reputation of the individual. When the expression concerns a case of public interest, the role of the press as a'public watchdog'means that interference with freedom of expression requires a weighty justification. In our case it is the protection of Mr Rygh's reputation that calls for the interference. The only way I can see the situation is that Tønsbergs Blad could have highlighted the residence requirements issue critically, as it did in the reportage of 8 June 2000, without the strong focus on Mr Rygh personally – a focus that rested on a deficient factual basis. (53) In the light of this I have concluded that the statements of which nullification is requested are not protected by Article 10 of the Convention and that the request must be granted. Since the special arguments regarding the compensation claim for non-pecuniary damage have not been maintained, it follows that this part of the judgment is also upheld. ” 40. The dissenting judge, Mr Justice Rieber-Mohn, stated: “ (56) ... I concur that in its news coverage of 8 June 2000 Tønsbergs Blad published a defamatory statement – an accusation of a factual character – for which there was no factual basis. I also agree with the first voting judge that the core of the accusation is that Mr Rygh found himself on a list that the Tjøme Municipality had drawn up, which contained the names of individuals whom the Municipality considered to have breached the residence requirements. This would, however – assuming it was correct – not have been a final declaration that there had been a breach of the residence requirements. For this reason, among others, I agree with the minority of the High Court and the City Court that the accusation lies in the lower stratum of what can be covered by Article 247 of the Penal Code. I also have the impression that the High Court's majority by and large agree with this. (57) When an untrue defamatory statement is made, the point of departure is also clear under the European Court of Human Rights'case - law concerning Article 10 of the European Convention: the accusation is not protected by freedom of expression. But exceptions to this may be contemplated. If the accusation is to enjoy protection under freedom of expression, it must at the least be demanded that the news coverage in which it is contained is of public interest and additionally that the necessary care was taken by the newspaper. I consider that these criteria were met in this case. (58) There can be no doubt that the general subject with which the newspaper was concerned, and with which the news coverage of 8 June 2000 really dealt, namely compliance with the rules on residence requirements, was and is of great public interest. The question is whether it is in the public interest to publicise a possible breach of the residence requirements on the part of Mr Rygh. I would first mention that in modern journalism it is a common and recognised method of popular education to illustrate general and usually difficult questions by means of the roles and fates of individuals, when they are considered especially relevant. When individuals are unwillingly brought forward, and are subjected to accusations of crime and so forth, a mass medium must have good reasons for this, for example if the person concerned has sought out the light of publicity in this area, or is a prominent person in society who must accept that special demands are made of his integrity and sense of responsibility to society. At the time in question Mr Rygh belonged to the top management of one of the country's biggest industrial conglomerates, and his name was not unfamiliar in the news. In my opinion individuals who have sought prominent positions in society, which require a special degree of trust from the public, must to some extent accept that the media will follow them with the eyes of Argus, not just in their professional activities but also when, in the more private sphere, they challenge laws and other regulations that are particularly meant to safeguard the interests of society. It is therefore possible to conceive of violations of the law by these individuals that in the circumstances will be of public interest, even if the breach carries no criminal responsibility or the penalties are minor. In this case the newspaper thought that Mr Rygh had broken the rules on residence requirements, which in public opinion was and is of major social importance, even if such a contravention is not a criminal offence. I have difficulty seeing that it was not a matter of public interest if such a very prominent person as Mr Rygh had not complied with the residence requirements with regard to his property in the Tjøme Municipality. (59) The question then becomes whether the newspaper has acted with the requisite care. It must be noted that the journalist used an anonymous source when he wrote that Mr Rygh was on the Municipality's list of those who were considered to have breached the residence requirements. It is undisputed that for a long while Tønsbergs Blad had been working on this topic, and that the journalist – who lived at Tjøme – had been in contact with several representatives of the Municipality. It must also be noted that the journalist, on application to the Municipality, received confirmation that there existed a list that the Municipality had drawn up, but the mistake was that this was a list of individuals who, according to external tip -offs, had breached the obligation, and not a list of individuals whom the Municipality had already found to have breached it. The newspaper thus confused the tip - off list, which contained Mr Rygh's name, with the list that the Municipality was indeed to refer to the County Governor for a decision on whether the residence requirements had been complied with. (60) I cannot see that the newspaper is much to be blamed for this confusion. The journalist had reason to believe that a municipal assessment had been carried out at that point. In the story of 8 June 2000 the director of the Planning and Building Department confirmed that technical services would'in the very near future'write to the County Governor regarding individuals whom the Municipality suspected of breaching the residence requirements. The director also stated:'We know that the residence requirements are not being complied with for several properties in the Municipality'. And the director did not wish to say'which properties are on the list we are referring to the County Governor'. This last statement gave the clear impression that the list which the Municipality had assessed already existed. In addition, prominent representatives of the Tjøme Municipality – such as the mayor and the director of the Planning and Building Department – subsequently stated that, at the time when the newspaper had carried the controversial reportage, they had been of the opinion that Mr Rygh was in breach of the residence requirements. This is clearly apparent from the High Court's judgment, both the minority and majority remarks. Tønsbergs Blad was therefore close to the truth in its story of 8 June 2000. I would also mention that, according to the story, the newspaper had approached Mr Rygh for his view of the matter, but he did not want to comment beyond stating that the fact that his name was on the list must have been due to a misunderstanding. ” | This case concerned orders against the applications – the publisher and editor-in-chief of a newspaper – to pay compensation and costs as a result of a newspaper article identifying a leading industrialist as being on a list of householders suspected of contravening local regulations |
579 | Expulsion or extradition cases | I. THE CIRCUMSTANCES OF THE CASE 9. In 1995, at the age of 22, the applicant met a man (“X”) in Iran while attending a secretarial college. She fell in love with him and after some time they decided to get married. 10. However, X’s family was opposed to their marriage. In June 1997 X married another woman. The applicant continued to see him and to have sexual relations with him. 11. In October 1997 the applicant and X were stopped by policemen while walking along a street. The policemen arrested the couple and detained them in custody as X was married. 12. The applicant underwent a virginity examination while in custody. After a few days she was released from detention with the help of her family. 13. In November 1997 the applicant entered Turkey illegally. In February 1998 the applicant went to Istanbul, from where she tried to fly to Canada via France using a forged Canadian passport. 14. When the applicant arrived at the airport in Paris, the French police found her to be in possession of a forged passport. 15. On 4 February 1998 the applicant was put on a plane for Istanbul. Following her arrival at Istanbul Airport at 1 a.m. on 5 February 1998 she was arrested by policemen on the ground that she had entered Turkey using a forged passport. Her passport was sent for examination. 16. On 6 February 1998 the applicant was transferred from a police station inside the airport to the Aliens Department of the Istanbul Security Directorate. She was brought before the Bakırköy public prosecutor on the ground that she had entered Turkey using a forged passport in contravention of the Passport Act 1950. The public prosecutor ordered her release, finding she had not entered Turkey of her free will. The applicant was handed over to the Istanbul Security Directorate with a view to her deportation. When the applicant realised that she was going to be sent to Iran she told the Aliens Department that she was an Iranian national. The applicant lodged an asylum application with the Aliens Department. The police rejected her application as it had been submitted out of time. The applicant was informed that under section 4 of the Asylum Regulation 1994 she should have lodged her application for asylum within five days of her arrival in Turkey. 17. According to the applicant, she was held in detention at the Aliens Department until 26 March 1998. Thereafter, following the intervention of the Ankara branch office of the United Nations High Commissioner for Refugees (UNHCR), she was accommodated at a hotel in Istanbul. 18. On 12 February 1998 a staff member of the UNHCR, with the permission of the authorities, interviewed the applicant about her asylum request under the 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”). On 16 February 1998 the applicant was granted refugee status by the UNHCR on the basis that she had a well-founded fear of persecution if removed to Iran as she risked being subjected to inhuman punishment, such as death by stoning, or being whipped or flogged. 19. On 8 March 1998 the applicant lodged an application with the Ankara Administrative Court against her deportation. She also asked for a stay of execution of her deportation. 20. On 16 April 1998 the Ankara Administrative Court dismissed the applicant’s petitions on the ground that there was no need to suspend her deportation since it was not tainted with any obvious illegality and its implementation would not cause irreparable harm to the applicant. 21. On 4 November 1998 the Ankara Administrative Court found that there was no actual risk of her being deported in view of the fact that she had been granted a residence permit pending the outcome of her application under the European Convention on Human Rights. The court found that it was not required to suspend the deportation order since no such order had yet been made. | The applicant fled to Turkey from Iran in 1997 fearing that she would be convicted of having committed adultery, an offence under Islamic law, and sentenced to be stoned to death or flogged. Before the Court, she complained in particular that her right not to be subjected to ill-treatment would be breached if she were to be deported to Iran. |
315 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 8. The first applicant, the political party Herri Batasuna, was founded on 5 June 1986. 9. The second applicant, the political party Batasuna, was founded on 3 May 2001. A. Background to the case 10. On 27 June 2002 the Spanish parliament enacted Institutional Law no. 6/2002 on political parties ( Ley Orgánica 6/2002 de Partidos Políticos – “ the LOPP”). According to its explanatory memorandum, that Law was intended to develop Articles 1, 6, 22 and 23 of the Spanish Constitution by amending and updating Law no. 54/1978 of 4 December 1978 on political parties, regard being had to the experience acquired over the years, and to establish a complete and coherent framework for political parties, reflecting their role in a consolidated democracy. 11. The main innovations introduced by the new Law appeared in Chapter II on the organisation, functioning and activities of political parties, and in Chapter III on their dissolution and suspension by the courts of their activities. 12. Chapter II lays down the basic criteria intended to ensure compliance with the constitutional requirement that the organisation and operation of political parties be democratic and that they may freely engage in their activities in accordance with the Constitution and the law. Section 9 requires parties to respect democratic principles and human rights, describing in detail the type of conduct that would be in breach of the principles in question. According to the explanatory memorandum, the Law is based on the principle that any project or objective is constitutional provided that it is not pursued by means of activities which breach democratic principles or the fundamental rights of citizens. The Law is not intended to prohibit the defence of ideas or doctrines calling into question the constitutional framework. Its aim is rather to reconcile freedom and pluralism with respect for human rights and the protection of democracy. The explanatory memorandum states that a party may be dissolved only in the event of repeated or accumulated acts which unequivocally prove the existence of undemocratic conduct at odds with democracy and in breach of constitutional values, democracy and the rights of citizens. In that connection, sub-paragraphs ( a), (b ) and ( c) of paragraph 2 of section 9 draw a clear distinction between organisations which defend their ideas or programmes, whatever they may be, in strict compliance with democratic methods and principles, and those whose political activity is based on an accommodation with violence, political support for terrorist organisations or violation of the rights of citizens or democratic principles. 13. Chapter III sets out the grounds on which political parties may be dissolved or their activities suspended by order of the court and describes the applicable procedure in the courts. The Law invests the “ special Chamber ” of the Supreme Court established by section 61 of the Judicature Act ( Ley Orgánica del Poder Judicial – “ the LOPJ ” ) with jurisdiction for the dissolution of political parties. Furthermore, provision is made for specific priority proceedings, involving a single level of jurisdiction, which may be brought only by the public prosecutor ’ s office or the government, of their own motion or at the request of the Chamber of Deputies or the Senate. According to the LOPP ’ s explanatory memorandum, the proceedings in question are intended to reconcile the principle of legal certainty and the rights of the defence with the principle of promptness and a reasonable time -limit. The judgment delivered by the Supreme Court upon completion of those proceedings may be challenged only by way of an amparo appeal to the Constitutional Court. Section 12 details the effects of the court-ordered dissolution of a political party. Once the judgment has been served, the dissolved party must cease all activity. Furthermore, it may not set up a political organisation or use an existing party with a view to pursuing the activities of the party that has been declared illegal and dissolved. In order to rule as to whether or not there is any continuity between an existing party and a party which has been dissolved, the Supreme Court has regard to whether any “substantial similarity” exists between the structure, organisation and operation of the parties in question, or other evidence such as the identity of their members or leaders, their funding or their support for violence or terrorism. The assets of a dissolved political party are liquidated and transferred to the Treasury to be used for social and humanitarian purposes. 14. The LOPP was published in the Official Gazette of the State on 28 June 2002 and came into force the following day. B. Proceedings to dissolve the applicant parties 15. The facts of the case, as submitted by the parties, may be summarised as follows. 1. Founding of the applicant parties as political parties 16. Founded as an electoral coalition, the political organisation Herri Batasuna took part in the general elections of 1 March 1979 ( the first elections in Spain following the entry into force of the 1978 Constitution ). On 5 June 1986 it was entered into the register of political parties at the Ministry of the Interior. 17. Following the Supreme Court ’ s sentencing on 1 December 1997 of twenty-three members of Herri Batasuna ’ s national directorate to imprisonment for collaboration with an armed organisation, Euskal Herritarrok ( “ EH ” ) was set up on 2 September 1998 to stand in the Basque elections of 25 October 1998, initially as an association of voters and then as a political party. 18. On 3 May 2001 Batasuna filed documents at the register of political parties seeking registration as a political party. 2. Action brought by the autonomous government of the Basque Country challenging the constitutionality of the LOPP 19. On 27 September 20 02 the Basque autonomous government brought an action before the Constitutional Court challenging the constitutionality of the LOPP, criticising in particular sections 1 ( 1 ), 2 ( 1 ), 3 ( 2 ), 4 (2) and ( 3 ), 5 ( 1 ), 6 and 9, Chapter III ( sections 10 to 12) and paragraph 2 of the sole transitional provision of that Law. 20. By a judgment of 12 March 2003, the Constitutional Court declared the impugned Law constitutional. As regards the very existence of such a Law making provision for the dissolution of political parties and its purpose which, according to the Basque government, consisted of “ establishing a model of militant democracy imposing restrictions on political parties, in particular by imposing on them an obligation, not provided for in the Constitution, to accept a given political regime or system ”, the Constitutional Court stated : “ According to the applicant government, the argument set out above is based on references in certain paragraphs of sections 6, 9 and 10 of the LOPP to the ‘ constitutional values expressed in constitutional principles and human rights ’ ( section 9 ( 1) ), to ‘ democratic principles ’ ( sections 6 and 9 ( 2) ), to the ‘ system of liberties ’ and to the ‘ democratic system ’ ( sections 9 ( 2 ) and 10 ( 2 ), sub- paragraph ( c) ), to the ‘ constitutional order ’ and to ‘ public peace ’ ( section 9 ( 2 ), sub- paragraph ( c) ). Despite the fact that the legal significance of those references can be grasped only in the context of each of the provisions containing them and that each of the provisions in question must in turn be interpreted in the light of the law and of the legal system as a whole, the Basque government ’ s submission that there is no place, in our constitutional order, for a model of ‘ militant democracy ’ within the meaning given to that expression by the Government, namely, a model in which not only compliance with, but also positive acceptance of, the established order and first and foremost the Constitution is required, must be endorsed ... The impugned Law allows for no such model of democracy. Right at the outset, the explanatory memorandum lays down the principle of a distinction between the ideas and aims proclaimed by political parties, on the one hand, and their activities, on the other, and states that ‘ the only aims explicitly vetoed are those which fall within the criminal law ’, so that ‘ any project or objective is deemed to be constitutional provided that it is not pursued by means of activities which breach democratic principles or the fundamental rights of citizens ’. Consequently, and as regards the aspect which is of particular interest here, the Law lists as grounds for illegality ‘ conduct ’ – that is to say, acts – of political parties which, through their activities, and not through the ultimate aims proclaimed in their manifestos, fail to satisfy the requirements of Article 6 of the Constitution, which the impugned Law merely mentions. ... Secondly, and most importantly, it is clear that the principles and values to which the Law refers can be none other than those proclaimed by the Constitution, and that their content and scope depend on the meaning arising out of the interpretation of the positive constitutional provisions as a whole. Thus, in our system, ‘ democratic principles ’ can only be principles specific to the democratic order arising out of the institutional and normative fabric woven by the Constitution, the actual functioning of which leads to a system of powers, rights and balances giving form to a variant of the democratic model which is precisely that assumed by the Constitution in establishing Spain as a social and democratic State governed by the rule of law (Article 1 § 1 of the Constitution).” 21. As regards the applicant parties ’ argument that the provisions of the Law, namely some of the cases referred to in section 9 ( 3 ) (tacit support, for example ), established a “ militant democracy ” in breach of the fundamental rights of freedom of ideology, participation, expression and information, the Constitutional Court stated : “ ... the system established by the first three paragraphs of section 9 of the LOPP must firstly be described. The first paragraph refers not to a positive adherence of any kind but to simple respect for constitutional values, which must be demonstrated by political parties when engaging in their activities and which is compatible with the broadest ideological freedom. Paragraph 2 provides that a political party may be declared illegal only ‘ when as a result of its activities, it infringes democratic principles, in particular when it seeks thereby to impair or to destroy the system of liberties, to hinder or to put an end to the democratic system by repeatedly and seriously engaging in any of the conduct described below ’. Lastly, sub- paragraphs ( a), ( b) and ( c ) list the general criteria for a party to be declared illegal on account of its activities ... As regards paragraph 3 of section 9 of the LOPP, the flawed drafting of its introduction might suggest that the instances of behaviour described by that provision are in addition to those specified in the preceding paragraph and that they must therefore be interpreted separately. However, an interpretation of these two provisions taken together and an interpretation of the whole section which contains them show that the instances of behaviour described in paragraph 3 of section 9 have the general features described in paragraph 2 of the same section. The instances of behaviour referred to in section 9 ( 3 ) of the Law merely specify or clarify the principal causes of illegality set out in general terms in section 9( 2 ) of the Law. A separate interpretation and application of such conduct can be done only on the basis of the cases provided for in section 9 ( 2 ). That having been said, while it is not for the Constitutional Court to determine whether or not mere failure to condemn [terrorist acts] can be construed as implicit support for terrorism, it is clear that symbolic actions can be used, in certain circumstances, to legitimise terrorist acts or excuse or minimise their anti-democratic effects and implicit violation of fundamental rights. In such circumstances it is plainly impossible to speak of a violation of the right to freedom of expression. ... The same can be said, in general, of sub- paragraph ( c) of section 10 ( 2 ) of the LOPP, which provides : ‘ where, through its activities, it repeatedly and seriously violates democratic principles or seeks to impair or to destroy the system of liberties or to hinder the democratic system or to put an end to it by means of the conduct referred to in section 9. ’ It must also be stated in this regard that that provision concerns only the activities of political parties and in no way extends to their aims or objectives. The wording of that provision shows, therefore, that only those parties which through their activities rather than their ideology effectively and proactively seek to ‘ impair or to destroy the system of liberties ’ are liable to be dissolved. ” 22. As regards the Basque government ’ s complaint that the dissolution measure prescribed by law was disproportionate, the Constitutional Court stated: “ ... taken separately, none of the conduct described in section 9 of the LOPP can entail a party ’ s dissolution. In order for that measure to be pronounced, as stated in section 9( 2 ), the conduct in question must be engaged in ‘ repeatedly and seriously ’. Secondly, it must be pointed out that the existence of a party which, through its activities, collaborates with or supports terrorist violence, jeopardises the survival of the pluralist order proclaimed by the Constitution and that, faced with that danger, dissolution would appear to be the only sanction capable of repairing the damage done to the legal order. Lastly, it must be stressed that Article 6 of the Constitution contains a definition of a party. According to the Constitution, a party may only be considered a party if it is the expression of political pluralism. Consequently, it is quite acceptable, constitutionally, for a party whose activities undermine pluralism and to a greater or lesser extent destabilise the democratic order, to be dissolved. Similarly, the European Court of Human Rights has considered that even though the margin of appreciation left to States must be a narrow one where the dissolution of political parties is concerned, where the pluralism of ideas and parties inherent in democracy is in danger, a State may forestall the execution of a policy at the root of that danger [ Refah Partisi ( the Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98, 31 July 2001]. ... it is not sufficient to establish the existence of just one of the acts described by the Law. On the contrary, those acts need to be engaged in ‘ repeatedly and seriously ’ ( section 9( 2) ) or ‘ repeatedly or cumulatively ’ ( section 9 ( 3) ). ... To conclude, [ the relevant provisions ] describe particularly serious conduct and establish as grounds for dissolution only those which are manifestly incompatible with the peaceful and lawful means which are an essential part of the process of political participation to which the Constitution requires political parties to lend their qualified support. ... The criteria established by the case-law of the European Court of Human Rights as regards the dissolution of political parties have therefore been complied with ( United Communist Party of Turkey and Others v. Turkey, 30 January 1998, Reports of Judgments and Decisions 1998 ‑ I; Socialist Party and Others v. Turkey, 25 May 1998, Reports 1998 ‑ III; Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, ECHR 1999-VIII; Refah Partisi ( the Welfare Party ) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98, 31 July 2001 and [GC], ECHR 2003 ‑ II; Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, ECHR 2002 ‑ II; and Dicle for the Democratic Party (DEP) of Turkey v. Turkey, no. 25141/94, 10 December 2002). That case-law states that in order to comply with the European Convention on Human Rights, the dissolution of a party must satisfy certain criteria, namely : ( a) the law must include the circumstances and causes of dissolution (that criterion is clearly satisfied by the rules at issue, since they are set out in a formal law ); ( b) the aim pursued must be legitimate ( which, as indicated above, consists in the instant case of protecting the democratic process of political participation through the exclusion of any associative organisation which could be likened to a party exercising an activity not falling within the constitutional definition of political parties); and ( c) the dissolution must be ‘ necessary in a democratic society ’ (demonstrated in the context of the foregoing analysis of the specific causes of dissolution provided for by law). ... The fact that convicted terrorists are regularly appointed to positions of leadership or entered on lists of candidates for election may appear to constitute an expression of support for terrorist methods which goes against the obligations imposed by the Constitution on all political parties. Furthermore, the fact that such a practice can be taken into account only if the convicted terrorists have not ‘ publicly rejected terrorist aims and methods ’ cannot be interpreted as an obligation to disavow earlier activities. The provision in question [ section 9 ( 3 ) ( c)] is of prospective effect only and applies only to political parties which are led by convicted terrorists or whose candidates are convicted terrorists. It lays down as a cause of dissolution the regular use of people who may legitimately be assumed to sympathise with terrorist methods rather than with any ideas and programmes that terrorist organisations might seek to implement. ... ” 23. Lastly, as regards the Basque government ’ s complaint that the principle of non- retrospectivity in relation to section 9 ( 4 ) of the LOPP and paragraph 2 of the sole transitional provision had been violated, the Constitutional Court held : “ For the purposes of applying section 9( 4 ) of the LOPP, which lists the factors that can be taken into account in assessing and characterising activities that may give rise to the dissolution of a political party, the aforementioned paragraph characterises as unlawful ‘ the establishment, on a date immediately preceding or following the date of entry into force, of a political party which pursues the activities of another party or succeeds that party with a view to evading application of the provisions of this Law in respect of it ’. Worded as it is, that provision cannot be held to be unconstitutional as it is quite clear that its sole purpose is to enable section 9 ( 4 ) of the LOPP to be applied ‘ to activities pursued after the entry into force of this Institutional Law ’, as stated therein. In no circumstances does it make provision for the judging of activities and acts prior to the LOPP, since only those subsequent to the entry into force of the Law are deemed to be relevant. In other words, the Law specifically states that the various causes that may lead to dissolution of a party may be taken into account only after its entry into force. The activities considered separately and ‘ the continuing nature or repetition ’ of the activities mentioned in section 9( 4 ), to which the transitional provision refers, are subsequent to the entry into force of the LOPP. That said, for the purposes of determining the significance of those activities and assessing their relevance to the overall conduct of the party concerned ( and for that purpose only, since to take account of conduct pre - dating the effective date of the Law in order to justify a declaration of unlawfulness would be unconstitutional because it would constitute a breach of the principle of non- retrospectivity enshrined in Article 9 § 3 of the Constitution), it is perfectly possible to take into consideration what the Law refers to as the ‘ trajectory ’ ( section 9 ( 4 ) ) of the party in question, which trajectory could encompass acts prior to the entry into force of the Law, but that cannot in any way be considered as a retrospective effect under the Constitution .” 24. The Constitutional Court also rejected the complaints based on the principle of non bis in idem, the lack of foreseeability and the exceptional nature of the Law, the specific features of the judicial proceedings and the allegations concerning the system for founding and registering political parties. Accordingly, it dismissed the applicant parties ’ claims, stating in paragraph 23 of its reasoning that sections 3 ( 1 ), 5 ( 1 ), 9 ( 2 ) and ( 3 ) and paragraph 2 of the sole transitional provision of the LOPP were constitutional only if “ interpreted in accordance with the terms set out in paragraphs 10, 11, 12, 13, 16, 20 and 21 ” of the reasoning of its judgment. 25. The government of the Autonomous Community of the Basque Country subsequently lodged an application with the Court ( no. 29134/03), which was declared inadmissible on the ground of incompatibility ratione personae on 3 February 2004. 3. The proceedings to dissolve the applicant parties 26. Meanwhile, by a decision of 26 August 2002 delivered in the context of criminal proceedings for illegal association ( Article 515 of the Spanish Criminal Code ), central investigating judge no. 5 at the Audiencia Nacional had ordered the suspension of Batasuna ’ s activities and the closure, for three years, of any headquarters and offices that could be used by Herri Batasuna and Batasuna. The same measure was applied to EH, which is not an applicant before the Court. 27. On 2 September 2002, implementing an agreement adopted by the Council of Ministers on 30 August 2002, the Attorney - General ( Abogado del Estado ) lodged an application with the Supreme Court on behalf of the Spanish government for the dissolution of the political parties Herri Batasuna, EH and Batasuna on the ground that they had breached the new LOPP on account of various acts which conclusively demonstrated conduct inconsistent with democracy, constitutional values, democratic practice and the rights of citizens. 28. On the same day, State Counsel ( Procurador General ) also filed an application with the Supreme Court with a view to the dissolution of the political parties Herri Batasuna, EH and Batasuna in accordance with sections 10 et seq. of the LOPP. In his application, he asked the Supreme Court to find that the parties in question were illegal, and order that they be removed from the register of political parties, that they immediately cease their activities and that the effects of the Law be extended to any party newly created in breach of the Law or succeeding any of the parties concerned, that their assets be liquidated and that they be dissolved in accordance with section 12( 1 ) of the LOPP. 29. On 10 March 2003 Batasuna sought the referral of a preliminary question to the Constitutional Court concerning the constitutionality of the LOPP as it was of the view that the Law as a whole, and several of the sections thereof taken separately, violated the rights to freedom of association, freedom of expression and freedom of thought, and the principles of lawfulness, legal certainty, non- retrospectivity of less favourable criminal laws, proportionality and non bis in idem, as well as the right to take part in public affairs. 30. By a unanimous judgment of 27 March 2003, the Supreme Court refused to refer Batasuna ’ s question to the Constitutional Court, pointing out that that organisation ’ s challenges to the constitutionality of the LOPP had already been examined and rejected in the Constitutional Court ’ s judgment of 12 March 2003. It declared Herri Batasuna, EH and Batasuna illegal and pronounced their dissolution under sections 9 ( 2 ) and ( 3 ) of the LOPP on the ground that they were part of “ a terrorist strategy of ‘ tactical separation ’ ”. It considered that significant similarities between the three parties at issue, and between them and the terrorist organisation ETA – “ three organisations having substantially the same ideology ... and, moreover, tightly controlled by that terrorist organisation ” – had been established. It concluded that in reality there existed a “ single entity, namely, the terrorist organisation ETA, hidden behind an apparent plurality of legal entities created at different times according to an ‘ operational succession ’ devised in advance by that organisation ”. It also liquidated the assets of the parties at issue, in accordance with section 12 ( 1 )( c) of the same Law. 31. The Supreme Court noted in its judgment that, while political parties constituted the essential foundations of political pluralism, they had to engage in their activities and pursue their aims and objectives in accordance with the law and democratic processes, stating that activities involving the use of violence or restricting the fundamental rights of others could not be tolerated. The Supreme Court referred to the Spanish constitutional system, which, in its view, unlike other legal systems, did not constitute a model of “ militant democracy ”, since the only condition imposed on the expression of differences was respect for the rights of others. It pointed out that the LOPP recognised that any project or objective was constitutional provided that it was not “ pursued by means of activities which breach [ ed ] democratic principles or the fundamental rights of citizens ”. In that regard, it pointed out that, by law, political parties were liable to be declared illegal only on the basis of “ activities ” consisting of serious and repeated conduct. In the instant case, according to the Supreme Court, the calls to violence justifying the restriction of the freedoms of the parties at issue stemmed from a deliberate apportionment of tasks between terrorism and politics, ETA devising “ justification of the need for terrorism as one of the functions” entrusted to Herri Batasuna. 32. Bearing in mind the historical and social context of the fight against terrorism in Spain, the Supreme Court held that the terrorist organisation ETA and its satellite organisation, Koordinadora Abertzale Sozialista ( “KAS ” ), had been directing Herri Batasuna since its creation. To reach that conclusion, it relied on evidence demonstrating the existence of hierarchical links between the three organisations and revealing, in particular, that KAS, as ETA ’ s delegate, had controlled the process of appointing the most senior members of Herri Batasuna and its successors (EH and Batasuna ) and had participated in it. The Supreme Court held that Herri Batasuna had been created in response to ETA ’ s wish to split armed activity and mass activity “ organically and structurally ”, which resulted in “ clear hierarchical submission ” of the parties at issue to the terrorist organisation ETA. In that connection, it referred to a KAS internal document which read as follows : “ KAS ... considers that armed struggle in association with mass struggle and institutional struggle – the latter serving the former – is the key to the advance and triumph of the revolution; mass struggle likewise requires an historical alliance of Popular Unity, the physical manifestation of which is Herri Batasuna. ” 33. As regards the “ operational succession ” held to exist between the three political parties that had been declared illegal, the Supreme Court relied on the fact that the people occupying posts of responsibility within the three organisations – notably their spokesperson, A.O. – and belonging to different parliamentary groups, were the same. It also took account of the existence of premises used by all the parties at issue. As regards links between the applicant parties and the terrorist organisation ETA, it noted that several of their members, in particular their spokesperson, A.O., had been convicted of terrorism- related offences. 34. The Supreme Court held that the evidence set out below, subsequent to the date of entry into force of the LOPP, showed that the applicant political parties were instruments of ETA ’ s terrorist strategy. – On 3 July 2002 Batasuna had refused to appoint representatives to the Basque parliamentary committee responsible for the situation and needs of victims of terrorism, as it considered it to be “political, manipulated and biased”. – On 3 July 2002, reacting to the decision of central investigating judge no. 5 at the Audiencia Nacional by which Batasuna had been declared civilly liable for damage caused by street violence ( kale borroka ), A.O., the spokesperson for that organisation, had exhorted the Basque people to respond “ energetically to this new attack” and had criticised the decision for having provoked a “ serious and anti-democratic situation ”. – On 7 July 2002, during a commemoration of the 1936 battle of Monte Albertia, A.O. had made the following statement : “ We must continue to work and to struggle, either within or outside the law. The reality is that we will not falter because we are at a point in history where the process we have undertaken must be rendered irreversible. ” – On 13 July 2002 the mayor and a Batasuna councillor of the municipality of Lezo had taken part in a demonstration in support of ETA terrorists living in Venezuela. – On 16 July 2002, at a gathering outside the San Sebastian navy command, a Batasuna municipal spokesperson, referred to as J.L., had explained that the purpose of that demonstration was to let the State authorities know “ that they could not move around with impunity in Euskal Herria ”. – On 19 July 2002 J.E.B., Batsuna ’ s spokesperson in the municipality of Vitoria, had stated that Batasuna “ didn ’ t want ETA to stop killing, but did not want Euskal Herria to have recourse to any kind of violence and wanted those who engaged in it to cease to exist”. – At a plenary session of the municipal council on 30 July 2002 Batasuna had refused to condemn the campaign of threats against councillors of the Basque Socialist Party (PSE-EE) in the municipality of Amorebieta. – At a press conference on 2 August 2002 concerning the potential handover to Spain of K.B., an ETA member convicted in France, the mayor and the chairman of the Human Rights Committee of the municipality of Ondarroa, L.A. and A.A., Batasuna members, had declared that they supported K.B. and “ all those who [ were ] in the same situation ”. – Batasuna and its leaders had refused to condemn the Santa Pola attack of 4 August 2002 in which two people had died. In that regard, during a press conference in Pamplona A.O. had described that event as a “ painful consequence ” of the failure to solve the “ political conflict ” in the Basque Country and had accused the Spanish Prime Minister [ then J.M. Aznar] “ of bearing the greatest responsibility” for “ what [had happened] [at] that time and what [ might ] happen in future ”. – Municipalities run by Batasuna and that party ’ s website had used an anagram of “ Gestoras Pro- Amnistía ”, an organisation that had been declared illegal by central investigating judge no. 5 at the Audiencia Nacional and was on the European list of terrorist organisations ( Council Common Position 2001/931/PESC). – At a demonstration organised by Batasuna in San Sebastian on 11 August 2002 and run by Batasuna ’ s leaders A.O., J.P. and J.A., slogans supporting ETA prisoners and threatening expressions such as “ borroka da bide bakarra ” ( the struggle is the only way ), “ zuek faxistak zarete terroristak ” ( you, the Fascists, are the real terrorists ) or “ gora ETA militarra ” ( long live ETA military ) had been used. – On 12 and 14 August 2002, Batasuna -run town halls had put up placards on their facades supporting terrorism or those engaging in terrorism, alluding to the transfer of “ Basque prisoners to the Basque Country ” and showing photographs of several terrorists. – At a Batasuna press conference held in Bilbao on 21 August 2002, A.O. had criticised the “ Spanish State ’ s genocide strategy ” and proclaimed that the Basque people were going to “ organise themselves ” and “ fight ” so that some “ little Spanish Fascist ” could never again tell Basques what their institutions should be. He had also warned the government of the Autonomous Community of the Basque Country ( nationalist government coalition ) that if it took part in closing down Batasuna headquarters, the result would be “ an unwanted scenario ”, expressions which had been interpreted the following day by the media as “ a threat against the Basque executive ”. – During an interview with the newspaper Egunkaria on 23 August 2002, J.U., Batasuna ’ s representative in the Basque parliament, had stated that “ ETA [ did ] not support armed struggle for the fun of it, but that [ it was ] an organisation conscious of the need to use every means possible to confront the State”. – On 23 August 2002 at a Batasuna meeting held in Bilbao following the demonstration organised by that party against its dissolution, J.P. had criticised the leaders of the Basque Nationalist Party for abiding by Spanish law, accusing them of lacking “ national dignity ”. He had also encouraged the participants to “ go out into the street and respond vigorously ”. – Municipalities governed by the parties in question had advocated terrorist activities, as evidenced by the fact that two ETA terrorists had been made honorary citizens ( hijo predilecto ) by the municipalities of Legazpia and Zaldibia. – Since 29 June 2002 Batasuna council representatives in Vitoria and Lasarte-Oria had been committing acts of harassment against the representatives of non- nationalist parties, thus contributing to a climate of civil confrontation. – Municipalities governed by Batasuna had displayed sketches and placards calling for a struggle against the State, against representatives of State power, against other political parties or members of those parties, notably the Prime Minister of the Spanish government and the leaders of the Partido Popular and the Spanish Socialist Party. – After the entry into force of the LOPP, the three parties at issue had continued to pursue the same strategy of complementing, on a political level, the actions of the terrorist organisation ETA in the context of a jointly organised “ operational succession ”. 35. Relying on the above evidence, the Supreme Court held that the activity of the applicant political parties, as manifested through conduct in line with a strategy predefined by the terrorist organisation ETA, consisted of “ providing assistance and political support to the actions of terrorist organisations with the aim of overthrowing the constitutional order or seriously disturbing the public peace ”, within the meaning of section 9 ( 2 ) ( c) of the LOPP. It concluded that the conduct of which the applicant parties had been accused corresponded to the cases referred to in sub-paragraphs ( a), ( b), ( d), ( f) and ( h) of paragraph 3 of section 9 of that Law. It stated firstly that some of the conduct described, such as Batasuna ’ s demonstration in San Sebastian, where pro-ETA slogans had been heard, could be characterised as explicit political support for terrorism, while other conduct, such as the refusal of Batasuna and its leaders to condemn the Santa Pola attack of 4 August 2002, sought to “ justify terrorist actions and minimise their importance and the violation of the fundamental rights arising therefrom ”. In that connection, the Supreme Court stated : “ In the constitutional context, the existence of political parties which, from an intellectual point of view, fail to take a clear and unequivocal stance against terrorist activities or which, with calculated ambiguity, systematically seek to conceal the fact that they do not disavow criminal acts by officially deploring the consequences thereof without, however, censuring in any way the barbaric behaviour of those who cause such acts through the use of violence to achieve their objectives, cannot be tolerated. ... For the purposes of these proceedings, the repeated strategic and systematic silence of a political party concerning terrorist activities can only be interpreted, from a political and constitutional viewpoint, as a clear sign of their ‘ acceptance by omission ’ or ‘ implicit acceptance ’, that is, as their alignment with the arguments of the perpetrators of those criminal actions and the tacit acceptance of violence as a means of achieving set objectives which, in our constitutional system, can only be achieved by peaceful means. ” 36. The court held, secondly, that other conduct of which the applicant parties had been accused, such as the harassment of representatives of non-nationalist parties in the municipalities of Vitoria and Lasarte -Oria, had contributed to the emergence of a climate of civil confrontation intended to intimidate opponents of terrorism and deprive them of their freedom of opinion. 37. It observed, thirdly, that conduct such as publicly describing ETA prisoners as political prisoners or using the anagram of “ Gestoras Pro- Amnistía ” proved that the parties at issue were using symbols reflecting terrorism or violence. It noted, lastly, that the applicant parties had also taken part in activities in praise of terrorist activities. 38. Turning to the need for and the proportionality of the dissolution of the applicant parties, the Supreme Court pointed out that it was taking account of the text of the Convention and of the Court ’ s case-law, which would serve as a guide in the interpretation of fundamental constitutional rights, in accordance with Article 10 § 2 of the Spanish Constitution. It considered that, in view of the applicant parties ’ frequent calls to violence, as established by the above-mentioned evidence, the measure to dissolve the applicant parties had been justified for the purposes of protecting the fundamental rights of others, “ a necessary element of democracy ”. The Supreme Court referred in particular to the Court ’ s judgment in Refah Partisi ( the Welfare Party) and Others v. Turkey ( [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003 ‑ II), considering that that judgment imposed on parties claiming to exercise functions in a democratic society a real legal duty to distance themselves from any ambiguous or unclear messages as to the use of violence ( ibid. , § 131). It pointed out furthermore that the calls to violence at issue in the case before it appeared to be more explicit than those at issue in the case submitted to the Court. 4. Amparo appeal to the Constitutional Court 39. Batasuna and Herri Batasuna lodged two amparo appeals with the Constitutional Court against the judgment of the Supreme Court. 40. In their appeals, they complained firstly of the lack of impartiality of the President of the Supreme Court, who had been the reporting judge in the proceedings leading to their dissolution even though he was the president of the Judicial Council, the body which had issued a favourable report on the bill resulting in the Law at issue. They submitted that the conflation of jurisdictional and consultative functions in one person had resulted in a loss of objective impartiality. Batasuna relied in that regard on Article 24 § 2 of the Constitution ( right to a fair hearing before an independent and impartial tribunal ). 41. Secondly, the applicant parties alleged that the guarantees of a fair trial had not been rigorously observed in so far as the dissolution of Batasuna had been based, inter alia, on the conduct attributed to certain Zaldibia and Legazpia municipal councillors, who had made an alleged member of ETA and an ETA member who had been convicted and had served his sentence honorary citizens ( hijo predilecto ), facts which had been established ex parte, after completion of the phase of the proceedings during which new evidence could be introduced and without the applicant parties having been able to defend themselves against such allegations. 42. They complained, thirdly, of a violation of the presumption of innocence, submitting that the facts deemed to have been proven in the judgment of the Supreme Court had been based on a single press release and that Batasuna and its members had been deemed to have carried out acts attributable to another political organisation, namely EH. Moreover, they criticised the judgment of 27 March 2003 for having considered as established fact that Batasuna had been created on the basis of an agreement between the leaders of Herri Batasuna and ETA, and that Herri Batasuna, EH and Batasuna were in fact one and the same organisation which had been assigned certain functions by ETA and which acted under the instructions of the latter, while those allegations had actually been based on documents having no probative value and on the statements of expert witnesses working for the Spanish government. 43. Fourthly, and lastly, the applicant parties considered that their right to freedom of expression, thought and association had been breached as a result of their dissolution. 44. By two unanimous judgments of 16 January 2004 the Constitutional Court dismissed the appeals. 45. In the judgment on Batasuna ’ s amparo appeal, the Constitutional Court repeated the arguments contradicting the applicant parties ’ submissions concerning “ militant democracy ” set out in its judgment of 12 March 2003. It pointed out that “ any project or objective [was] constitutional provided that it [was] not pursued by means of activities which breach [ ed ] democratic principles or the fundamental rights of citizens ”. It also pointed out that “ the constitutionality of section 9 of the LOPP ha [d] been recognised by judgment 48/2003 ” and that “ the answers to the objections raised by Batasuna as to the constitutionality [of the conduct described by the provisions of the Law at issue] could be found in the legal bases of that Law ”. 46. The Constitutional Court stated : “ The refusal of a political party to condemn terrorist attacks can be seen, in certain cases, as ‘ [ ... ] tacit political support for terrorism ’ [ section 9 ( 3 )( a) LOPP], or ‘ legitimising terrorist actions for political ends ’ [ section 9 ( 3 )( a) LOPP], in so far as it may excuse terrorism or minimise the significance thereof ... The failure to condemn terrorist actions also constitutes a tacit or implicit manifestation of a certain attitude towards terror. ... Against a backdrop of terrorism that has been in place for over thirty years, with those responsible always legitimising terror by claiming equality between the types of forces fighting each other and by presenting it as the only possible solution to an allegedly historical conflict, the refusal of a party to condemn a specific terrorist attack, which undeniably reflects that party ’ s wish to disassociate itself from the condemnatory stance taken by other parties in relation to such acts, is all the more significant since it reflects the position of a party which has sought to pass off the terrorist phenomenon as an inevitable reaction to the past and unjust aggression of a terrorised State. ... Furthermore, ... the refusal to condemn [ terrorist acts ], combined with serious and repeated acts and conduct, indicates an accommodation with terror which runs counter to organised coexistence in the context of a democratic State. ... It must therefore be concluded that it would not appear to be unreasonable or erroneous to take account of facts judicially established in proceedings having observed all the guarantees covering the grounds for dissolution laid down by the LOPP – whose unconstitutionality in abstracto was ruled out by Constitutional Court judgment no. 48/2003 – thus ruling out any possibility of a breach of Article 24 of the Constitution, and that no substantive fundamental right, such as the right of political association ( Articles 22 and 6 of the Constitution), the right to freedom of conscience ( Article 16 § 1 of the Constitution) and the right to freedom of expression ( Article 20 § 1 ( a) of the Constitution) has been breached .” 47. Lastly, in the reasoning of its judgment the Constitutional Court pointed out that in its appeal, Batasuna had literally alleged that the effect of the LOPP “ had been to deprive ideologies linked to terrorism and violence of any possibility of developing lawfully, in breach of the procedural definition of democracy”, and had argued that the Law at issue declared unlawful “the mere fact of providing political and ideological support to the actions of terrorist organisations with the aim of overthrowing the constitutional order ”. It held that this “ link with terrorism and violence ” ... “ fell outside the constitutionally legitimate scope of the exercise of freedom of association and freedom of expression and could therefore be prohibited by the democratic legislature”. 48. As regards Herri Batasuna ’ s amparo appeal, the Constitutional Court again referred to its judgment of 12 March 2003, in which it had indicated that the various causes of dissolution of parties could only be taken into account as of the entry into force of the Law, stating, however, that “ for the purpose of determining the significance [ of the activities listed by the Law ] and assessing their importance having regard to the overall conduct of the party at issue ( and for such purposes only, since to take account of conduct prior to the entry into force of the Law in order to justify a declaration of illegality [ would have been ] unconstitutional in that it [ would have ] breached the principle of non- retrospectivity enshrined in Article 9 § 3 of the Constitution), it [ was ] perfectly possible to take into consideration what the Law called the ‘ trajectory ’ ( section 9 ( 4 ) ) of the party at issue which could encompass conduct prior to the entry into force of the Law, without it being possible in any circumstances to consider that to be a case of retrospective application prohibited by the Constitution ”. The Constitutional Court pointed out that the applicant party had not been dissolved because of acts pre-dating the entry into force of the Law or conduct attributable to other parties, but because it had been held that Batasuna, Herri Batasuna and EH “ constituted ‘ successive units ’ of a single reality – namely a political organisation used as a tool by a terrorist group for unlawful purposes –, that the successive forms assumed by a single political party had de facto been dissolved, and that the dissolution pronounced by the Supreme Court had been based on subsequent facts stated as being entirely attributable to the applicant party on account of the fact that the Supreme Court had found the three dissolved parties to be materially identical ”. 49. Lastly, the Supreme Court dismissed the complaints of lack of impartiality and failure to comply with the principle of adversarial proceedings as lacking any constitutional basis. 5. Subsequent events 50. On 6 June 2007 ETA ended the ceasefire that it had declared on 24 March 2006. Since that date, several fatal attacks have been carried out in Spain. | This case concerned the dissolution of the political parties “Herri Batasuna” and “Batasuna”. The applicants complained that an organic law on political parties enacted by the Spanish Parliament in 2002 was not accessible or foreseeable, was applied retrospectively and had no legitimate aim; they also considered that the measure imposed on them could not be considered necessary in a democratic society and compatible with the principle of proportionality. The Court held that the applicants’ projects had been in contradiction with the concept of “a democratic society” and had entailed a considerable threat to Spanish democracy. |
441 | Medical assistance for prisoners with a physical illness | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1948 in the Lerik Region, Azerbaijan, and currently lives in The Hague, the Netherlands. A. Arrest, conviction and commutation of the sentence 7. Until 1988 the applicant was the deputy director of a transport warehouse in the city of Lenkoran, Azerbaijan. In 1988 he joined a political party and began his political career. When the Armenian-Azerbaijani conflict in Nagorno-Karabakh broke out, he joined the national army and became one of its commanders. In the summer of 1993, at the time of the outbreak of a civil and political confrontation in the country, he returned from Nagorno ‑ Karabakh to his native Lenkoran. 8. In June 1993 the applicant put forward a proposal for an autonomous political formation in the south of Azerbaijan which would, in addition to Lenkoran itself, incorporate several adjacent regions. The central authorities considered this idea unacceptable. On 7 August 1993 the applicant, together with his supporters, proclaimed the creation of the so-called “ Talysh-Mugan Autonomous Republic ” (“ Talış-Muğan Muxtar Respublikası ” ) within the Republic of Azerbaijan. The applicant was elected its “President”. At the same time, he attempted to take charge of the military units located in Lenkoran, as well as to depose and arrest some regional public officials appointed by the central authorities. Following this, certain public disorder evolved, during which several people were killed. 9. At the end of 1993, the applicant was arrested and detained in the detention centre of the Ministry of National Security. The investigation against him led to accusations of, inter alia, high treason and use of armed forces against the constitutional institutions of the State. 10. In September 1994 the applicant, along with three other detainees, absconded from the detention centre. The applicant went into hiding until August 1995 when he was finally caught and arrested for the second time. 11. According to the applicant, at all times while in pre-trial detention, he was subjected to various forms of ill- treatment. He was not allowed to see a doctor. Under the threat of his wife's arrest and criminal prosecution, he was compelled to give self-incriminating testimony. His close friends and relatives, including his wife and son, were also subjected to persecution and physical ill-treatment by the authorities. Fearing further persecution, his wife and son left the country and sought asylum in the Netherlands. 12. The applicant's criminal case was examined by the Military Chamber of the Supreme Court ( Ali Məhkəmənin Hərbi Kollegiyası ) sitting in first instance. He was tried together with six other accused persons. On 12 February 1996 the applicant was convicted of high treason ( twelve years'imprisonment with confiscation of property), misappropriation of official power ( two years'imprisonment), illegal deprivation of liberty ( three years'imprisonment), unauthorised possession of weapons ( five years'imprisonment), absconding from custody ( two years'imprisonment), and creation of illegal armed units (death penalty with confiscation of property). By way of a merger of sentences, the applicant was sentenced to death and confiscation of property. Being a decision of the highest tribunal, this judgment was final and was not subject to appeal at the material time. 13. Following the conviction, in June 1996 the applicant was transferred to the 5 th Corpus of Bayil Prison designated for convicts sentenced to death. Despite the existence of the death penalty as a form of punishment under the criminal law applicable at that time, the Azerbaijani authorities had pursued a de facto policy of moratorium on the execution of the death penalty since June 1993 until the abolition of the death penalty in 1998. 14. On 10 February 1998 Parliament adopted the Law on Amendments to the Criminal Code, Code of Criminal Procedure and Correctional-Labour Code of the Republic of Azerbaijan in Connection with the Abolition of the Death Penalty in the Republic of Azerbaijan, which amended all the relevant domestic legal provisions, replacing the death penalty with life imprisonment. The penalties of all the convicts sentenced to death, including the applicant, were to be automatically commuted to life imprisonment. 15. Despite this new penalty, the applicant was kept in the 5 th Corpus of Bayil Prison (the former “death row”) up to January 2001. According to the applicant, the conditions of imprisonment in the Bayil Prison were harsh and inhuman, and beatings frequently occurred. He suffered from various serious diseases and could not get necessary and adequate medical treatment (see section C. below ). In January 2001 he was transferred to the Gobustan High Security Prison ( Qobustan Qapalı Həbsxanası; hereinafter “ Gobustan Prison”) for prisoners serving life sentences. B. Re-examination of the criminal case by the appellate and cassation courts 16. In 2000 a new Code of Criminal Procedure (hereinafter “ CCrP ”) and new Criminal Code of the Republic of Azerbaijan were adopted. Before the new CCrP's entry into force on 1 September 2000, on 14 July 2000 Parliament passed a transitional law allowing the lodging of an appeal under the new CCrP against the final judgments delivered in accordance with the old criminal procedure rules. 17. Shortly after this, at the time of Azerbaijan's admission to the Council of Europe, the applicant was recognised as a “political prisoner” by independent experts of the Secretary General (in the experts'relevant reports the applicant's name was spelled as “ Alikram Gumbatov ”, possibly following the Russian transliteration of his name). Azerbaijan has made a commitment to either release or give a re-trial to all persons identified as “political prisoners” by these experts. 18. Following the reform of the domestic criminal and criminal procedure law in 2000 and in the light of Azerbaijan's undertaking before the Council of Europe to review the cases of “political prisoners”, on 20 December 2001 the Prosecutor General filed an appellate protest ( apellyasiya protesti ) with the Court of Appeal, requesting the court to allow the re-examination of the applicant's case. On 24 January 2002 the Court of Appeal upheld this request and allowed an appeal to be lodged against the Supreme Court's judgment of 12 February 1996. 19. On 29 January 2002 the applicant lodged his appellate complaint with the Court of Appeal. He asked the court to initiate a new investigation into the case, to hold a public hearing in an ordinary courtroom with the participation of media representatives and officials of foreign organisations, to obtain the attendance and examination of certain witnesses, and to evaluate the political events in the Lenkoran region in 1993. On 23 April 2002 the Court of Appeal decided to grant the applicant's requests for a new investigation and a public hearing, but dismissed the remaining requests. 20. The hearings on the merits were to be held at the detention centre of the Ministry of Justice. However, on 13 May 2002 the Court of Appeal changed the location of the hearings to Gobustan Prison since, as explained by the court, repair works were being carried out in the Ministry's detention centre. The applicant protested against this decision by refusing to attend any court hearings held in Gobustan Prison. On 14 May 2002 the Court of Appeal ordered his compulsory attendance. 21. The Court of Appeal's hearings on the merits took place in Gobustan Prison, which was equipped with a courtroom with a separate deliberation room, the total surface area of which was 150 square metres. According to the Government, this courtroom contained about 50 seats for observers. 22. The parties were in disagreement about the actual distance between Gobustan Prison and Baku (45 kilometres according to the Government and 75 kilometres according to the applicant). No regular public transportation from Baku to the prison was available. Because of the prison's strict access regime, persons wishing to attend the hearings as observers had to ask the presiding judge for permission to attend the hearing. The presiding judge, in turn, applied to the prison authorities with a request to grant such persons access to the prison. Observers who were granted access to the hearings were subject to a body search before entering the prison's courtroom. 23. The Court of Appeal held more than twenty hearings and examined testimonies from more than 60 witnesses, of which the statements of six persons, given during the first-instance trial, were read out during the hearings. 24. In the course of the appellate proceedings, the applicant submitted a number of petitions in which he, inter alia, challenged the impartiality of the court, requested that the court permit audio and video recording of the hearings, that the hearings be held in public and away from the high security prison, and that testimonies of additional witnesses and other additional evidence be admitted. The majority of these petitions were rejected by the Court of Appeal. 25. On 10 July 2003 the Court of Appeal delivered its final judgment concerning the applicant's criminal case. The Court of Appeal revoked the previous judgment of 12 February 1996 in its part concerning the confiscation of the applicant's property. The Court of Appeal, however, upheld the applicant's conviction and sentenced him to life imprisonment, pursuant to the criminal law applicable at the time the crimes were committed, but subject to the amendments introduced by the Law of 10 February 1998. 26. The applicant lodged an appeal in cassation with the Supreme Court. In his appeal, he complained, inter alia, that the Court of Appeal had breached material and procedural rules of domestic law, that the trial held in Gobustan Prison had not been public and fair, and that the life ‑ imprisonment sentence had been unlawful. 27. By a decision of 5 February 2004, the Supreme Court rejected the applicant's cassation appeal. The court retained the penalty of life imprisonment, but partly modified the Court of Appeal's judgment by re ‑ qualifying the underlying offence under Article 279. 3 of the new Criminal Code of 2000, instead of applying the old Criminal Code of 1960 as amended by the Law of 10 February 1998. As to the applicant's complaint concerning the alleged lack of publicity of the appellate proceedings, the Supreme Court found that this complaint was unsubstantiated, as all necessary measures had been taken to ensure the possibility for independent observers to attend the trial. C. Medical treatment during imprisonment 1. The applicant's health record in prison 28. The following account has been drawn up from the medical records submitted by the Government, inasmuch as the information contained therein was discernible. (a) Before 15 April 2002 29. After his arrest in August 1995, the applicant was detained in the temporary detention facility of the Baku City Police Office until 7 November 1995. No medical examinations were carried out on him during this time. 30. On 7 November 1995 he was transferred to Investigative Isolator No. 1 and detained there until 28 December 1995. On 8 November 1995 he was examined by a physician who noted that the applicant did not have tuberculosis and that no injuries could be observed on his person. The applicant also informed the physician that he had had two heart attacks in 1992. 31. From 28 December 1995 to 3 June 1996 the applicant was held in the detention facility of the Ministry of National Security. It appears that, during this period, he requested to see a physician several times and complained about heartaches, chest pains and worsening of eyesight. However, no serious diseases were diagnosed. 32. According to the applicant, in the Bayil Prison, where he was imprisoned from June 1996 to January 2001, he was at various periods held in one cell together with five other prisoners whose names were Ismail Bashirov (or Behbudov ), Akif Gasimov, Hafiz Hajiyev, Azad Guliyev and Surgay. These persons were already seriously ill with tuberculosis and have all died since then. 33. Throughout 2006 the applicant complained several times of chest pains. In February-March 1997 the applicant was examined several times by a prison doctor and diagnosed with several ailments such as stenocardia, diffuse bronchitis and asthenia. He was 175 centimetres tall and weighed 55 kilograms around that time. 34. On 22 April 1997 the prison doctors diagnosed the applicant with pulmonary tuberculosis. On 23 April 1997 he underwent an X-ray examination which confirmed the diagnosis of “focal tuberculosis of the left lungs”. He was prescribed various medicines, including streptomycin, rifampicin, haemodez, multivitamins and vitamin B. A subsequent medical examination carried out on 15 April 1998 revealed that the disease was still active. On 7 September 1998 it was observed that the disease went into remission. 35. On 19 May 1999 the applicant was diagnosed with “tuberculosis in the remission phase” and prescribed isoniazid, rifampicin and multivitamins. On 7 September 1999 he was prescribed streptomycin and rifampicin. 36. In February 2000 the applicant was visited by representatives of the Helsinki Citizens Assembly who expressed their concern about the applicant's state of health and requested the authorities to take necessary measures. After this, on 16 March 2000, another medical examination by the prison doctors revealed the reactivation of tuberculosis and the necessity of in-patient treatment for the applicant. On 20 March 2000, the applicant was hospitalised in the Specialised Medical Establishment No. 3 for prisoners suffering from tuberculosis, located in the Bina settlement of Baku. 37. According to the applicant, he was ill-treated by the hospital's doctors and started receiving medical treatment only on 26 March 2000. The treatment was based on the World Health Organisation's DOTS (Directly Observed Treatment, Short-course) programme. The applicant was treated with isoniazid, ethambutol, rifampicin, streptomycin, pyrazinamide and multivitamins. On 18 May 2000 the applicant was judged to be “clinically recovered”, as the symptoms of tuberculosis were found to be mostly resolved. On 19 May 2000 the applicant was checked out of the hospital and returned to his prison cell. The actual duration of the applicant's in-patient treatment in the hospital comprised 49 days. 38. On 27 January 2001, after his transfer to Gobustan Prison, the applicant complained to the prison doctor about breathlessness, headaches, sweating, coughing and chest pains and was prescribed certain medications such as isoniazid, rifampicin and others. On 15 June 2001 the applicant was diagnosed with “focal tuberculosis of the left lungs in the consolidation phase” and streptococcal impetigo (a skin infection) and prescribed with medication treatment for the impetigo. On 16 July 2001 new medications were prescribed and it appears that the skin infection was subsequently cured. 39. On 11 February 2002 the applicant was diagnosed with chronic bronchopneumonia and chronic enterocolitis. (b) After 15 April 2002 40. From 23 April to 3 May 2002 the applicant was on a hunger strike protesting against the alleged unfairness of the proceedings in the Court of Appeal. During this time he was visited by a doctor on a daily basis. 41. On 5 May 2002, following his complaints about pain in his back, he was diagnosed with radiculitis and prescribed treatment with mustard plasters. On 10 May 2002 the applicant was diagnosed with “ neurocirculatory dystonia of hypertonic type” and prescribed captopril, adelphan, papaverin, dibazol and other medication. 42. On 22 May 2002 he was examined by a phthisiatrician and complained about coughing, secretion of large amounts of phlegm, headaches, fever and general weakness. He was diagnosed with acute chronic bronchitis and prescribed kanamycin, biseptol, vitamin B and other medication. 43. On 14 November 2002, while the appellate proceedings were underway, the applicant's lawyer wrote a letter to the President of the Court of Appeal, claiming that the applicant's health condition had deteriorated and asking that a medical examination of the applicant be arranged. On 28 November 2002 the applicant was examined by three prison doctors who noted in their report that they did not establish any deterioration in the applicant's condition. 44. On 3 December 2002, pursuant to the same request, the applicant was examined by several prison doctors with the participation of specialists from the Medical Department of the Chief Directorate for Execution of Court Judgments (“CDECJ”), which at the material time was the subdivision of the Ministry of Justice. The applicant was diagnosed with “focal tuberculosis in the consolidation phase”, atherocardiosclerosis and internal haemorrhoids. The doctors concluded that neither out-patient nor in-patient treatment were required and advised the applicant to go on a diet and take warm sitz baths (a type of bath in which only the hips and buttocks are soaked in water), without specifying the type of diet and frequency of sitz baths. According to the applicant, prisoners had no access to hot water in their cells in Gobustan Prison and were allowed to take a hot shower once a week. 45. On 20 December 2002 the applicant was examined by a prison doctor who deemed his condition satisfactory and considered that there was no necessity for in-patient treatment. 46. On 4 January 2003 the applicant was medically examined following his complaints about general weakness, chest pain and headaches. He was diagnosed with ischemia, atherocardiosclerosis and stenocardia and prescribed several types of medication, including corvalol and aspirin. 47. On 9 February 2003 the applicant complained about pain in the anal area and was diagnosed with haemorrhoids. 48. On 18 February 2003 the applicant's lawyer made another request for a medical examination. This request was repeated on 27 February 2003. By a letter of 6 March 2003, the Head of the Medical Department of CDECJ, Mr K. Dadashov, responded that the applicant had been examined on 5 March 2003, that his condition was satisfactory, that in-patient treatment was not required and that he was receiving adequate symptomatic out ‑ patient treatment. 49. On 3 April 2003 the applicant was diagnosed with hypertension and bronchopneumonia, and prescribed a number of medications. 50. On 11 June 2003 the applicant was examined by an independent physician of the Azerbaijani Cardiology Centre who diagnosed him with hypertension, chronic bronchitis and osteochondrosis and prescribed several types of medication. 51. On 25 December 2003, having examined the applicant's medical records, the Head of the Medical Department of CDECJ, issued a medical report (the “CDECJ Report”), in which he expressed his medical opinion on the applicant's state of health. 52. Most of the CDECJ Report consisted of a detailed summary of the applicant's medical record in prison during the period from April 1997 to December 2003. The report mentioned the medical examinations carried out and the treatment prescribed on each occasion. The CDECJ Report stated that each disease had been treated with due care and, when necessary, the applicant had been provided with proper medication and other appropriate treatment, including the in-patient treatment for tuberculosis. The report suggested that, as a result of such treatment, the applicant's state of health had improved. In conclusion, it was stated that, by the time of issuance of the report, the applicant's state of health was satisfactory and that he needed neither out-patient nor in-patient treatment. 53. Pursuant to another request of the applicant's lawyer to provide urgent medical attention to the applicant, the applicant was examined by the doctors of CDECJ and the Ministry of Health on 10 June 2004. It was observed that he had atherocardiosclerosis, moderate changes in the myocardium, focal tuberculosis in the hardening phase, and residual signs of a craniocerebral trauma. The doctors decided that the applicant's condition was satisfactory and he needed neither in-patient nor out-patient treatment. 2. Independent medical opinion 54. Upon the applicant's request, on 5 March 2004 the Chairman of the Medical Commission of the Azerbaijani National Committee of the Helsinki Citizens'Assembly issued an independent medical expert opinion (the “HCA Opinion”) based on the applicant's medical records. The expert noted that, in general, as a result of irregular and inappropriate medical examinations, the applicant had been given chaotic and insufficiently substantiated diagnoses and that the prescribed out-patient and in-patient medical treatment had been totally ineffective. 55. Specifically, the expert held that the belated initial detection of tuberculosis and imprecise diagnosis had led to the aggravation of the disease. Instead of the necessary etiopathogenetic therapy, the applicant had been given inadequate symptomatic treatment during a period of three to four months before he was finally diagnosed with tuberculosis, resulting in the progressive character of the disease. 56. The treatment given during the period from 1997 to 2000 did not correspond to any standards of active tuberculosis treatment, including the standards for the DOTS programme. As a result, until April 1998, the disease actually progressed and affected larger areas of the applicant's lungs. Although in September 1998 it was noted in the medical records that the disease went into remission, this fact was not clinically confirmed. As a result of such inappropriate treatment, in March 2000 the applicant's condition deteriorated and required hospitalisation. The in-patient treatment did not correspond to the standards of the DOTS programme, as it was shorter than required and the medicines were under-dosed. The necessary continuation phase of the DOTS treatment was not carried out after the applicant was checked out of the hospital. 57. The expert further noted that the treatment subsequent to the applicant's hospitalisation was also inadequate. In particular, after the medical examination of 27 January 2001, he was prescribed certain medicines based solely on his complaints and without a diagnosis. The dosage of medicines and term of treatment were arbitrary. Moreover, it was not realistically possible to follow certain types of prescribed treatment, such as a diet and sitz baths, in the prison conditions. 58. The expert also noted that, because of the applicant's strict imprisonment conditions, he was deprived of the opportunity to receive urgent medical aid during the daily closure of his wing of the Gobustan Prison from 7 :00 p.m. to 11:00 a.m. of the next day. 59. Finally, the expert concluded that, as of the time of issuance of the HCA Opinion on 5 March 2004, due to intermittent arbitrary anti ‑ bacteriological treatment, the tuberculosis was not cured and appeared to acquire a chronic character with interchanging periods of remission and re-activation. The applicant had not received a precise and clinically confirmed diagnosis as well as any necessary and appropriate medical treatment corresponding to such diagnosis. D. Attempts to obtain redress for the alleged lack of adequate medical treatment 60. According to the applicant, as the authorities in Bayil Prison did not allow him to possess any writing material, he was unable to file any written complaints concerning the lack of appropriate medical treatment until he was transferred to Gobustan Prison on 5 January 2001. 61. On an unspecified date in 2001, the applicant made an attempt to file, through a lawyer, a complaint with a first instance court, claiming compensation from the authorities for the damage caused to his health by the allegedly harsh prison conditions and lack of necessary medical treatment. However, according to the applicant, the court refused to accept the complaint without specifying any reason. 62. In February 2004 the applicant filed, with the Sabail District Court, a lawsuit against the Ministry of Internal Affairs, demanding monetary compensation for deterioration of his health in the prison. On 3 March 2004 the Sabail District Court refused to admit the lawsuit, because the applicant failed to designate the Ministry of Finance as a co-defendant. The court noted that, under domestic law, any claim for monetary compensation from the State must be directed against the Ministry of Finance. 63. In March 2004 the applicant filed the lawsuit again, specifically noting the Ministry of Finance as a co-defendant. On 29 March 2004 the Sabail District Court refused to admit the lawsuit for lack of territorial jurisdiction. According to the court, lawsuits against the Ministry of Finance were subject to the territorial jurisdiction of the Nasimi District Court. The applicant challenged this decision in the Court of Appeal. 64. At the same time, he filed a similar lawsuit with the Nasimi District Court. On 13 April 2004 the Nasimi District Court refused to admit the lawsuit on the ground that the applicant had failed to properly formulate and legally substantiate his claim. 65. On 7 May 2004 the Court of Appeal examined the applicant's appeal from the Sabail District Court's decision of 29 March 2004. The Court of Appeal quashed this decision, holding that the Sabail District Court had territorial jurisdiction to examine the case, because one of the co ‑ defendants, the Ministry of Internal Affairs, was located within that court's jurisdiction. Accordingly, the case was remitted to the Sabail District Court for examination on the merits. 66. 20 October 2004, after the applicant's release and emigration (see section E. below), the Sabail District Court fixed the date of examination of the case as 10 November 2004. 67. According to a copy of the Sabail District Court's decision of 10 November 2004 submitted by the Government, the court decided, in accordance with Articles 259.0.7, 263 and 264 of the Code of Criminal Procedure, to “leave without examination” the claim against the Ministries of Finance and Internal Affairs due to failure of both the claimant and the defendants to attend the hearing. The claimant's name was specified as “ Huseynov Alakram Alakbar oglu ”. It appears that the applicant became aware of the existence of this decision for the first time after the Government submitted its copy to the Court. E. Release and emigration 68. On 3 September 2004 the President issued a pardon decree releasing the applicant, among 244 other convicted persons, from serving the remainder of his prison sentence. On the same day, the President issued an instructive order granting the applicant's request to terminate his Azerbaijani citizenship. 69. According to the applicant, he made this “request to terminate his Azerbaijani citizenship” under pressure by the authorities in exchange for his pardon and subsequent release. On 3 September 2004 he wrote a letter to the President in which he withdrew his earlier “requests” of such nature which he claimed to have made under pressure. 70. The applicant was released from the prison only on 5 September 2004. He was immediately taken to the airport, where he boarded a flight to the Netherlands. 71. On 9 September 2004 the applicant applied for a residence permit in the Netherlands and was granted such permit on 20 September 2004. 72. The applicant sought medical treatment in the Netherlands. According to the records submitted, during medical examinations in 2004 and 2005, he complained of pains in the chest, shortness of breath, coughing, headaches, dizziness and concentration disturbances. It appears that, as of June 2006, the applicant still continued to be tested for tuberculosis. | The applicant, who had a number of serious diseases, including tuberculosis, alleged in particular that the Azerbaijani authorities had knowingly and willingly contributed to a serious deterioration in his health by denying him adequate medical treatment in prison. |
335 | Demonstrators | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1939 and lives in Rome. A. Context in which the G8 Summit took place in Genoa 7. The twenty-seventh G8 Summit took place in Genoa on 19, 20 and 21 July 2001 under the chairmanship of Italy. 8. In the run-up to the Summit a large number of non- governmental organisations had set up a coordinating group known as the Genoa Social Forum ( “ GSF ” ) with a view to organising an “ anti -globalisation” Summit in Genoa during the same dates ( see Final Report of the Parliamentary inquiry into the events during the Genoa G8 Summit ( see “ Final Rapport of the Parliamentary Inquiry ” ), pp. 7-18). 9. Since the meeting of the World Trade Organisation in Seattle in November 1999, such demonstrations by the “ anti -globalisation” movement have been organised during inter -State summits and meetings of international institutions on different aspects of global governance. They have sometimes been accompanied by acts of vandalism and clashes with the police ( ibid. ). 10. Law No. 349 of 8 June 2000 (“ Law No. 349/2000 ” ) had assigned the task of organising the preliminary meetings and the Final Summit of the Heads of State and Government scheduled for July 2001 to a plenipotentiary body set up within the Prime Minister ’ s Office. Several meetings were attended by representatives of the GSF, the Head of the plenipotentiary body, the Prefect of Genoa, the Minister of the Interior, the Minister for Foreign Affairs and local authority representatives ( see Final Report of the Parliamentary Inquiry, pp. 18-21). 11. Substantial security measures were put in place by the Italian authorities (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 12, ECHR 2011). Under section 4(1) of Law no. 149 of 8 June 2000, the prefect of Genoa was authorised to deploy military personnel. In addition, the part of the city where the G8 were meeting (the historic centre) was designated as a “red zone” and cordoned off by means of a metal fence. As a result, only residents and persons working in the area were allowed access. Access to the port was prohibited and the airport was closed to traffic. The red zone was contained within a yellow zone, which in turn was surrounded by a white (normal) zone. 12. According to the information garnered by the Genoa police department up to July 2001 (see Final Report of the Parliamentary Inquiry, p. 23), the various groups expected to take part in the demonstrations were broken down into various blocs depending on the danger they posed: the non-dangerous “ Pink Bloc ”; the “ Yellow Bloc ” and the “ Blue Bloc ”, which were deemed to comprise persons likely to vandalise property, set up street and railway blockades and cause confrontations with the police; and lastly, the “ Black Bloc”, which embraced several anarchist groups and more broadly, demonstrators dressed in black and wearing masks and balaclavas who had systematically wreaked havoc during other summits. 13. On 19 July 2001 two demonstrations took place during the day without incident. Disorder occurred during the evening ( see Final Report of the Parliamentary Inquiry, p. 25). 14. On 20 July several demonstrations had been announced for various areas of the city, and rallies were scheduled for specific squares ( “ piazze tematiche ” ) ( see Final Report of the Parliamentary Inquiry, pp. 25-27). 15. On the morning of 20 July the Black Bloc sparked numerous incidents and clashes with law-enforcement officers, and ransacked banks and supermarkets ( see Giuliani and Gaggio, cited above, § 17). Marassi Prison was attacked and a number of police stations were vandalised ( see Giuliani and Gaggio, cited above, § 134, and Final Report of the Parliamentary Inquiry, p. 26 ). 16. The Black Bloc sparked similar incidents while the Tute Bianche, a group broadly belonging to the “ Yellow Bloc ”, were marching along Via Tolemaide. Tear gas was fired on the Tute Bianche demonstrators by carabinieri, who charged forward, making use of their truncheons and non- regulation batons. The demonstrators split up, though some of them responded to the attack by throwing hard objects at the law-enforcement officers; armoured vehicles belonging to the carabinieri drove up at high speed, knocking down the barriers erected by the demonstrators and forcing the demonstrators to leave. Clashes between demonstrators and law-enforcement officers continued in the adjacent areas ( see Giuliani and Gaggio, cited above, §§ 17-20, 126-127 and 136). 17. Similar clashes occurred at around 3 pm in Piazza Manin ( see Final Report of the Parliamentary Inquiry, p. 26). 18. At around 3.20 pm, during a clash in Piazza Alimonda, Carlo Giuliani, a young demonstrator, was hit by a shot fired from a jeep of carabinieri attempting to escape the demonstrators ( see Giuliani and Gaggio, cited above, §§ 21-25). 19. On 21 July the final anti-globalisation demonstration took place, attended by some 100, 000 persons ( see Giuliani and Gaggio, cited above, § 114). 20. The looting and unlawful damage began in the morning and continued all day throughout the city. In the early afternoon the march ran into a group of some one hundred individuals facing the security forces. Further clashes ensured, with the security forces firing tear gas and charging the crowd, also involving the orderly demonstrators ( see Final Report of the Parliamentary Inquiry, pp. 27-28). 21. During the two days of incidents several hundred demonstrators and members of the security forces were injured or suffered from the effects of tear gas. Whole districts of the city of Genoa were laid waste. B. Setting up of special police unites to stop the Black Bloc 22. On the morning of 21 July 2001 the Head of Police ordered Prefect A., Deputy Head of Police and Head of the plenipotentiary body, to assign the task of searching the Paul Klee School to Mr M.G., Head of the CID Central Operational Department ( the “ SCO ” ) ( see judgment no. 1530/2010 of the Genoa Court of Appeal of 18 May 2010 (the “ appeal judgment ” ), p. 194). Some twenty individuals were arrested following that operation, but they were immediately released by order of the prosecution or the investigating judge ( see appeal judgment, p. 196). 23. It transpires from Prefect A. ’ s statements to the Genoa Court that the order issued by the Head of Police was explicable by his desire to move on to a more “ incisive ” phase involving arrests of suspects in order to dispel any impression that the police had remained inert vis-à-vis the looting and unlawful damage perpetrated in the city. The Head of Police had wanted to set up large-scale joint patrols directed by officers from the mobile units and the SCO and coordinated by trusted officers, with a view to stopping the Black Bloc (see judgment no. 4252/08 delivered by the Genoa Court on 13 November 2008 and deposited on 11 February 2009 (the “first-instance judgment”), p. 243; see also judgment no. 38085/12 of the Court of Cassation of 5 July 2012, deposited on 2 October 2012 (the “Court of Cassation judgment”), pp. 121 ‑ 122). 24. At 7.30 pm on 21 July M.G. ordered M.M., Head of the Genoa General Investigations and Special Operations Department (DIGOS) to second officers from his unit in order to from joint patrols with other officers from the Genoa mobile unit and the SCO (see Final Report of the Parliamentary Inquiry, p. 29). C. Events leading up to the police storming of the Diaz ‑ Pertini and Diaz-Pascoli schools 25. The Genoa Municipal Council had provided the GSF and other bodies with access to the premises of two adjacent schools in Via Cesare Battisti in order to install a multimedia centre. In particular, the Diaz-Pascoli School ( “ Pascoli ” ) accommodated a press unit and temporary lawyers ’ offices, while the Diaz-Pertini School housed an Internet access point. Following thunderstorms over the city which had hampered access to some camping sites, the Municipality had authorised the use of the Diaz-Pertini School as a night accommodation centre for demonstrators. 26. On 20 and 21 July, residents in the area reported to the police that young people dressed in black had gone into the Diaz-Pertini School and taken materiel from the site linked to the ongoing works in the school. 27. Early in the evening of 21 July one of the joint patrols proceeded along Via Cesare Battisti, sparking a heated verbal reaction from dozens of persons standing outside the two schools. An empty bottle was thrown at the police vehicles ( see first-instance judgment, pp. 244-249, and Court of Cassation judgment, p. 122). 28. On their return to the police station, the police officers who had headed the patrol recounted the events at a meeting called by the most senior police officials ( including Prefect A., Prefect L.B., Police Commissioner C. and M.G.). 29. Having contacted the GSF official to whom the Diaz-Pertini School had been assigned, the police decided to conduct a search of the premises in order to secure evidence and possibly arrest the Black Bloc members responsible for the unlawful damage. Having discussed and dismissed the idea of bombarding the school with tear gas, they agreed on the following modus operandi : a police unit made up essentially of officers belonging to a division specialising in anti-riot operations who had benefited from ad hoc training ( the VII Nucleo antisommossa operating within the Rome mobile unit ) was to “ secure ” the building; another unit would carry out the search; lastly, a carabinieri unit would surround the building to prevent suspects escaping. The Head of Police was also informed about the operation (see first-instance judgment, pp. 226 and 249-252, and Final Report of the Parliamentary Inquiry, pp. 29-31). 30. Late in the evening a large number of police officers from various units and departments left the Genoa police station for Via Cesare Battisti ( see Final Report of the Parliamentary Inquiry, ibid. ). According to the Court of Cassation judgment, the total number of officers participating in the operation was “ approximately 500 police officers and carabinieri, the latter being responsible exclusively for encircling the building ”. The appeal judgment (p. 204) pointed out that that figure had never been precisely substantiated. D. The police storming of the Diaz-Pertini School 31. At around twelve midnight the members of the VII Nucleo antisommossa, having arrived close to both schools with helmets, shield and tonfa -type truncheons, together with other similarly equipped officers, began to run towards the premises. A journalist and a municipal councillor standing outside the schools were kicked and struck with batons ( see first-instance judgment, pp. 253-261). 32. Some of the persons occupying the Diaz-Pertini School who had been outside re-entered the building and closed the gates and entrance doors, attempting to block them with school benches and wooden planks. The police officers assembled in front of the gate, which they forced open with an armoured vehicle after unsuccessful attempts to shoulder -charge them. Finally, the aforementioned police unit broke down the entrance doors (ibid. ). 33. The officers invested all the floors of the building, many of them in complete darkness. With, in most cases, their faces concealed by scarves, they began to punch, kick and club the occupiers, shouting threats at their victims. Groups of officers even struck seated or prostrate persons. Some of those who had been awakened by the noise were struck while still in their sleeping bags, while others were assaulted while holding their hands up as a sign of capitulation or showing their identity documents. Some of the occupiers attempted to escape and hide in the school toilets or lumber-rooms, but they were caught and beaten up, and some of them were hauled out of their hiding places by the hair ( see first-instance judgment, pp. 263-280, and appeal judgment, pp. 205-212). 34. The applicant, who was sixty-two years of age at the material time, was on the ground floor. Having been awakened by the noise, when the police arrived he sat down against the wall beside a group of persons with his arms in the air ( see first-instance judgment, pp. 263-265 and 313). He was mainly struck on the head, arms and legs, whereby the blows caused multiples fractures : fractures of the right ulna, the right styloid, the right fibula and several ribs. According to the applicant ’ s statement in the Genoa Court, the healthcare staff who arrived at the school after the violence had subsided attended to him last, despite hiss cries for help. 35. The applicant was operated on at the Galliera hospital in Genoa, where he remained for four days, and then a few years later, at the Careggi hospital in Florence. He was granted over forty days ’ unfitness for work. The aforementioned injuries left him with a permanent weakness in his right arm and leg ( see first-instance judgment, pp. XVII and 345). E. The police storming of the Pascoli School 36. Shortly after the storming of the Diaz-Pertini School, a police unit stormed the Pascoli School, where journalists were filming events both outside and inside the Diaz-Pertini School. A radio station was broadcasting the events live. 37. When the police officers arrived the journalists were forced to stop filming and broadcasting. Cassettes containing the reports filmed over the three days of the Summit were seized and the GSF lawyers ’ hard disks were seriously damaged ( see first-instance judgment, pp. 300-310). F. Events after the storming of the Diaz-Pertini and Pascoli schools 38. After the storming of the Diaz-Pertini School the security forces emptied the occupiers ’ rucksacks and other luggage without attempting to identify their owners or to explain the nature of the operation under way. They wrapped some of the items collected in a black flag in the school gymnasium. During that operation, some of the occupiers were taken to the gymnasium and forced to sit or lie down (see first-instance judgment, pp. 285-300). 39. The ninety-three persons occupying the school were arrested and charged with conspiracy to commit unlawful damage and destruction. 40. Most of them were taken to hospitals in the city. Some were immediately transferred to the Bolzaneto barracks. 41. During the night from 21 to 22 July the Head of the Italian police press unit, who was interviewed close to the schools, stated that during the search of the premises the police had found black clothing and balaclavas similar to those used by the Black Bloc. He added that the numerous bloodstains in the building had stemmed from injuries sustained by most of those occupying the Diaz-Pertini School during clashes with the police the previous day ( see first-instance judgment, pp. 170-172). 42. The next day, at the Genoa police station, the police showed the press the items seized during the search, including two Molotov cocktails. They also showed the uniform of an official who had taken part in the storming of the Diaz-Pertini School, displaying a clean cut which might have been caused by a knife (ibid. ). 43. The prosecution against the occupiers on charges of conspiracy to commit unlawful damage and destruction, serious or aggravated résistance to the police and the unlawful carrying of weapons led to the acquittal of all concerned. G. Criminal proceedings against members of the security forces for storming the Diaz-Pertini and Pascoli schools 44. The Genoa public prosecutor ’ s office initiated an investigation to ascertain the facts underlying the decision to storm the Diaz-Pertini School and to shed light on the methodology of the operation, the alleged knife attack on one of the officers and the discovery of the Molotov cocktails, as well as the events that had occurred in the Pascoli School. 45. In December 2004, after some three years of investigations, twenty-eight police officers and officials were committed for trial. Two further sets of proceedings concerning three other officers were subsequently joined to the initial proceedings. 46. The applicant had claimed damages at the preliminary hearing on 3 July 2004. A total number of 119 parties claiming damages, including dozens of Italians and foreigners who had occupied both schools, as well as trade unions and other non- governmental associations, came to a. 47. Those proceedings concerned the events in the Diaz-Pertini School, where the applicant had been accommodated ( see paragraphs 31-34 above ), and the events in the Pascoli School ( see paragraphs 36 and 37 above ). They involved hearing more than 300 individuals, both defendants and witnesses ( including many foreigners ), two expert opinions and the viewing of a great deal of audio- visual materiel. 1. Events in the Diaz-Pertini School 48. The charges relating to the events in the Diaz-Pertini School were as follows : giving false information for inclusion in a document, simple and aggravated slander, misfeasance in public office ( particularly on account of the unlawful arrest of the persons occupying the buildings ), simple and aggravated bodily harm and unlawful carrying of weapons of war. a) Trial at first instance 49. By judgment no. 4252/08 of 13 November 2008, deposited on 11 February 2009, the Genoa Court found twelve of the accused guilty of providing false information ( one accused ), simple slander ( two accused ) and aggravated slander (one accused ), simple and aggravated bodily harm ( ten accused ) and the unlawful carrying of weapons of war ( two accused ). The court sentenced them to between two and four imprisonment, a prohibition of holding public office for the period of the main sentence and, jointly and severally with the Ministry of the Interior, payment of costs and expenses and of damages to the parties claiming the latter, to whom the court awarded advances of between 2, 500 and 50, 000 euros (EUR). The applicant, in particular, was awarded an advance of EUR 35, 000, which was paid in July 2009 following an attachment. 50. In determining the main sentences the court had regard to the mitigating circumstances that the perpetrators of the offences had no criminal records and that they had acted in a state of stress and fatigue. One of the convicted persons was granted a conditional suspension of sentence, whereby the court ordered that the conviction should not appear on his criminal record. Furthermore, pursuant to Law No. 241 of 29 July 2006 laying down the conditions for remission of sentence ( indulto ), ten of the convicted persons were granted total remission of the main sentences, and one of them, who had been given a four-year prison sentence, was granted a three-year remission. 51. In the reasons for the judgment (373 pages of a total of 527), the court first of all rejected the argument that the operation had been planned from the outset as a punitive expedition against the demonstrators. It accepted that the security forces might reasonably have thought, in the light of the events preceding the storming of the buildings (particularly the information provided by local residents and the attack on the patrol during the afternoon of 21 July – see paragraphs 26-27 above), that there were also members of the Black Bloc in the Diaz-Pertini School. It held, however, that the events at issue constituted a clear violation of the law, “ of human dignity and of respect for the individual ” ( di ogni principio di umanità e di rispetto delle persone ). The court considered that even in confronting members of the Black Bloc, the security forces were allowed to force inasmuch as the latter was necessary in order to overcome violent resistance from the persons occupying the buildings, subject to proportionality between the resistance encountered and the means used. According to the court neither the applicant nor, for instance, a slightly built young woman who had also been present could have put up such resistance as to justify the blows which they had received, causing bruising and fractures. 52. The court also emphasised that the prosecution had not requested the committal for trial of the actual perpetrators of the violence on account of the difficulty of identifying them, and that the police had not cooperated effectively. It noted in that connection that the prosecution had been provided with old photographs of the officers accused and that it had taken seven years to identify one particularly violent officer – filmed during the storming of the buildings – even though he had been easily recognisable by his hairstyle. 53. In its assessment of the individual responsibility of the accused, the court held that having regard to the circumstances of the case, the perpetrators had acted in the conviction that their superiors tolerated their acts. The fact that some officers and officials who had been in situ right from the beginning of the operation had not stepped in immediately to halt the violence had encouraged the officers of the VII Nucleo antisommossa and the other members of the security forces in their actions. The Court therefore took the view that only those senior officials could be considered guilty of aiding and abetting the offence of causing bodily harm. 54. The court then considered the prosecution argument that the security forces had produced false evidence and recounted fictitious events with a view to justifying, a posteriori, both the search of the premises and the acts of violence. 55. As regards the behaviour of the persons occupying the buildings before the police stormed them, the court observed that the video recordings added to the case file had not shown them throwing any large objects from the building, but that it might be considered, according to the statements of a witness and the attitude of the police officers, who had been filmed with their shields raised above their heads, that a number of small objects ( coins, bolts, etc. ) had probably been thrown at the officers while they had been attempting to break down the entrance door to the school. 56. As regards the alleged knife attack on an officer, the court, drawing on the results of the expert opinion prepared on that officer ’ s behaviour and the evidence at its disposal, observed that it could neither find that that attack had actually taken place nor preclude the possibility that it had in fact occurred. 57. Moreover, the court noted that the two Molotov cocktails shown to the press on 22 July had been found by the police in the city during the afternoon of 21 July and subsequently brought, at the behest of the Deputy Police Commissioner of Genoa, to the schoolyard towards the end of the search of the premises, and that they had ended up, under obscure circumstances, mingled with the items that had been gathered together in the gymnasium. 58. Finally, the court considered that the police report on the operation contained a misleading description of the facts, because it stated that all those occupying the school had resisted violently and glossed over the fact that most of them had been injured by the security forces. b) The appeal judgment 59. The accused, the prosecutor ’ s office with the Genoa Court, the Principal State Prosecutor, the Ministry of the Interior ( which was civilly liable ) and most of the victims, including the applicant, all appealed to the Genoa Court of Appeal against the first-instance judgment. By judgment no. 1530/10 of 18 May 2010, filed on 31 July 2010, the court of appeal altered the challenged judgment. 60. The Court of Appeal found the accused guilty of the following offences : providing false information (seventeen accused), aggravated bodily harm (nine accused) and the unlawful carrying of weapons of war (one accused). It imposed prison sentences on them of between three years and eight months and five years and prohibited them from holding public office for five years. Pursuant to Law No. 241 of 29 July 2006, all those convicted were given the benefit of a three-year remission of sentence. 61. Since the limitation period for offences of aggravated slander ( in the case of fourteen accused ), abuse of public authority on account of the unlawful arrest of the persons occupying the Diaz-Pertini School ( twelve accused ) and simple bodily harm (nine accused ) had elapsed, the Court of Appeal discontinued proceedings against them. The proceedings against the Head of the VII Nucleo antisommossa, who had been convicted at first instance for causing aggravated bodily harm, were also discontinued on account of mitigating circumstances. Finally, the Court of Appeal acquitted a person accused of simple slander and unlawful carrying of a weapon of war and another person accused of simple slander. 62. Most of the sentences involving payment of damages and costs and expenses as passed at first instance were upheld in substance, and, at the appeal level, the accused persons who had been convicted for the first time were also held civilly liable. 63. In the reasons for the judgment (120 pages of a total of 313), the Court of Appeal firstly pointed out that even if the suspicions concerning weapons used by the Black Bloc members during their looting could, in principle, have justified searching the schools, there was nevertheless scant evidence that all the persons occupying the two schools were armed and could be considered as belonging to the Black Bloc. 64. The Court of Appeal further stated that several factors demonstrated that the operation had in no way been geared to identifying the members of the Black Bloc and had been quite different in nature. 65. First of all, right from the planning stages of the “search” the senior police officials had allegedly specified that the VII Nucleo antisommossa and other heavily armed officers would be in the front line of the security forces; those units had not been given any precise instructions concerning the use of force against those occupying the school, their sole task being to “secure” ( mettere in sicurezza ) the building. 66. Secondly, even those individuals who had been outside the Diaz-Pertini School and had not put up the least resistance had been immediately attacked by the security forces. 67. Thirdly, the security forces had launched their assault by breaking down the doors without attempting to negotiate with the occupiers, explaining that a “ non-violent search ” was to be carried out, or to induce them voluntarily to open the door, which, according to the Court of Appeal, they had justifiably closed. On entry into the building the officers had systematically beaten those inside in a cruel and sadistic manner, inter alia using non- regulation batons. According to the Court of Appeal, the traces of blood to be seen on the photographs taken during the inspection of the premises had been fresh and could only have stemmed from the above-mentioned violence, contrary to the “shameful contention” ( vergognosa tesi ) that they had been the result of injuries sustained during the clashes which had occurred over the previous days. 68. In the light of those factors the Court of Appeal concluded that the aim of the whole operation had been to carry out a large number of arrests, even in the absence of any judicial purpose, the main thing being to remedy a media image of a powerless police force. The most senior officials of the security forces had therefore surrounded the VII Nucleo antisommossa with a heavily armed unit equipped with tonfa -type truncheons capable of dealing lethal blows, and that unit have been exclusively instructed to neutralise the persons occupying the Diaz-Pertini School, stigmatising them as dangerous troublemakers who had caused all the unlawful damage of the previous few days. The violent and coordinated action of all the officers who had participated in the operation had been the logical consequence of the instructions given. 69. Therefore, according to the Court of Appeal, all the most senior officials of the VII Nucleo antisommossa, as a minimum, had been guilty of causing the injuries inflicted on the persons occupying the buildings. As regards the higher-ranking police officers, the Court of Appeal pointed out that the decision not to request their committal for trial had impeded proper assessment of their criminal responsibility. 70. Furthermore, the Court of Appeal held that once the decision to storm the building and make the arrests had been taken, the security forces had attempted to justify their action a posteriori. 71. In that connection the Court of Appeal noted that during the investigation the persons occupying the school had been attributed responsibility for offences which they had not committed : the investigation had in no way shown that the occupiers had resisted the security forces or that they had thrown objects at them while standing in the schoolyard, whereby some of the officers had probably raised their shields merely as a precaution; and above all, having regard to all the circumstances of the case, the alleged knife attack on an officer during the storming of the building had proven to be a “ bare-faced lie ”. 72. The Court of Appeal further noted that the most senior officials in the security forces who were present in situ, had decided to place both the Molotov cocktails that had been found elsewhere during the afternoon among the items collected during the search, with a view to justifying the decision to conduct the search and to arrest the persons occupying the school. The Court of Appel took the view that since the arrests had been devoid of any factual or legal basis, they had been unlawful. 73. In determining the appropriate sentences, the Court of Appeal found that apart from the Head of the VII Nucleo antisommossa, who had attempted to limit the violence and had finally admitted the offences during the proceedings, no mitigating circumstances could be acknowledged in respect of the other accused. Having regard to the applicant ’ s statements, the Court of Appeal pointed out that the members of the security forces had turned into “ violent thugs ” indifferent to any physical vulnerability bound up with sex and age and to any sign of capitulation, even on the part of persons who had just been abruptly awakened by the noise of the attack. Moreover, the officers had compounded the violence with threats and insults. In doing so they had discredited Italy in the eyes of the international community. Moreover, once the violence had been perpetrated, the security forces advanced a whole series of fabricated “facts” implicating the occupiers. In the Court of Appeal ’ s opinion, the systematic and coordinated nature of the act of violence committed by the police officers and the aforementioned attempts to justify them a posteriori constituted a deliberate, concerted effort rather than a state of stress and fatigue. 74. Nevertheless, having regard to the fact the whole impugned operation had originated in the instruction from the Head of Police to carry out arrests and that the accused had therefore clearly acted under the psychological pressure of that instruction, the Court of Appeal determined the sentences on the basis of the minimum penalty laid down in criminal law for each of the offences in question. c) Court of Cassation Judgment 75. The accused, the State Prosecutor with the Genoa Court of Appeal, the Ministry of the Interior (which was civilly liable) and some of the victims, appealed on points of law against the appeal judgment; the applicant and other victims claimed civil damages in those proceedings. 76. By judgment no. 38085/12 of 5 July 2012, deposited on 2 October 2012, the Court of Cassation essentially upheld the impugned judgment, although it declared the offence of aggravated bodily harm for which ten of the accused had been convicted at first instance and nine at second instance ( see paragraphs 49 and 60 above ). 77. In its grounds of judgment (71 pages of a total of 186), the Court of Cassation first of all examined the objection as to the constitutionality of Article 157 of the Criminal Code on statute - barring of criminal offences as submitted by the State Prosecutor under Article 3 of the Convention and, secondarily, under Article 117 § 1 of the Constitution. It observed that – as the first- and second-instance decisions had noted, in a finding which had never in fact been contested – “ the violence perpetrated by the police during their storming of the Diaz-Pertini school [ had been ] egregious ”. The “ utmost gravity ” of the police conduct stemmed from the fact that the widespread violent acts committed throughout the school premises had been unleashed against individuals who were obviously unarmed, sleeping or sitting with their hands up; it was therefore a case of “ unjustified violence [which], as rightly pointed out by the State Prosecutor, [ was carried out ] for punitive purposes, for retribution, geared to causing humiliation and physical and mental suffering on the part of the victims ”. According to the Court of Cassation, the violence might have qualified as “ torture ” under the terms of the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment or else as “inhuman or degrading treatment” under Article 3 of the Convention. 78. The Court of Cassation noted that in the absence of an explicit criminal offence within the Italian legal system, the impugned violent acts had been prosecuted on the basis of simple or aggravated bodily harm, which offences, pursuant to Article 157 of the Criminal Code, had been the subject of a discontinuance decision on the ground that the limitation period had expired during the proceedings. It noted that that had been why the State Prosecutor had complained of the contradiction between the regulations on the statute-barring of the criminal offences laid down in Article 157 of the Criminal Code – inasmuch as that provision did not include ill-treatment within the meaning of Article 3 of the Convention among the offences not subject to limitation – and in Article 3 of the Convention, which, in accordance with the Court ’ s well-established case-law, required the imposition of appropriate penalties on ill-treatment and therefore impeded the limitation of offences or criminal proceedings in cases of ill-treatment. Nevertheless, the Court of Cassation considered that a change in the rules on limitation as envisaged by the State Prosecutor lay outside the jurisdiction of the Constitutional Court because, under Article 25 of the Italian Constitution, only the law could establish offence and criminal penalties. 79. As regards the convictions for offence of bodily harm, the Court of Cassation, having reiterated the events preceding the impugned police storming of the school ( see paragraphs 25-30 above ), considered logical the Court of Appeal ’ s finding that the instruction from the Head of Police to carry out arrests had, right from the outset, “ militarised ” the search operation which the police was to conduct in the school. The Court of Cassation held that the very large number of officers and the lack of instructions regarding alternatives to a tear- gas assault on the school ( see paragraph 29 above ) and regarding the use of force against the occupiers, among other factors, showed that that operation had not been designed as a peaceful search of the premises. The operational methods used had caused virtually all the persons occupying the school to be beaten up, which explained the Court of Cassation ’ s upholding of the responsibility, inter alia, of the officials heading the VII Nucleo antisommossa. First of all, the latter had given no instructions on how the building was to be “ secured ” and had at no stage informed the officers of the possible presence of harmless individuals; secondly, they had not prevented the attacks on persons standing outside the building, the violent storming of the school and the assault on the persons occupying the premises. In conclusion, as the Court of Appeal had rightly found, those officials had been aware that violence was inherent in that type of operation. The Court of Cassation noted, however, that even the offences of aggravated bodily harm had become statute-barred on 3 August 2010 by dint of scheduling, the calculation criteria and the interruptions of proceedings provided for in Articles 157 et seq. of the Criminal Code as amended by Law No. 251 of 5 December 2005. 80. The Court of Cassation also upheld the findings of the appeal judgment as regards the offences of providing false information, slander and unlawful carrying of weapons of war perpetrated in the framework of a “ disgraceful whitewashing operation ” in order to justify a posteriori the violence perpetrated in the school and the arrest of those occupying it. The Court of Cassation noted that the persons occupying the school had not put up any résistance either before the entrance door had been broken down or inside the premises, and also that the occupiers had not been in possession of Molotov cocktails, which had been brought into the school from the outside by the police. Therefore, the Court of Cassation declared mendacious the police reports to the contrary and slanderous the conspiracy charges levelled against the occupiers. As regards the conclusions of the appeal judgment concerning the alleged knife attack on an officer, the Court of Cassation merely specified the sentence passed on two officers convicted of providing this false information (three years and five months, as indicated in the reasons given for the appeal judgment, rather than three years and eight months as indicated in the operative part ). Finally, it passed a sentence of three years and three months on one of the convicted officers for providing false information, on account of the limitation on the offence of aggravated bodily harm and the resultant inapplicability of the calculation criterion laid down in Article 81 of the Criminal Code because of the continuous nature of the offences. 2. Events in the Pascoli School 81. The charges levelled against officers for the events in the Pascoli School concerned arbitrary search and damage to property. 82. By judgment no. 4252/08 ( see paragraph 49 above ), the Genoa Court held that the storming by the police officers of the Pascoli School had been the result of a mistake in identifying the building to be searched. It also found that no clear evidence had been provided to conclude that the accused had actually caused the damage complained of in the Pascoli School. 83. On the other hand, by judgment no. 1530/10 ( see paragraph 59 above ), the Genoa Court of Appeal found that there had been no mistake or misunderstanding behind the police storming of the Pascoli School. According to the Court of Appeal, the security forces had tried to destroy all film evidence of the storming of the neighbouring Diaz-Pertini School and had deliberately damaged the lawyers ’ computers. It nevertheless decided to discontinue proceedings against the police officer charged because the impugned offences had become statute-barred. 84. By judgment no. 38085/12 ( see paragraph 76 above ) the Court of Cassation upheld that decision. It emphasised that the Court of Appeal had fully justified its conclusions by noting that the police had carried out an arbitrary search of the Pascoli School geared to seeking out and destroying audio-visual material and all other documentation concerning the events in the Diaz-Pertini School. H. Parliamentary Inquiry 85. On 2 August 2001 the Presidents of the Chamber of Deputies and the Senate decided to order an inquiry ( indagine conoscitiva ) into the events during the Genoa G8 Summit by the Constitutional Affairs Committees of both chambers of Parliament. For that purpose it set up a commission comprising eighteen Deputes and eighteen Senators. 86. On 20 September 2001 the commission submitted a report setting out the conclusions of the majority of its members, entitled “ Final Report of the Parliamentary Inquiry into the events during the Genoa G8 Summit ”. According to the Report the search of the Diaz-Pertini School “could probably be seen as the most significant example of the organisational shortcomings and operational dysfunctions ”. | The twenty-seventh G8 summit took place in Genoa in July 2001. A number of NGOs organised an alternative anti-globalisation summit in the city at the same time. The case concerned events which occurred at the end of the G8 summit, in a school made available by the municipal authorities to be used as a night shelter by “authorised” demonstrators. An anti-riot police unit entered the building around midnight to carry out a search. When the police arrived, the applicant, then aged 62 and who was inside the school, was sitting with his back to the wall with his arms raised. He was struck several times, causing multiple fractures. The applicant complained that he was the victim of violence and ill-treatment, which in his submission amounted to torture, when the police raided the school. |
82 | Parental authority, child custody and access rights | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1976 and lives in Białystok. A. Background facts 6. The applicant is deaf and mute. He uses sign language to communicate with other people. 7. The applicant and A.N. married on 20 August 2005. A.N. suffers from a hearing impairment and has had a hearing implant fitted. She communicates both orally and through sign language. 8. The son (S.N.) of the applicant and A.N. was born on 10 December 2006. He also suffers from a hearing impairment. In February 2007 the applicant and his wife separated. On 11 June 2007 A.N. filed a petition for divorce. 9. In the course of the divorce proceedings, on 19 July 2007 the Białystok Regional Court issued an interim decision on the applicant ’ s contact with his son. Under that decision, the applicant could visit his son every Tuesday and Thursday between 4 p.m. and 6 p.m. and every Sunday between 2 p.m. and 5 p.m. at the child ’ s place of residence and without the presence of any third parties. 10. The court ordered experts from the Białystok office of the Family Consultation Centre ( Rodzinny Ośrodek Diagnostyczno-Konsultacyjny ‑ “ the RODK”) to prepare an opinion on the suitable form and frequency of the applicant ’ s contact with his son. In the course of his interview with the experts, the applicant underlined his commitment to maintaining contact with the child, without giving any details. The experts established that the applicant had not been visiting his son as frequently as he was allowed under the interim decision of 19 July 2007. The last contact had occurred on 25 August 2007. 11. In their opinion, dated 15 October 2007, the experts underlined that the emotional ties between the mother and the child were strong and natural. However, the ties between the applicant and his son were weak and superficial. In the view of the experts, taking into account the necessity to ensure the proper development of the child, contact between the applicant and the child should take place four times a month and last two hours on each occasion. 12. On 15 November 2007 the Białystok Regional Court granted a decree of divorce without ascribing blame for the breakdown of the marriage. In its judgment the court also ruled that parental authority should be exercised by both parents and that the child should reside with the mother. It further ruled that the applicant had a right to see his son on the first three Fridays of each month from 4 p.m. until 6 p.m. and on every fourth Sunday of each month from 11 a.m. until 1 p.m. Contact should take place at the mother ’ s home in her discreet presence but in the absence of third parties. The applicant was further ordered to pay child maintenance. 13. It appears that neither of the parties appealed against the judgment, which consequently became final on 6 December 2007. B. Proceedings concerning a change in contact arrangements 14. In August 2011 the applicant filed an application with the Białystok District Court for a change to his contact arrangements. He asked the court to be allowed to have contact with his son on every second and fourth weekend of each month from 3 p.m. on Friday until 6 p.m. on Sunday, away from the mother ’ s home. He also asked to be allowed to see his son for some time over the Christmas and Easter periods and to spend with him half of the winter holidays and half of the summer school holidays. The applicant argued that the child had already reached the age of five and needed increased contact with his father in order to strengthen their ties. 15. The applicant admitted that after the divorce he had not seen his son for one year on account of his health problems. He submitted that his son was happy to spend time with him and to play with him. The applicant asserted that he had been able to provide appropriate care to his son and that in the event of need he could count on the support of his family. It was the mother of the child who had obstructed his contact with the child and made the atmosphere unfriendly. For example, she refused to pass on oral messages from their son to the applicant. The mother did not inform him about important decisions concerning the child and tried to marginalise him. 16. The mother submitted that the applicant had remained passive during his meeting with S.N. and that she had not obstructed those meetings. In her view, S.N. did not have any emotional ties with his father and did not need contact with him. Further, the applicant would be unable to properly care for S.N. The mother lived together with her parents and her son. 17. On 4 November 2011 a court guardian submitted a report to the court. According to that report, the applicant had not been visiting his son regularly on account of his being treated for depression and other illnesses. He had not seen his son since 12 October 2011. However, the mother of the applicant had been visiting her grandson regularly. 18. On 15 March 2012 the applicant applied for an interim decision and asked for the right to have contact with his son during the second day of the Easter holidays, from 10 a.m. to 5 p.m., and to take him away from his place of residence. On 23 March 2012 the Białystok District Court issued an interim decision allowing the applicant to visit his son during the second day of the Easter holidays from 11 a.m. to 1 p.m. at the child ’ s place of residence. 19. On 30 April 2012 the RODK issued an opinion commissioned by the District Court. It had been prepared by a psychologist, an education specialist and a psychiatrist who had met the parents and the child and had been assisted by an interpreter of sign language. The experts stated that emotional ties between the mother and the child were strong – indeed, the mother had a tendency to be overprotective. The child ’ s ties with the father were superficial and weak. The child recognised the applicant as his father but did not consider him a part of his family. The father ’ s ties with the child were positive, but founded on limited experience and high expectations. These ties were also affected by the communication difficulties between them. The experts further noted that the conflict between the parents impeded their cooperation with regard to the child. They suggested that the parents be counselled by a specialist with a view to their being taught how to accept each other as a parent. 20. The experts opined that an increase in contact, as requested by the applicant, was not advisable, on account of the limited level of communication between him and the child, the child ’ s age and history, and the strength of the child ’ s ties with the mother and maternal grandparents. They recommended, however, that contact should also take place outside the mother ’ s home ( at playgrounds, during walks) but in her presence. The mother should cooperate with the father and support him in making his contact with the child more diverse. The experts noted that the ability of the applicant to care independently for his son was considerably limited. In their view, the interests of the child required that the parents cooperate with each other, despite the communication problems. The experts added that the mother should be more proactive in this regard but that the father should not contest the mother ’ s decisions concerning the child. 21. The applicant contested the experts ’ findings and alleged that the opinion should have been prepared with the assistance of a specialist in deaf education and a psychologist specialising in the needs of deaf people. He claimed that their finding that contact could not take place without the presence of the mother on account of his (that is to say the applicant ’ s) disability amounted to discrimination. The experts had also disregarded the possibility of the paternal grandmother rendering assistance and of ordering the parents to undergo family therapy. 22. The District Court heard evidence from the RODK experts. The psychologist, G.H., admitted that the RODK did not have specialised methods of examining deaf people but stated that such methods were not necessary in respect of determining the advisability of maintaining contact. She noted that the child was well-developed and rehabilitated ( zrehabilitowanym ). The main obstacle in respect of contact was the conflict between the parents and the lack of cooperation between them. Such circumstances created a particular difficulty in the case of a child with a hearing impairment. The psychologist observed that the applicant ’ s disability also constituted an objective obstacle. In her opinion, contact should take place two to three times a month. 23. The court dismissed the applicant ’ s request for a second expert opinion since the earlier opinion was complete and comprehensive. 24. The court also heard the parties and witnesses (family members). It further took into account information submitted by a court guardian after visiting the applicant ’ s and the mother ’ s respective homes, together with relevant documentary evidence. 25. On 9 August 2012 the Białystok District Court dismissed the applicant ’ s application for a change to the contact arrangements. 26. The court established that the parents of S.N. remained in conflict and could not reach an agreement regarding the child ’ s contact with the father. Since September 2009 the child had attended a nursery school with an integration unit, where he had remained under the supervision of a specialist in deaf education, a speech therapist and a psychologist. He suffered from a hearing impairment and used a hearing aid. The child required specialised medical care and followed a rehabilitation programme. He was certified as having a second - degree disability. 27. Having regard to all the evidence, and in particular the expert opinion, the court found that the requested change to the contact arrangements would not be in the child ’ s best interests. It was true that the first decision in respect of contact had been given five years previously, when S.N. had been a baby and when the presence of his mother during contact had been justified by the child ’ s age. However, the age of the child was not the only element to consider. Other relevant elements were the specifics of the child ’ s development, his state of health, his disability, the need for his permanent medical rehabilitation and his heavy dependence on his mother and maternal grandparents. The court found that these elements still justified the discreet presence of the mother and at her home during the applicant ’ s contact visits. It noted that the requested change to the contact arrangements would be too far-reaching, since the applicant wanted to see his son more often, outside S. N. ’ s place of residence and without the mother being present. The court observed that except for the first two months of the child ’ s life the applicant had not lived with him or cared for him. The applicant admitted that he had not always kept to scheduled visits. Sometimes the reasons for this had been beyond his control (health problems or evening school commitments) and sometimes contact had been obstructed by the mother. However, in consequence, his limited and irregular involvement in the child ’ s life had adversely influenced the emotional ties between the father and the son. 28. The court underlined that the applicant had not been fully availing himself of his rights to contact his son, as granted by the divorce judgment. Nonetheless, once their ties were strengthened and the applicant made full use of the rights already granted to him, it would be possible to extend contact. 29. The court also found that it could not disregard the communication problems between the applicant and his son. It did not agree with the applicant that this constituted a discriminatory measure against him; rather, it constituted an objective and independent factor that hampered his communication with the child. The applicant, irrespective of his own and his son ’ s disability, had an incontestable right to contact with his son. However, the communication problem should be taken into account in regulating the contact arrangements so they would remain as favourable as possible to the child. The court noted that the applicant used mostly sign language (and articulated a few single words), while the child communicated only orally, so communication difficulties naturally arose. For this reason, it was still justifiable that the mother, who was able both to use sign language and communicate orally, should be present during the applicant ’ s visits. The mother ’ s presence, which provided the child with a sense of security, could also help him to relax during his meetings with the father. The court disagreed with the applicant that the paternal grandmother could ensure proper communication between him and his son. The issue was not only about interpreting between sign language and speech but also about ensuring security and stability, which could only be provided by the mother. The applicant ’ s son did not know his paternal grandmother well and so her presence would not compensate for the absence of his mother. 30. The court underlined that the applicant ’ s contact with his son should first and foremost ensure the security and stability of the child. The stress to which he would be exposed in the event of a change to his current environment and in the absence of persons with whom he usually spent his time would certainly jeopardise the child ’ s well-being and damage his sense of security. The court dismissed the applicant ’ s argument that the child spent most of his day in a nursery school (that is to say outside his home and without his mother ), so he could easily stay at the applicant ’ s father ’ s home. It noted that the mother had been preparing her son for nursery school over a long period of time and had at first attended the school with him for short periods of time so he could become familiar with the place. 31. The court observed that the child ’ s paternal grandmother had not visited her grandson for some time and was therefore not a person with whom the child was familiar or who could assist as an interpreter between the applicant and his son. 32. The fact that the child had been paying short unsupervised visits to a neighbour of the mother ’ s family did not support the applicant ’ s argument either. The court noted that the neighbour was a familiar person to the child, since he had been regularly visiting the child ’ s family. In addition, the unsupervised visits to the neighbour ’ s flat did not last longer than one hour. 33. Lastly, the court did not consider it necessary to impose an obligation on the parents to undergo family therapy. It noted that the experts had opined that both parents required contact with a specialist who would assist them in mutually accepting each other as a parent. However, the only suitable place for such therapy for persons with impaired hearing was the premises of a foundation ( fundacja ) attached to the nursery school attended by the child. The mother stated that she already attended a parent support group there and the applicant declared that he could do the same. In these circumstances, the court found that there was no need for its intervention. 34. The applicant lodged an appeal with the Białystok Regional Court. He argued that the District Court had failed to respect the principle of non-discrimination against deaf and mute persons by dismissing his application for unsupervised contact with his son. He invoked Article 4 § 1 of the Convention on the Rights of Persons with Disabilities. The applicant further argued that the lower court had erred in holding that the child ’ s interests did not justify a change to contact arrangements. The expert opinion indicated that the presence of the mother during contact created tensions between the parents and that this was unfavourable to the child. In addition, according to some witnesses, the contact took place in the presence of third parties. 35. The applicant contested the lower court ’ s finding that the child ’ s paternal grandmother was a stranger to him; he argued that the child would not be exposed to stress in the event of contact without the mother ’ s presence and outside her home in view of the fact that the child attended nursery school and was cared by a neighbour a few times a week. Lastly, the applicant contested the refusal to order a supplementary expert opinion. 36. On 23 November 2012 the Białystok Regional Court dismissed the applicant ’ s appeal. It found that the lower ’ s court assessment of the evidence had been correct and that the refusal to order a supplementary expert opinion had been justified. 37. The Regional Court noted that the contact arrangements could be amended if the interests of the child so required (Article 113 5 of the Family Code). It concurred with the lower court that there was no justification for a change to the existing arrangements since the applicant already had the possibility of regular contact with his son and if used this would enable the parties to strengthen their ties. The findings of the RODK experts clearly supported the conclusion that no change was necessary. The Regional Court also agreed that the existing conflict between the parents would certainly prevent the applicant from benefitting from increased contact. It stressed that the priority of the court in such cases was to take into account the interests of the child, not the interests of either of his or her parents. 38. It further underlined that the presence of the mother during visits was necessary in order to ensure the child ’ s sense of security since the mother was the primary carer, with strong ties to the child. The paternal grandmother could not provide the same sense of security. In addition, the mother ’ s presence would solve the problem of communication between the applicant and the child. The Regional Court did not agree with the applicant that the lower court ’ s taking into account the issue of communication barrier had amounted to discrimination against him. The communication barrier was a real obstacle to the forging of ties between the applicant and his son and it could not be disregarded, given that the interests of the child were of primary consideration, overriding the individual interests of the parents. The Regional Court stressed that this constituted an objective obstacle, not a form of discrimination against the applicant. C. Proceedings concerning parental authority 39. In July 2011 A.N. brought an action in the Białystok District Court for an order limiting the scope of the applicant ’ s parental authority over S.N. to those issues that concerned their son ’ s education. She submitted that the applicant had refused to give his consent to an identity document being issued for the child. 40. In October 201 1 the applicant brought a counteraction seeking an order to compel A.N. to undergo family therapy. He argued that A.N. was acting to the child ’ s detriment by refusing to cooperate with the applicant in matters concerning the child. She also humiliated and insulted the applicant in the child ’ s presence and undermined his authority. 41. On 2 August 2012 the Białystok District Court restricted the applicant ’ s parental authority over S.N. to issues concerning his education. It dismissed the applicant ’ s counteraction. 42. The court relied on the opinion prepared by the experts of the RODK for the purposes of the proceedings. The experts concluded that the joint exercise of parental authority was practically impossible. The reason for this was the permanent conflict between the parents, as well as the communication difficulties. The experts recommended that both parents undergo therapy with a view to developing their parenting skills. They further pointed out that that the possibility of communication between the applicant and his son was significantly restricted because of the different method that each used to communicate. In the view of the experts, the mother of the child properly exercised her parental authority, in particular with respect to the child ’ s needs, the necessity of treatment, and the development of the child ’ s social skills. 43. Having regard to the evidence, the court found that it was justifiable to restrict the applicant ’ s parental authority and limit it only to matters concerning the child ’ s education. Its decision was motivated by the lack of agreement between the parents in respect of the exercise of parental authority. The applicant was not to be solely blamed for this situation. Furthermore, communication with the applicant was limited on account of his disability; however, the mother had been aware of this fact since the beginning of their relationship. The court further took into account the fact that the child was being raised by the mother, the parents lived apart, and there was a communication barrier between the applicant and the child. This was of importance in respect of matters concerning the child ’ s health. The court underlined that the fact that communication between the applicant and his son was limited did not mean that the applicant was a bad father. The court found that it was not necessary to give the applicant the possibility to have a say in matters concerning the child ’ s medical treatment since these were sometimes urgent – therefore, it was the mother, with whom the child lived, who should decide on them. 44. With regard to the applicant ’ s request for the mother to be obliged to undergo family therapy, the court did not find this justified. It took into account the fact that the mother had already been attending a support group and found no reasons to formally oblige her to undergo therapy. It was established that the mother had independently taken important decisions concerning the child of which she had not informed the applicant and that she was overprotective. Nonetheless, the court found that she properly exercised her parental authority and that the child ’ s welfare was not endangered. 45. The applicant appealed. 46. On 23 November 2012 the Białystok Regional Court dismissed the applicant ’ s appeal. It underlined that the court of first instance had comprehensively assessed the evidence in the case. In the view of the Regional Court, the limitation of the applicant ’ s parental authority was in the interests of the child. It ruled that the communication barrier constituted an objective obstacle to relations between the applicant and his son and that taking it into account could not be considered to constitute a form of discrimination against the applicant. IV. COUNCIL OF EUROPE MATERIALS 51. Recommendation No. R (98) 1 of the Council of Europe ’ s Committee of Ministers to member States on the Family Mediation, adopted on 21 January 1998, recognised the growing number of family disputes, particularly those resulting from separation or divorce. Noting the detrimental consequences of conflict for families, the texts recommended that the member States introduce or promote family mediation or, where necessary, strengthen existing family mediation. In accordance with paragraph 7 of the Recommendation, the use of family mediation could “improve communication between members of the family, reduce conflict between parties in dispute, produce an amicable settlement, provide continuity of personal contacts between parents and children, and lower the social and economic costs of separation and divorce for the parties themselves and States ” (see also the European Commission for the Efficiency of Justice ’ s Guidelines for a better implementation of the existing recommendation concerning family mediation and mediation in civil matters ( CEPEJ (2007)14 ) ). | This case concerned the contact rights of a deaf and mute father with his son, who also has a hearing impairment. The applicant complained in particular about the dismissal of his request to extend contact with his son. |
948 | Deprivation of voting rights as part of a criminal investigation | I. THE CIRCUMSTANCES OF THE CASE A. The applicant's detention and the proceedings against him 10. The applicant was arrested on 21 April 1992 in connection with an investigation involving forty-six people under a warrant issued by the Trapani District Court on 18 April 1992. He was suspected of being a member of a mafia -type organisation in Alcamo and of running a financial company on behalf of his brother-in-law, who was believed to be the leader of the main mafia gang in the area (Article 416 bis of the Criminal Code makes it an offence to be a member of a mafia -type organisation). The accusations against the applicant were based in particular on statements made by one B.F., who also stood accused of being a member of a mafia -type organisation but had become a pentito (a former mafioso who has decided to cooperate with the authorities). B.F.'s information about the applicant had been obtained from one G.D., who had been killed by the Mafia on 25 October 1989, and had, in turn, received the information from another deceased victim of the Mafia, F.M. 11. The applicant was initially detained at Palermo Prison, where he spent thirty-five days in isolation. 12. His first application for bail was dismissed by the Trapani District Court on 6 May 1992. The District Court found in particular that although the statements made by B.F. regarding the applicant's involvement in the Mafia had provided no information or objective evidence about the applicant's actual role and activity, they could nonetheless constitute sufficient grounds to justify his detention, having regard to the credibility and reliability of the various statements B.F. had made concerning other people or events connected with the Mafia (it applied the “global credibility” criterion – attendibilità complessiva ). It added that B.F. had identified the applicant from a photograph and provided information concerning his exact role in the mafia -type organisation. He had indicated that the applicant, who was the brother ‑ in ‑ law of the head of one of the Alcamo mafia clans, ran a financial company and, along with another person whom B.F. had previously identified as being a member of the Mafia, was a co-owner of a management company that ran a discotheque. The Trapani District Court also found that the applicant's detention was warranted by the need to protect witnesses, since most of the evidence took the form of oral testimony and there was therefore a risk of its being lost through pressure being brought to bear on the witnesses. 13. On 20 July 1992 the applicant was transferred with fifty-four other alleged mafiosi to the prison on the island of Pianosa. 14. On an unspecified date, he appealed to the Court of Cassation against the decision of 6 May 1992. He argued in particular that he had been detained solely on the basis of B.F.'s statements, which were unsupported by any factual evidence. In addition, he said that the District Court had refused to accept that he was not the manager of a financial company and had taken that allegation as evidence that he was an executive in local finance and as supporting the accusation that he was a branch treasurer for the Mafia. In fact, he was merely an employee of the company and had even been the subject of disciplinary proceedings. However, the Court of Cassation dismissed his appeal on 2 October 1992. 15. The applicant made a further application for bail to the investigating judge ( giudice per le indagini preliminari ), contending that there were not sufficient grounds for keeping him in detention, but it was dismissed on 29 December 1992. 16. The applicant's appeal to the Trapani District Court was dismissed on 8 February 1993 on the ground that Article 275 § 3 of the Code of Criminal Procedure created a presumption that the continued detention of suspects charged with belonging to a mafia -type organisation was necessary and that it was therefore for the person seeking bail to produce specific, concrete evidence to rebut that presumption. The District Court considered that the applicant's arguments – such as that related to the length of his detention – were of a general nature and had been rejected in earlier cases. 17. On application by the prosecution, the investigating judge at the Trapani District Court made an order on 8 April 1993 pursuant to Article 305 § 2 of the Code of Criminal Procedure extending the maximum permitted period of detention pending trial. 18. Meanwhile, other pentiti had stated during the course of the investigation that they did not know the applicant. 19. The applicant appealed to the District Court against the order of 8 April 1993, contending that the impugned order was null and void as the application for an extension had not been served beforehand on his lawyer and the court had given only general, not specific, reasons. 20. The Trapani District Court dismissed the applicant's appeal on 22 June 1993. It held that all the law required was that the parties should be heard at an adversarial hearing and that had been done in the instant case. There was no requirement that the application should be formally served beforehand. As to whether the impugned measure was necessary, the District Court found that although the reasoning in the order was somewhat succinct, it had pointed to the risk of evidence being tampered with, particularly in view of the special nature of the offence (membership of a mafia -type organisation), and the danger presented by all the accused, who were suspected of belonging to a criminal organisation that engaged in serious crime such as homicide. Furthermore, the prosecution had given a full explanation as to why it had been necessary for the purposes of the investigation to make the application: namely because of the need to carry out complex banking and fiscal inquiries to clarify the extent to which the accused controlled the area. The District Court also noted that the nature of the crime concerned meant that the investigation had to cover the mafia ‑ type organisation as a whole, and, therefore, necessarily, all of the accused. 21. On 28 June 1993 the applicant appealed to the Court of Cassation contending that the rights of the defence had been infringed. However, his appeal was dismissed on 18 October 1993. 22. On 2 October 1993 the applicant was committed for trial on a charge of being a member of a mafia -type organisation. The public prosecutor's office sought a three-year prison sentence. 23. In a judgment of 12 November 1994, which was lodged with the registry on 9 February 1995, the Trapani District Court acquitted the applicant and ordered his release unless there were other reasons why he should remain in custody. It observed that the case against the applicant had been founded solely on statements made by B.F. on the basis of information B.F. had learnt from G.D., who had in turn obtained that information from F.M. Both sources were now dead, thus rendering any independent corroboration of B.F.'s statements impossible. The only affirmation that had been proved was that the applicant had worked at the finance company concerned, but there was no evidence that he had acted as its manager or treasurer. Indeed, that allegation had been contradicted by other witnesses and factual evidence. The District Court concluded that the applicant's guilt had not been established. 24. The judgment was delivered towards 10 p.m. The applicant, who had been in the Trapani District Court for the verdict, was brought back to Termini Imerese Prison, still in handcuffs, at 12.25 a.m. He was not released until 8.30 a.m. because the registration officer, whose presence was necessary on the release of prisoners subject to a special prison regime, was unavailable. 25. The public prosecutor's office appealed against his acquittal. 26. In a judgment of 14 December 1995, which became final as regards the applicant on 25 June 1996, the Palermo Court of Appeal upheld his acquittal on the ground that B.F.'s statements were unsupported by other concrete evidence and had been refuted by evidence obtained during the investigation. B. The ill-treatment to which the applicant alleges he was subjected in Pianosa Prison 1. The impugned treatment 27. The applicant was held at Termini Imerese Prison until 20 July 1992, when he was transferred to Pianosa Prison under urgent measures taken by the Italian Government against the Mafia following the killing by that organisation of two senior judges. Pianosa Prison had previously held approximately 100 prisoners who enjoyed a less strict regime, which included the right to work on the island outside the prison. The high ‑ security prisoners were held together in the “ Agrippa ” wing. A large number of prison warders from other penal institutions were also transferred to Pianosa Prison. The applicant was held at Pianosa without interruption until 29 January 1993. Subsequently, he was regularly transferred for short periods to enable him to be present at the various stages of the proceedings against him. 28. The medical register kept by Pianosa Prison shows that the applicant was in good health on arrival. 29. He alleged that he was ill-treated in a number of ways, detailed below, mainly between July and September 1992 (the situation subsequently improved). ( i ) He was regularly slapped and had sustained an injury to his right thumb. His testicles had been squeezed, a practice which the applicant said was systematically inflicted on all prisoners. (ii) On one occasion the applicant was beaten and his jumper was torn. He protested. Two hours later a warder ordered him to shut up, insulted and then struck him, damaging the applicant's glasses and a false tooth. (iii) He was manhandled on other occasions. Prisoners were allowed to put cleaning products in the corridors. Sometimes the prison warders caused the products to spill on the floor and mixed them with water, thus making the floor slippery. Prisoners were then forced to run along the corridors between two rows of warders. Those who fell were hit by warders and beaten with batons. (iv) He was often subjected to body searches when showering. (v) He had to wait very lengthy periods to see a doctor and remained handcuffed during medical examinations. (vi) The warders warned prisoners that they would be subjected to reprisals if they told their lawyers or other prisoners about the treatment they were receiving. (vii) In the presence of warders prisoners were required to bow their heads, keep their eyes to the ground, show respect, remain silent and stand to attention. 30. Lastly, the applicant said that transfers of prisoners from the prison to the courts for hearings took place in inhuman conditions: in the hold of the vessel, without air, light or food and with very poor hygiene. 2. The medical certificates 31. The Pianosa Prison medical register shows that on 9 September 1992 the applicant complained of a problem with a false tooth and the prison doctor therefore referred him for examination by a dentist. In April 1993 a further request was made for an appointment with a dentist to have a loose false tooth cemented. 32. On 10 August 1993 the Pianosa Prison medical service requested x ‑ rays and an appointment with an orthopaedist following a complaint by the applicant of pain in his knees. On 22 September 1993, following tests, an orthopaedist noted problems – the medical record does not reveal their exact nature – in the applicant's knees. 33. On 17 March 1994 the dentist noted that the false tooth had completely broken and needed repair. 34. A medical report of 24 March 1995 notes calcification in the knee joint. The applicant had a scan on 3 April 1996 that revealed two small wounds resulting from traumatic injury in the upper, outer part of the knee. 35. A medical certificate dated 20 March 1996 refers to psychological disorders (asthenia, state of confusion, depression) that had started three years earlier. 3. Proceedings instituted by the applicant 36. On 2 October 1993, at a preliminary hearing before the Trapani investigating judge, the applicant and another prisoner alleged that they had suffered forms of ill-treatment such as “torture, humiliation and cruelty” in Pianosa Prison until October 1992. The applicant said in particular that he had suffered a broken finger and broken teeth. Even though the position had improved after October 1992, he complained that the overall treatment to which he had been subjected and which had been imposed on the basis of, inter alia, section 41 bis of Law no. 354 of 1975, was inhuman and emotionally draining. 37. The investigating judge informed the Livorno public prosecutor's office of the above; the public prosecutor's office opened an official inquiry (no. 629/93) and on 12 November 1993 instructed the Portoferraio carabinieri to question the applicant about the nature and duration of the ill ‑ treatment he had allegedly suffered and to obtain from him any information he had that would help to identify those responsible. It also requested the applicant's medical records. 38. The applicant was interviewed on 5 January 1994 by the Portoferraio carabinieri. He said that from the moment he arrived at Pianosa he had been subjected to “hidings, torture, acts of cruelty and psychological torture” by the warders. In particular, they would hit him in the back with their hands. When he left his cell for the exercise yard he was made to run along a corridor that had been made slippery. The warders formed a line the length of the corridor and delivered kicks, punches and baton blows. On one occasion he had protested that the warders had torn his jumper as they struck him. One of them had told him to shut up, insulted him and then hit him, damaging his glasses and a false tooth. Prisoners were violently beaten every time they left their cells. He added, however, that he was unable to recognise the warders responsible because the prisoners were obliged to keep their heads bowed in their presence. He stated lastly that the beatings had ceased in October 1992. 39. On 7 January 1994 the carabinieri sent the interview record and the applicant's medical file to the Livorno public prosecutor's office. They said that they would forward a list of the warders who had worked at Pianosa Prison at the material time later. 40. On 9 March 1995 the applicant was interviewed by the Trapani carabinieri on the instructions of the Livorno public prosecutor's office. He was shown photocopies of photographs of 262 prison warders who had worked at Pianosa Prison. The applicant said that he was unable to identify the person who had ill-treated him, but commented that the photographs had been taken before the relevant period and were only photocopies. He added that he would have had no difficulty in identifying the warder concerned had he been able to see him in person. 41. On 18 March 1995 the Livorno public prosecutor's office applied to have the complaint filed away without further action on the ground that the offenders could not be identified ( perché ignoti gli autori del reato ). The Livorno investigating judge made an order to that effect on 1 April 1995. 4. The report of the Livorno judge responsible for the execution of sentences on conditions at Pianosa Prison 42. On 5 September 1992 the Livorno judge responsible for the execution of sentences had sent a report to the Minister of Justice and other relevant prison and administrative authorities on prison conditions in Pianosa. 43. The report followed an initial inspection of the prison in August 1992 in which it was noted in particular that there had been repeated violations of prisoners' rights and a number of incidents of ill-treatment, both in the special “ Agrippa ” wing and in the ordinary wings. By way of example, it was noted in the report that: ( i ) hygiene was appalling; (ii) prisoners' correspondence, though permitted subject to censorship, was totally blocked and telegrams were delivered to prisoners only after substantial delays; (iii) prisoners were forced to run to the exercise yard, and probably beaten with batons on the legs; (iv) prisoners were sometimes beaten with batons and subjected to other forms of ill-treatment (for example, one prisoner was allegedly forced to undress completely and to do floor exercises ( flessioni ) before being subjected to a rectal search, which, according to the judge responsible for the execution of sentences, had been wholly unnecessary as the prisoner had just finished doing work in the presence of other warders; the prisoner concerned, who was slapped while getting dressed, had then consulted the prison doctor; that night, three warders had subjected him to a beating in his cell); (v) apparently, other similar incidents had taken place subsequently, although the situation appeared to have improved more recently, probably as a result of action taken against prison warders. 44. After information and press reports began to circulate that prisoners in Pianosa Prison were being subjected to violence, the Livorno public prosecutor spent a day on the island and informed the press that he had found nothing to support the allegations. 45. Further, on 30 July 1992 inspectors for the Tuscany prison services had informed the Prison Administration Department at the Ministry of Justice that, according to information from reliable sources, there had been serious incidents of ill-treatment of prisoners at Pianosa Prison. In particular, the report referred to one incident in which a handicapped prisoner had been brought into the prison in a wheelbarrow to the jeers of the warders and another in which a prisoner had been forced to kneel before a candle. 46. In a note to the Minister's principal private secretary dated 12 October 1992, the Director-General of the Prison Administration Department at the Ministry of Justice explained that the conditions referred to by the Livorno judge responsible for the execution of sentences were due essentially to the fact that fifty-five prisoners had been transferred to Pianosa as a matter of urgency in the night of 19 to 20 July 1992. That had caused practical problems which could to a large extent explain the inconvenience that had been noted. In addition, additional problems had been caused by building works in the prison. 47. On 28 October 1992 the Director-General forwarded the conclusions of a group of experts appointed by the department to the principal private secretary to the Minister and to the public prosecutor's office. On the basis of the information supplied by prisoners questioned in the prison, the experts had found that the allegations of ill-treatment were wholly unfounded apart from the incident concerning the moving of a handicapped prisoner in a wheelbarrow, which, however, had resulted from a lack of wheelchairs in the prison. 48. Following the report by the judge responsible for the execution of sentences, an inquiry was nonetheless started and the information obtained was sent to the Livorno public prosecutor's office. Only two warders had been identified; they were suspected of offences of causing bodily harm (Article 582 of the Criminal Code) and of abuse of authority over persons who had been arrested or detained (Article 608 of the Criminal Code). 49. The public prosecutor's office sought an order for both charges to be dropped, the former because no complaint had been lodged and the latter because it was time-barred. The application was allowed with regard to the offence of causing bodily harm, but dismissed with regard to the other charge and on 20 December 1996 the investigating judge sought additional information. That inquiry is believed still to be under way. 50. In a note of 12 December 1996 – which was appended to the Government's observations in the proceedings before the Commission – the President of the court responsible for the execution of sentences in Florence said that the incidents that had taken place in Pianosa Prison had been ordered or tolerated by the government of the day. He also considered that the applicant's allegations concerning the conditions during transfers were entirely credible and that transfers of prisoners to Pianosa Prison were carried out using questionable and unjustified methods, the real purpose of which was to intimidate prisoners. He further noted that the high-security wing of Pianosa Prison had been staffed by warders from other prisons who had not been subjected to any selection process and had been given “ carte blanche ”. The result, according to the President of the court, was that management of that wing of the prison had initially been characterised by abuse and irregularities. C. Censorship of the applicant's correspondence 1. Application of section 41 bis of the Prison Administration Act 51. On 20 July 1992 the Minister of Justice issued an order subjecting the applicant to the special prison regime laid down in section 41 bis of Law no. 354 of 1975 until 20 July 1993. The Minister considered that the measure was necessary in particular because of serious public-order and safety considerations following an escalation of an aggressive and ruthless campaign by the Mafia, which had been responsible for the recent assassinations of three judges and eight policemen and for car-bomb attacks in large Italian cities. That situation made it necessary to sever connections between certain prisoners and their milieu. The applicant was subject to the measure concerned because he was of bad character and dangerous; those factors suggested that he had maintained contact with the criminal milieu which he would be able to use to issue instructions or establish links with the outside world that could in turn lead to a breakdown of public order or jeopardise security in prison institutions. In addition, it was a reasonable assumption that prisoners such as the applicant would recruit other prisoners or dominate and humiliate them in prison, just as they did in criminal organisations. 52. The order represented a derogation from the Prison Administration Act and imposed the following restrictions: ( i ) a ban on the use of the telephone; (ii) a ban on all association or correspondence with other prisoners; (iii) censorship of all inward and outward correspondence; (iv) a ban on meetings with third parties; (v) restrictions on visits from members of the family (to one hour monthly); (vi) a ban on receiving or sending sums of money over a set amount; (vii) a ban on receiving parcels (other than those containing linen) from the outside; (viii) a ban on organising cultural, recreational or sporting activities; (ix) a ban on voting or standing in elections for prisoner representatives; (x) a ban on taking part in arts-and-crafts activities; ( xi ) a ban on buying food that needed cooking; ( xii ) a ban on spending more than two hours outdoors. 53. These measures were subsequently extended for successive six ‑ monthly periods until 31 January 1995. 2. Censorship of the applicant's correspondence 54. On 21 April 1992 the Trapani District Court decided, without giving specific reasons, to subject the applicant's correspondence to censorship. However, his correspondence was not monitored while he was in Termini Imerese Prison. 55. An order was also made for censorship of the applicant's correspondence by the Minister of Justice on 20 July 1992 (see paragraph 52 above). 56. The following letters were censored: ( i ) the applicant's letter of 21 October 1992 to his wife (delivery of this letter was delayed by the Pianosa Prison as the prison authorities, considering the content to be suspect, first sent it to the judicial authorities); (ii) a letter of 7 May 1993 sent to the applicant by his first lawyer (stamped by the Pianosa Prison censors); (iii) a letter of 28 February 1993 sent by the applicant to his family (stamped by the Termini Imerese Prison censors); (iv) a letter sent by the applicant to his wife on 2 March 1993 enclosing a certificate (the Termini Imerese Prison authorities had intercepted the letter and sent it to the Prison Administration Department at the Ministry of Justice with a request for permission to remit the letter to the applicant; as no reply was received, the letter was never remitted to him); (v) a letter from the applicant to his family posted on 7 May 1993 (stamped by the Pianosa Prison censors). 57. On 15 September 1993, as a result of a Constitutional Court decision (no. 349 of 28 July 1993 – see paragraph 102 below), the Minister of Justice rescinded the measure regarding censorship of correspondence that had been issued in orders made under section 41 bis. 58. The applicant's correspondence nonetheless continued to be subject to censorship as a result of the Trapani District Court's decision of 21 April 1992. 59. On 21 February 1994 the Trapani District Court ordered rescission of that order, but the applicant's correspondence continued to be censored notwithstanding. 60. On 10 June 1994 the applicant reverted to the ordinary prison regime; the change entailed among other things an end to censorship. However, at least one letter (sent to the applicant by his wife on 28 July 1994) was nonetheless censored by the Pianosa Prison authorities. 61. On 13 August 1994, at the request of the Pianosa Prison authorities, an order was made by the President of the Criminal Division of the Trapani District Court, renewing censorship of the applicant's correspondence. The following letters were censored: ( i ) a letter of 24 August 1994 sent to the applicant by his second lawyer (stamped by Pianosa Prison); (ii) letters sent to the applicant by his wife on 18, 21, 29 and 30 August 1994 containing two photographs of the applicant's children (and each bearing the Pianosa Prison censors' stamp); (iii) a letter of 31 August 1994 from the applicant to his family (stamped by Pianosa Prison); (iv) a letter of 1 September 1994 sent to the applicant by his children (stamped by Pianosa Prison); (v) a letter of 16 October 1994 sent to the applicant by his granddaughter (stamp illegible); (vi) letters of 18 and 20 October 1994 sent to the applicant by his wife (stamped by Termini Imerese Prison); (vii) a letter of 20 October 1994 apparently sent to the applicant by members of his family (stamped by Termini Imerese Prison); (viii) an undated letter sent to the applicant by his granddaughter (stamped by Pianosa Prison). 62. As to the two letters sent to the applicant by his lawyers on 7 May 1993 and 24 August 1994, the Pianosa Prison authorities said that they could not be regarded as being correspondence with defence counsel for the purposes of Article 35 of the transitional provisions of the new Code of Criminal of Procedure (see paragraph 97 below). D. Preventive measures imposed on the applicant 63. On an application dated 9 September 1992 by the Trapani public prosecutor's office the Trapani District Court made an order on 10 May 1993 imposing preventive measures on the applicant, who was put under special police supervision and required to live at Alcamo for three years. The District Court found in particular that the applicant had been shown to be dangerous by concrete evidence: he was being investigated in connection with a very serious offence, was in detention pending trial and, along with other suspected mafiosi, held shares in a company that ran a discotheque where members of the Mafia met. The applicant was required, inter alia : ( i ) not to leave his home without informing the authorities responsible for supervising him; (ii) to live an honest life and not to arouse suspicion; (iii) not to associate with persons who had a criminal record or who were subject to preventive or security measures; (iv) not to return home later than 8 p.m. or to leave home before 6 a.m., unless due cause could be shown and in all cases only after informing the authority responsible for supervising him; (v) not to keep or carry weapons; (vi) not to go to bars or attend public meetings; (vii) to have on him at all times the card setting out his precise obligations under the preventive measures and a copy of the court order; (viii) to report to the relevant police station on Sundays between 9 a.m. and 12 noon. 64. However, the District Court found that it was not possible to conclude from the evidence on the file that the company referred to had been used to launder money coming from illegal Mafia activities. It consequently made an order for severance of the proceedings relating to the attachment both of the applicant's holding in the company concerned and some of his immovable property. 65. The applicant appealed, but his appeal was dismissed on 7 December 1993. The court of appeal noted, firstly, that a presumption arose under Law no. 575 of 15 May 1965 that a member of the Mafia was dangerous and that for the purposes of the imposition of preventive measures, such membership could be established on the basis of inferences, full proof being required only to secure a conviction. In the case before it, there was circumstantial evidence against the applicant, such as the decisions to detain him pending trial and to commit him for trial. Furthermore, B.F. had clearly stated that the applicant was both a member and the treasurer of a mafia ‑ type organisation. There were other factors, too, such as the applicant's business relations with other mafiosi. The applicant's contact with the Mafia was also confirmed by the fact that he had seen fit to marry the sister of a mafia boss and thus to become a member of a mafia clan, which undoubtedly made it likely that he would receive requests for assistance from that criminal organisation. 66. The applicant appealed to the Court of Cassation, but that appeal was also dismissed in a judgment of 3 October 1994 on the ground that the assessment whether a person was dangerous was based on any factor which the court found to be cogent. The Trapani District Court and the Palermo Court of Appeal had established that it was likely that the applicant belonged to the Alcamo mafia clan on the basis of the evidence that had led to the applicant being kept in pre-trial detention. No appeal lay to the Court of Cassation against the verdict of the trial and appellate courts on the facts. 67. Meanwhile, on 22 May 1993 the Trapani Prefect ordered the applicant to surrender his passport. That order could not be executed as the applicant said that it had been lost. The prefect also ordered the applicant to produce his national identity card so that the words “not valid for foreign travel” could be stamped on it. 68. On 1 June 1993 the Trapani Prefect ordered the confiscation of the applicant's driving licence. 69. The preventive measures were suspended until the end of the trial and applied with effect from 19 November 1994 following the applicant's acquittal by the Trapani District Court. 70. On 13 February 1996 the applicant was refused permission to leave Alcamo to accompany his wife and one of their sons to Palermo Hospital – where they were due to undergo medical tests – on the ground that the tests did not relate to a serious illness. 71. Meanwhile, on 8 January 1996 the applicant had applied to the Trapani District Court for an order lifting the preventive measures on the ground that he had now been finally acquitted (by a judgment of 14 December 1995) and that it was impossible for him to find employment. 72. On 11 June 1996 the District Court dismissed that application. In doing so, it firstly reiterated the settled case-law of the Court of Cassation whereby matters established at trial, though insufficient to support a conviction, could, if appropriate when coupled with other evidence, nonetheless amount to serious evidence capable of proving that a person who has been acquitted might be dangerous. That, said the District Court, was the position in the case before it. It considered that the statements made by B.F. showed that the applicant had associated with the Alcamo mafia clan, as proved by the fact that his late brother-in-law had been the head of the main clan. As to his inability to find work, the court considered that it was unrelated to the preventive measures since the applicant could at any stage have sought permission to work and would have been authorised to do so, provided, of course, that the work was compatible with his obligations under the preventive measures. 73. On 7 October 1996 the applicant's identity card was returned marked “not valid for foreign travel”. 74. On an unspecified date the applicant made a further request to the Trapani District Court to rescind the preventive measures against him repeating that he had now been finally acquitted and stressing that he had always complied with the preventive measures. 75. On 21 October 1997 the Trapani District Court dismissed that application stating, firstly, that the proceedings concerning the preventive measures were quite separate from the criminal proceedings so that the acquittal had no automatic effect on the preventive measures that had already been ordered. In any event, the applicant had not shown any real change in his life-style or that he was genuinely repentant. 76. The preventive measures against the applicant ceased to apply on 18 November 1997. E. Disenfranchisement 77. As a result of the imposition of the special supervision measure on the applicant, the Alcamo Municipal Electoral Committee decided on 10 January 1995 to strike the applicant off the electoral register on the ground that his civil rights had lapsed pursuant to Article 32 of Presidential Decree no. 223 of 20 March 1967. 78. The applicant lodged an appeal with the Ward Electoral Board in which he contended that no reasons had been stated in the decision of 10 January 1995 and that the decision to impose preventive measures had been taken before his acquittal. In a decision of 27 February 1995, served on the applicant on 7 March 1995, the board dismissed the appeal on the ground that the applicant had been disenfranchised by operation of law (as his civil rights had lapsed following imposition of the special supervision measure), not by a decision of the electoral committee. The applicant did not appeal against that decision. 79. On 19 November 1997, following the expiration of the preventive measures, the applicant applied to be reinstated on the electoral registers. 80. On 28 November 1997 the Ward Electoral Committee informed the mayor of Alcamo that it had authorised the applicant to take part in the imminent administrative elections scheduled to be held on 30 November 1997. 81. On 29 November 1997 the mayor notified the applicant of the electoral committee's decision. 82. On 11 December 1997 the Municipal Electoral Committee reinstated the applicant on the Alcamo electoral register. F. Compensation for “unjust” detention 83. On 4 February 1997 the applicant applied to the Palermo Court of Appeal for an award of compensation under Articles 314 and 315 of the Code of Criminal Procedure for his detention from 21 April 1992 to 12 November 1994, which the applicant's acquittal on 14 December 1995 showed to have been “unjust”. 84. The Court of Appeal acceded to his claim in a decision of 20 January 1998, which was lodged with the registry on 23 January 1998. Having regard to the length and particularly harsh conditions of his detention, and to the damage sustained by the applicant (to his reputation) and by his family (who had had to make long journeys for visits), it awarded him 64,000,000 Italian lire. | The applicant was arrested in April 1992 on suspicion of being a member of the Mafia, following uncorroborated allegations by a former Mafioso who had decided to cooperate with the authorities. He was held in detention pending trial for approximately two years and seven months. Following his acquittal, preventive measures were imposed on him and he was deprived of his voting rights. He complained, among other things, of the loss of his voting rights as a result of the imposition of the preventive measures. |
265 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1974 and lives in Milan. 10. The applicant, who entered Italy at some unspecified time between 1996 and 1999, held a residence permit issued for “family reasons” by the Bologna police authority ( questura ) on 29 December 2001. This permit was due to expire on 11 October 2002. A. The criminal proceedings against the applicant in Italy and Tunisia 11. On 9 October 2002 the applicant was arrested on suspicion of involvement in international terrorism (Article 270 bis of the Criminal Code), among other offences, and placed in pre-trial detention. He and five others were subsequently committed for trial in the Milan Assize Court. 12. The applicant faced four charges. The first of these was conspiracy to commit acts of violence (including attacks with explosive devices) in States other than Italy with the aim of spreading terror. It was alleged that between December 2001 and September 2002 the applicant had been one of the organisers and leaders of the conspiracy, had laid down its ideological doctrine and given the necessary orders for its objectives to be met. The second charge concerned falsification “of a large number of documents such as passports, driving licences and residence permits”. The applicant was also accused of receiving stolen goods and of attempting to aid and abet the entry into Italian territory of an unknown number of aliens in breach of the immigration legislation. 13. At his trial the prosecution called for the applicant to be sentenced to thirteen years ’ imprisonment. The applicant ’ s lawyer asked the Assize Court to acquit his client of international terrorism and left determination of the other charges to the court ’ s discretion. 14. In a judgment of 9 May 2005, the Milan Assize Court altered the legal classification of the first offence charged. It took the view that the acts of which he stood accused did not constitute international terrorism but criminal conspiracy. It sentenced the applicant to four years and six months ’ imprisonment for that offence, and for the forgery and receiving offences. It acquitted the applicant of aiding and abetting clandestine immigration, ruling that the acts he stood accused of had not been committed. 15. As a secondary penalty, the Assize Court banned the applicant from exercising public office for a period of five years and ordered that after serving his sentence he was to be deported. 16. In the reasons for its judgment, which ran to 331 pages, the Assize Court observed that the evidence against the applicant included intercepts of telephone and radio communications, witness statements and numerous false documents that had been seized. Taken together, this evidence proved that the applicant had been engaged in a conspiracy to receive and falsify stolen documents, an activity from which he derived his means of subsistence. On the other hand, it had not been established that the documents in question had been used by the persons in whose names they had been falsely made out to enter Italian territory illegally. 17. As regards the charge of international terrorism, the Assize Court firstly noted that a conspiracy was “terrorist” in nature where its aim was to commit violent acts against civilians or persons not actively participating in armed conflict with the intention of spreading terror or obliging a government or international organisation to perform or refrain from performing any act, or where the motive was political, ideological or religious in nature. In the present case it was not known whether the violent acts that the applicant and his accomplices were preparing to commit, according to the prosecution submissions, were to be part of an armed conflict or not. 18. In addition, the evidence taken during the investigation and trial was not capable of proving beyond a reasonable doubt that the accused had begun to put into practice their plan of committing acts of violence, or that they had provided logistical or financial support to other persons or organisations having terrorist aims. In particular, such evidence was not provided by the telephone and radio intercepts. These proved only that the applicant and his accomplices had links with persons and organisations belonging to Islamic fundamentalist circles, that they were hostile to “infidels” (and particularly those present in territories considered to be Muslim) and that their relational world was made up of “brothers” united by identical religious and ideological beliefs. 19. Using coded language the defendants and their correspondents had repeatedly mentioned a “football match”, intended to strengthen their faith in God. For the Assize Court it was quite obvious that this was not a reference to some sporting event but to an action applying the principles of the most radical form of Islam. However, it had not been possible to ascertain what particular “action” was meant or where it was intended to take place. 20. Moreover, the applicant had left Milan on 17 January 2002 and, after a stopover in Amsterdam, made his way to Iran, from where he had returned to Italy on 14 February 2002. He had also spoken of a “leader of the brothers” who was in Iran. Some members of the group to which the applicant belonged had travelled to “training camps” in Afghanistan and had procured weapons, explosives, and observation and video - recording equipment. In the applicant ’ s flat and those of his co-defendants, the police had seized propaganda about jihad – or holy war – on behalf of Islam. In addition, in telephone calls to members of his family in Tunisia made from the place where he was being detained in Italy, the applicant had referred to the “martyrdom” of his brother Fadhal Saadi; in other conversations he had mentioned his intention to take part in holy war. 21. However, no further evidence capable of proving the existence and aim of a terrorist organisation had been found. In particular, there was no evidence that the applicant and his accomplices had decided to channel their fundamentalist faith into violent action covered by the definition of a terrorist act. Their desire to join a jihad and eliminate the enemies of Islam could very well be satisfied through acts of war in the context of an armed conflict, that is, acts not covered by the concept of “terrorism”. It had not been established whether the applicant ’ s brother had really died in a suicide bombing or whether that event had been the “football match” which the defendants had repeatedly referred to. 22. The applicant and the prosecution appealed. The applicant asked to be acquitted of all the charges, while the prosecution wanted him to be convicted of international terrorism and aiding and abetting clandestine immigration as well. 23. In the prosecution ’ s appeal it was submitted that, according to the case-law of the Court of Cassation, the constituent elements of the crime of international terrorism were made out even where no act of violence had occurred, the existence of a plan to commit such an act being sufficient. In addition, an action could be terrorist in nature even if it was intended to be carried out in the context of an armed conflict, provided that the perpetrators were not members of the “armed forces of a State” or an “insurrectionary group”. In the present case, it was apparent from the documents in the file that the applicant and his associates had procured for themselves and others false documents, weapons, explosives and money in order to commit violent acts intended to affirm the ideological values of fundamentalist Islam. In addition, the accused had maintained contacts with persons and organisations belonging to the sphere of international terrorism and had planned a violent and unlawful action, due to be carried out in October 2002 as part of a “holy war” and in a country other than Italy. Only the defendants ’ arrest had prevented the plan from being implemented. Furthermore, at that time the armed conflict in Afghanistan had ended and the one in Iraq had not yet started. 24. The prosecution further submitted that the applicant ’ s brother, Mr Fadhal Saadi, had been detained in Iran; the applicant had visited him there in either January or February 2002. After his release Mr Fadhal Saadi had settled in France and stayed in contact with the applicant. He had then died in a suicide bombing, a fact which was a source of pride for the applicant and the other members of his family. That was revealed by the content of the telephone conversations intercepted in the prison where the applicant was being held. 25. Lastly, the prosecution requested leave to produce new evidence, namely letters and statements from a person suspected of terrorist activities and recordings transmitted by radio microphone from inside a mosque in Milan. 26. On 13 March 2006 the Milan Assize Court of Appeal asked the Constitutional Court to rule on the constitutionality of Article 593 § 2 of the Code of Criminal Procedure. As amended by Law no. 46 of 20 February 2006, that provision permitted the defence and the prosecution to appeal against acquittals only where, after the close of the first-instance proceedings, new evidence had come to light or been discovered. The Assize Court of Appeal stayed the proceedings pending a ruling by the Constitutional Court. 27. In judgment no. 26 of 6 February 2007, the Constitutional Court declared the relevant provisions of Italian law unconstitutional in that they did not allow the prosecution to appeal against all acquittals and because they provided that appeals lodged by the prosecuting authorities before the entry into force of Law no. 46 of 20 February 2006 were inadmissible. The Constitutional Court observed in particular that Law no. 46 did not maintain the fair balance that should exist in a criminal trial between the rights of the defence and those of the prosecution. 28. The first hearing before the Milan Assize Court of Appeal was set down for 10 October 2007. 29. In the meantime, on 11 May 2005, two days after delivery of the Milan Assize Court ’ s judgment, a military court in Tunis had sentenced the applicant in his absence to twenty years ’ imprisonment for membership of a terrorist organisation operating abroad in time of peace and for incitement to terrorism. He was also deprived of his civil rights and made subject to administrative supervision for a period of five years. The applicant asserted that he had not learned of his conviction until its operative part was served on his father on 2 July 2005, when the judgment had already become final. 30. The applicant alleged that his family and his lawyer were not able to obtain a copy of the judgment by which the applicant had been convicted by the Tunis military court. In a letter of 22 May 2007 to the President of Tunisia and the Tunisian Minister of Justice and Human Rights, his representatives before the Court asked to be sent a copy of the judgment in question. The result of their request is not known. B. The order for the applicant ’ s deportation and his appeals against its enforcement and for the issue of a residence permit and/or the granting of refugee status 31. On 4 August 2006, after being imprisoned uninterruptedly since 9 October 2002, the applicant was released. 32. On 8 August 2006 the Minister of the Interior ordered him to be deported to Tunisia, applying the provisions of Legislative Decree no. 144 of 27 July 2005 (entitled “Urgent measures to combat international terrorism” and later converted to statute law in the form of Law no. 155 of 31 July 2005 ). He observed that “it was apparent from the documents in the file” that the applicant had played an “active role” in an organisation responsible for providing logistical and financial support to persons belonging to fundamentalist Islamist cells in Italy and abroad. Consequently, his conduct was disturbing public order and threatening national security. 33. The Minister made it clear that the applicant could not return to Italy except on the basis of an ad hoc ministerial authorisation. 34. The applicant was taken to a temporary holding centre ( centro di permanenza temporanea ) in Milan. On 11 August 2006 the deportation order was confirmed by the Milan justice of the peace. 35. On 11 August 2006 the applicant requested political asylum. He alleged that he had been sentenced in his absence in Tunisia for political reasons and that he feared he would be subjected to torture and “political and religious reprisals”. By a decision of 16 August 2006, the Head of the Milan police authority ( questore ) declared the request inadmissible on the ground that the applicant was a danger to national security. 36. On 6 September 2006 the Director of the non-governmental organisation World Organisation Against Torture (known by its French initials – OMCT) wrote to the Italian Prime Minister to tell him the OMCT was “extremely concerned” about the applicant ’ s situation, and that it feared that, if deported to Tunisia, he would be tried again for the same offences he stood accused of in Italy. The OMCT also pointed out that, under the terms of Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, “No State Party shall expel, return ( ‘ refouler ’ ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. 37. On 12 September 2006 the President of the non-governmental organisation Collective of the Tunisian Community in Europe appealed to the Italian government to “end its policy of mass deportation of Tunisian immigrants [who were] practising adherents of religious faiths”. He alleged that the Italian authorities were using inhuman methods and had grounded a number of decisions against Tunisians on their religious convictions. He went on to say that it was “obvious” that on arrival in Tunisia the persons concerned would be “tortured and sentenced to lengthy terms of imprisonment, on account of the fact that the Italian authorities falsely suspect them of terrorism”. The applicant ’ s name appeared in a list of persons at imminent risk of expulsion to Tunisia which was appended to the letter of 12 September 2006. 38. The Chief Constable ’ s decision of 16 August 2006 (see paragraph 35 above) was served on the applicant on 14 September 2006. The applicant did not appeal. However, on 12 September 2006 he had produced documents, including the OMCT ’ s letter of 6 September 2006 and the reports on Tunisia by Amnesty International and the US Department of State, requesting that these be passed on to the local refugee status board. On 15 September 2006 the Milan police authority informed the applicant orally that as his asylum request had been refused the documents in question could not be taken into consideration. 39. On 14 September 2006, pleading Rule 39 of the Rules of Court, the applicant asked the Court to suspend or annul the decision to deport him to Tunisia. On 15 September 2006 the Court decided to ask the Government to provide it with information, covering in particular the question whether the applicant ’ s conviction by the Tunis military court was final and also whether in Tunisian law there was a remedy whereby it was possible to obtain the reopening of proceedings or a retrial. 40. The Government ’ s reply was received at the Registry on 2 October 2006. According to the Italian authorities, in the event of a conviction in the absence of the accused, Tunisian law gave the person convicted the right to have the proceedings reopened. The Government referred in particular to a fax of 29 September 2006 from the Italian ambassador in Tunis stating that, according to the information supplied by the Director of International Cooperation at the Tunisian Ministry of Justice, the applicant ’ s conviction was not final since a person convicted in his absence could appeal against the relevant judgment. 41. On 5 October 2006 the Court decided to apply Rule 39. It asked the Government to stay the applicant ’ s expulsion until further notice. 42. The maximum time allowed for the applicant ’ s detention with a view to expulsion expired on 7 October 2006 and he was released on that date. However, on 6 October 2006 a new deportation order had been issued against him. On 7 October 2006 this order was served on the applicant, who was then taken back to the Milan temporary holding centre. As the applicant had stated that he had entered Italy from France, the new deportation order named France as the receiving country, not Tunisia. On 10 October 2006 the new deportation order was confirmed by the Milan justice of the peace. 43. On 3 November 2006 the applicant was released because fresh information indicated that it was impossible to deport him to France. On the same day the Milan Assize Court of Appeal ordered precautionary measures, to take effect immediately after the applicant ’ s release: he was forbidden to leave Italian territory and required to report to a police station on Mondays, Wednesdays and Fridays. 44. In the meantime, on 27 September 2006, the applicant had applied for a residence permit. On 4 December 2006 the Milan police authority replied that this application could not be allowed. It was explained that a residence permit could be issued “in the interests of justice” only at the request of the judicial authorities, where the latter considered that the presence of an alien in Italy was necessary for the proper conduct of a criminal investigation. The applicant had in any case been forbidden to leave Italian territory and was therefore obliged to stay in Italy. Moreover, to obtain a residence permit it was necessary to produce a passport or similar document. 45. Before the Court the applicant alleged that the Tunisian authorities had refused to renew his passport, so that all his further attempts to regularise his situation had come to nothing. 46. On a date which has not been specified, the applicant also asked the Lombardy RAC ( Regional Administrative Court ) to set aside the deportation order of 6 October 2006 and stay its execution. 47. In a decision of 9 November 2006, the Lombardy RAC held that there was no cause to rule on the application for a stay of execution and ordered the file to be transmitted to the Lazio RAC, which had the appropriate territorial jurisdiction. 48. The Lombardy RAC pointed out among other observations that the European Court of Human Rights had already requested a stay of execution of the deportation order and had consequently provided redress for any prejudice the applicant might allege. 49. According to the information supplied by the applicant on 29 May 2007, the proceedings in the Lazio RAC were still pending on that date. 50. On 1 8 January 2007 the applicant sent a memorial to the Milan police authority pointing out that the European Court of Human Rights had requested a stay of execution of his deportation on account of a real risk that he would be subjected to treatment contrary to Article 3 of the Convention. He therefore asked for a hearing before the local refugee status board with a view to being granted political asylum. According to the information supplied by the applicant on 11 July 2007, there had been no reply to his memorial by that date. In a memorandum of 20 July 2007, the Italian Ministry of the Interior stated that the memorial of 18 January 2007 could not be regarded as a new asylum request or as an appeal against the refusal given by the Milan Chief Constable on 16 August 2006 (see paragraph 35 above). C. The diplomatic assurances requested by Italy from Tunisia 51. On 29 May 2007 the Italian embassy in Tunis sent a note verbale to the Tunisian government, requesting diplomatic assurances that if the applicant were to be deported to Tunisia he would not be subjected to treatment contrary to Article 3 of the Convention and would not suffer a flagrant denial of justice. 52. The note in question, written in French, reads as follows: “The Italian embassy presents its compliments to the Ministry of Foreign Affairs and, following the meeting between the Italian ambassador Mr Arturo Olivieri and his Excellency the Minister of Justice and Human Rights Mr Béchir Tekkari, on the occasion of the visit of the Italian Minister of Justice Mr Clemente Mastella, on 28 May 2007, has the honour to request the invaluable cooperation of the Tunisian authorities in reaching a positive development in the following case. The Tunisian national Nassim Saadi, born in Haidra ( Tunisia ) on 30 November 1974, was served with an order for his deportation from Italy, issued by the Ministry of the Interior on 8 August 2006. After the above order had been issued, Mr Saadi lodged an application with the European Court of Human Rights on 14 September 2006, requesting and obtaining the decision to stay execution of the deportation order. His application is based on the argument that, after he had been tried in his absence, he was sentenced to twenty years ’ imprisonment for terrorist-related offences, in a judgment given by the Tunis military court on 11 May 2005, served on Mr Saadi ’ s father on 2 July 2005. Because of his conviction, Mr Saadi contends that if the deportation order were to be enforced he would run the risk of being imprisoned in Tunisia on his arrival, on the basis of an unfair trial, and of being subjected to torture and inhuman and degrading treatment (please find enclosed a copy of the document by which the judgment was served supplied by Mr Saadi ). In order to gather all the information necessary to assess the case, the European Court of Human Rights has asked the Italian government to supply a copy of the judgment and wishes to ascertain whether the Italian government intends, before deporting Mr Saadi, to seek diplomatic guarantees from the Tunisian government. In the light of the foregoing, the Italian embassy, counting on the sensitivity of the Tunisian authorities on the question, has the honour to formulate, subject to the judicial prerogatives of the Tunisian State, the following urgent request for guarantees, as an indispensable formal prerequisite for the solution of the case now pending: – if the information given by Mr Saadi concerning the existence of a judgment of 11 May 2005 in which he was found guilty by the Tunis military court corresponds to the truth, please send a full copy of the judgment in question (before 11 July 2007, the date of the hearing before the Court) and confirm that he has the right to appeal, and to be judged by an independent and impartial tribunal, in accordance with a procedure which, taken as a whole, complies with the principles of a fair and public trial; – please give assurances that the fears expressed by Mr Saadi of being subjected to torture and inhuman and degrading treatment on his return to Tunisia are unfounded; – please give assurances that if he were to be committed to prison he would be able to receive visits from his lawyers and members of his family. In addition, the Italian embassy would be grateful if the Tunisian authorities would keep it informed of the conditions of Mr Saadi ’ s detention if he were to be committed to prison. The way this case is determined will have significant implications for future security policy. The information mentioned above, which the European Court of Human Rights has requested from the Italian government, are indispensable if the deportation is to go ahead. To a certain extent, this case forms a precedent (in relation to numerous other pending cases) and – we are convinced – a positive response by the Tunisian authorities will make it easier to carry out further expulsions in future. While perfectly aware of the delicate nature of the subject, the Italian embassy counts on the understanding of the Tunisian authorities, hoping that their reply will be in the spirit of effective action against terrorism, as part of the friendly relations between our two countries.” 53. The Italian government observed that such assurances had never before been requested from the Tunisian authorities. 54. On 4 July 2007 the Tunisian Ministry of Foreign Affairs sent a note verbale to the Italian embassy in Tunis. Its content was as follows: “The Minister for Foreign Affairs presents his compliments to the Italian ambassador in Tunis and, referring to the ambassador ’ s note verbale no. 2533 of 2 July 2007 concerning Nassim Saadi, currently imprisoned in Italy, has the honour to inform the ambassador that the Tunisian government confirms that it is prepared to accept the transfer to Tunisia of Tunisians imprisoned abroad once their identity has been confirmed, in strict conformity with the national legislation in force and under the sole safeguard of the relevant Tunisian statutes. The Minister for Foreign Affairs would like once again to convey to the Italian ambassador in Tunis his sincere regards .” 55. A second note verbale, dated 10 July 2007, was worded as follows: “The Minister for Foreign Affairs presents his compliments to the Italian ambassador in Tunis and, referring to his note verbale no. 2588 of 5 July 2007, has the honour to confirm to him the content of the Ministry ’ s note verbale no. 511 of 4 July 2007. The Minister for Foreign Affairs hereby confirms that the Tunisian laws in force guarantee and protect the rights of prisoners in Tunisia and secure to them the right to a fair trial. The Minister would point out that Tunisia has voluntarily acceded to the relevant international treaties and conventions. The Minister for Foreign Affairs would like once again to convey to the Italian ambassador in Tunis his sincere regards. ” D. The applicant ’ s family situation 56. According to the applicant, in Italy he lives with an Italian national, Mrs V., whom he married in a Muslim marriage ceremony. They have an eight-year-old child (born on 22 July 1999 ), an Italian national, who attends school in Italy. Mrs V. is unemployed and is not at present in receipt of any family allowance. She suffers from a type of ischaemia. 57. According to a memorandum of 10 July 2007 from the Ministry of the Interior, on 10 February 2007 the applicant married, in a Muslim marriage ceremony, a second wife, Mrs G. While officially resident in via Cefalonia, Milan, at the address occupied by Mrs V., the applicant is said to be separated de facto from both his wives. Since the end of 2006 he has been habitually resident in via Ulisse Dini, Milan, in a flat which he apparently shares with other Tunisians. III. INTERNATIONAL TEXTS AND DOCUMENTS A. The cooperation agreement on crime prevention signed by Italy and Tunisia and the association agreement between Tunisia, the European Union and its member States 61. On 13 December 2003 the Italian and Tunisian governments signed in Tunis an agreement on crime prevention in which the Contracting Parties undertook to exchange information (particularly with regard to the activities of terrorist groups, migratory flows and the production and use of false documents) and to work towards harmonisation of their domestic legislation. Articles 10 and 16 of the agreement read as follows: Article 10 “The Contracting Parties, in accordance with their respective national legislation, agree that cooperation to prevent crime, as contemplated in the present agreement, will extend to searching for persons who have sought to evade justice and are responsible for criminal offences, and recourse to expulsion where circumstances so require and in so far as compatible with application of the provisions on extradition.” Article 16 “The present agreement is without prejudice to rights and obligations arising from other international, multilateral or bilateral agreements entered into by the Contracting Parties.” 62. Tunisia also signed in Brussels, on 17 July 1995, an association agreement with the European Union and its member States. The agreement mainly concerns cooperation in the commercial and economic sectors. Article 2 provides that relations between the Contracting Parties, like the provisions of the agreement itself, must be based on respect for human rights and democratic principles, which form an “essential element” of the agreement. B. Articles 1, 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees 63. Italy is a party to the 1951 Convention on the Status of Refugees. Articles 1, 32 and 33 of this Convention read as follows. Article 1 “For the purposes of the present Convention, the term ‘ refugee ’ shall apply to any person who ... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” Article 32 “ 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law ...” Article 33 “ 1. No Contracting State shall expel or return ( ‘ refouler ’ ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” C. Guidelines of the Committee of Ministers of the Council of Europe 64. On 11 July 2002, at the 804 th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted guidelines on human rights and the fight against terrorism. Point IV of the guidelines, entitled “Absolute prohibition of torture”, reads as follows: “The use of torture or of inhuman or degrading treatment or punishment is absolutely prohibited, in all circumstances, and in particular during the arrest, questioning and detention of a person suspected of or convicted of terrorist activities, irrespective of the nature of the acts that the person is suspected of or for which he/she was convicted.” According to point XII § 2 of this document, “It is the duty of a State that has received a request for asylum to ensure that the possible return ( ‘ refoulement ’ ) of the applicant to his/her country of origin or to another country will not expose him/her to the death penalty, to torture or to inhuman or degrading treatment or punishment. The same applies to expulsion.” D. Amnesty International report on Tunisia 65. In a report concerning the situation in Tunisia in 2006, Amnesty International noted that following a large number of unfair trials at least twelve persons facing terrorism charges had been sentenced to lengthy prison sentences. Cases of torture and ill-treatment continued to be reported. Hundreds of political prisoners sentenced after unfair trials remained in prison after more than ten years and their state of health was said to have deteriorated. A group of 135 prisoners had been released as a result of an amnesty; they had been imprisoned for more than fourteen years after being convicted in unfair trials of belonging to the banned Islamist organisation Ennahda. Some of these prisoners were in poor health as a result of harsh prison conditions and torture they had undergone before standing trial. 66. In December 2006 there had been exchanges of fire to the south of Tunis between the police and alleged members of the Salafist Group for Preaching and Combat. Dozens of people had been killed and police officers had been injured. 67. In June 2006 the European Parliament had called for a meeting of the European Union and Tunisia to discuss the human rights situation in the country. In October 2006 the European Union had criticised the Tunisian government for cancelling an international conference on employment and the right to work. 68. As regards the “war on terror”, Amnesty International noted that no answer had been given by the Tunisian authorities to a request to visit the country made by the United Nations Special Rapporteur on the promotion and protection of human rights. Persons suspected of terrorist activities had been arrested and tried under what was described as the “controversial” 2003 anti-terrorism law. This anti-terrorism law and the Code of Military Justice had been used against Tunisians repatriated against their will from Bosnia and Herzegovina, Bulgaria and Italy, who were accused of belonging to terrorist organisations operating abroad. In such cases, sometimes decided by the military courts, lawyers ’ contact with their clients had been subjected to constantly increasing restrictions. The report mentioned cases of prisoners being held incommunicado or being tortured while in police custody; those referred to included Mr Hicham Saadi, Mr Badreddine Ferchichi (who had been deported from Bosnia and Herzegovina ) and six members of the “ Zarzis group”. 69. Amnesty International went on to criticise severe restrictions of the right to freedom of expression and a risk of harassment and violence against human rights defenders and their families, women wearing Islamic headscarves, and opponents and critics of the government. 70. On the question of the independence of the judiciary, Amnesty International noted that lawyers had publicly protested against a bill then before Parliament creating the “Higher Institute for Lawyers”, to be responsible for training future lawyers (which had previously been done by the Lawyers ’ Association and the Association of Tunisian Judges). In October 2006 the Head of the European Commission delegation in Tunis had publicly criticised the slow pace of political reform and called for better training for judges and lawyers to consolidate the independence of the judiciary. Judges required the permission of the Secretary of State for Justice to leave the country. 71. On 19 June 2007 Amnesty International issued a statement concerning the applicant which reads as follows: “ Amnesty International is concerned that Nassim Saadi would be at risk of torture or other grave human rights violations, should he be removed to Tunisia by the Italian authorities. This concern is based upon our continuous monitoring of human rights violations in Tunisia, including violations committed against people forcibly returned from abroad within the context of the ‘ war on terror ’. Nassim Saadi was sentenced in absentia by the Permanent Military Court in Tunis to twenty years ’ imprisonment on charges of belonging to a terrorist organisation operating abroad at a time of peace and incitement to terrorism. Although he will be afforded a retrial before the same military court, military courts in Tunisia violate a number of guarantees for a fair trial. The military court is composed of a presiding judge and four counsellors. Only the president is a civilian judge. There are restrictions on the right to a public hearing. The location of the court in a military compound effectively limits access to the public. Individuals convicted before a military court can seek review only before the Military Court of Cassation. Civilian defendants have frequently reported that they had not been informed of their right to legal counsel or, particularly in the absence of a lawyer, have not realised that they were being questioned by an examining judge as he was in military uniform. Defence lawyers have restrictions placed on access to their clients ’ files and are obstructed by not being given information about the proceedings such as the dates of hearings. Unlike the ordinary criminal courts, military courts do not allow lawyers access to a register of pending cases. ( For more information see Amnesty International report, Tunisia : the cycle of Injustice, AI Index MDE 30/001/2003. ) The Tunisian authorities also continue to use the controversial 2003 anti-terrorism law to arrest, detain and try alleged terrorist suspects. Those convicted have been sentenced to long prison terms. The anti-terrorism law and provisions of the Military Justice Code have also been used against Tunisian nationals who were returned to Tunisia against their will by authorities in other countries, including Bosnia and Herzegovina, Bulgaria and Italy. Those returned from abroad were arrested by the Tunisian authorities upon arrival and many of them were charged with links to ‘ terrorist organisations ’ operating outside the country. Some were referred to the military - justice system. People who have been recently returned to Tunisia from abroad have been held in incommunicado detention, during which time they have been subjected to torture and other ill-treatment. They have also been sentenced to long prison sentences following unfair trials. In this connection, we provide the following case information for illustration: – Houssine Tarkhani was forcibly returned from France to Tunisia on 3 June 2007 and detained on arrival. He was kept in secret detention in the State Security Department of the Ministry of Interior in Tunis for ten days, during which he was reportedly tortured or otherwise ill-treated. He is currently detained in Mornaguia prison awaiting further investigation. Houssine Tarkhani left Tunisia in 1999, and subsequently lived in Germany and, between 2000 and 2006, in Italy. He was arrested at the French-German border on 5 May 2007 as an irregular migrant, and held in a detention centre in the French city of Metz, pending the execution of an expulsion order. On 6 May he was brought before a judge, who authorised his detention for a further fifteen days, and informed him that he was being investigated by the French police on suspicion of ‘ providing logistical support ’ to a network which assists individuals to travel to Iraq to take part in the armed conflict with the US-led coalition forces there – an allegation which he denies. No charges were ever brought against him in France. On the same day, he made a claim for asylum and on 7 May 2007 was taken to the detention centre at Mesnil-Amelot to be detained while his asylum claim was processed. Houssine Tarkhani ’ s application for asylum had been assessed under an accelerated procedure ( ‘ procèdure prioritaire ’ ), and was rejected on 25 May. Although he appealed before the Commission des Recours des Réfugiés ( CRR ), Refugees Appeals Board, decisions taken under the accelerated procedure are not delayed while appeals to the CRR are considered, and people who have appealed may be forcibly returned before their appeal has been ruled on. Houssine Tarkhani also made appeals against the decision to the administrative court, but these have failed. – In May 2004, Tunisian national Tarek Belkhirat was returned against his will to Tunisia from France after his request for asylum was rejected. He was arrested upon his return to Tunisia and charged under the 2003 anti-terrorism law. In February 2005, the Council of State ( Conseil d ’ Etat ), the highest administrative court in France, quashed the order to expel Tarek Belkhirat to Tunisia. In March 2005, he was sentenced in an unfair trial in Tunisia to ten years ’ imprisonment for membership of the Tunisian Islamist Front, charges for which he had already served a thirty-six month prison sentence in France. The sentence was reduced to five years on appeal in October 2005. He remains in prison in Tunisia. – Tunisian national Adil Rahali was deported to Tunisia from Ireland in April 2004 after his application for asylum was refused. He was arrested on arrival in Tunisia and taken to the State Security Department of the Ministry of the Interior, where he was held in secret detention for several days and reportedly beaten, suspended from the ceiling and threatened with death. Adil Rahali, who had worked in Europe for more than a decade, was charged under the 2003 anti-terrorism law with belonging to a terrorist organisation operating abroad. No investigation is known to have been conducted into Adil Rahali ’ s alleged torture despite the fact that his lawyer filed a complaint. In March 2005, Adil Rahali was convicted on the basis of ‘ confessions ’ extracted under torture and sentenced under anti-terrorism legislation to ten years ’ imprisonment. This sentence was reduced to five years on appeal in September 2005. He remains in prison in Tunisia. – In April 2004, seven young men were convicted, following an unfair trial, of membership of a terrorist organisation, possessing or manufacturing explosives, theft, using banned websites and holding unauthorised meetings. Two others were convicted in absentia. They were among dozens of people arrested in Zarzis, southern Tunisia, in February 2003, most of whom had been released the same month. The trial failed to respect international fair - trial standards. According to defence lawyers, most arrest dates in police reports were falsified, and in one case the place of arrest was falsified. There were no investigations into allegations that the defendants were beaten, suspended from the ceiling and threatened with rape. The convictions rested almost entirely on confessions extracted under duress. The defendants denied all charges brought against them in court. In July 2004 the Tunis Appeal Court reduced the sentences of six of them from nineteen years and three months to thirteen years ’ imprisonment. Their appeal was rejected by the Court of Cassation in December 2004. Another defendant, who was a minor at the time of the arrest, had his sentence reduced to twenty-four months in prison. They were all released in March 2006 following a presidential pardon. The human rights violations that were perpetrated in these cases are typical of the sort of violations that remain current in Tunisia and affect people arrested inside the country as well as those returned from abroad in connection with alleged security or political offences. We consider, therefore, that Nassim Saadi would be at serious risk of torture and unfair trial if he were to be transferred to the custody of the Tunisian authorities. ” 72. A similar statement was issued by Amnesty International on 23 July 2007. E. Report on Tunisia by Human Rights Watch 73. In its 2007 report on Tunisia, Human Rights Watch asserted that the Tunisian government used the threat of terrorism and religious extremism as a pretext for repression of their opponents. There were constant, credible allegations of the use of torture and ill-treatment against suspects in order to obtain confessions. It was also alleged that convicted persons were deliberately subjected to ill-treatment. 74. Although many members of the proscribed Islamist party Ennahda had been released from prison after an amnesty, there were more than 350 political prisoners. There had been mass arrests of young men, who had then been prosecuted under the 2003 anti-terrorism law. Released political prisoners were monitored very closely by the authorities, who refused to renew their passports and denied them access to most jobs. 75. According to Human Rights Watch, the judicial system lacked independence. Investigating judges questioned suspects without their lawyers being present, and the prosecution and judiciary turned a blind eye to allegations of torture, even when made through a lawyer. Defendants were frequently convicted on the basis of confessions made under duress or of statements by witnesses whom they had not been able to examine or have examined. 76. Although the International Committee of the Red Cross was continuing its programme of visits to Tunisian prisons, the authorities were refusing independent human rights defence organisations access to places of detention. The undertaking given in April 2005 to allow visits by Human Rights Watch had remained a dead letter. 77. The 2003 anti-terrorism law gave a very broad definition of “terrorism”, which could be used to prosecute persons merely for exercising their right to political dissent. Since 2005 more than 200 persons had been charged with planning to join jihadist movements abroad or organising terrorist activities. The arrests had been carried out by plain-clothes police and the families of those charged had been left without news of their relatives for days or sometimes weeks. During their trials these defendants had overwhelmingly claimed the police had extracted their statements under torture or threat of torture. These defendants had been sentenced to lengthy terms of imprisonment, but it had not been established that any of them had committed a specific act of violence or that they possessed weapons or explosives. 78. In February 2006, six persons accused of belonging to the “ Zarzis ” terrorist group had been granted a presidential amnesty after serving three years of their prison sentences They had been convicted on the basis of confessions which they alleged they had been forced into making, and of the fact that they had copied from the Internet instructions for making bombs. In 2005 Mr Ali Ramzi Bettibi had been sentenced to four years ’ imprisonment for cutting and pasting on an online forum a statement by an obscure group threatening bomb attacks if the President of Tunisia agreed to host a visit by the Prime Minister of Israel. 79. Lastly, Human Rights Watch reported that on 15 June 2006 the European Parliament had adopted a resolution deploring the repression of human rights activists in Tunisia. F. Activities of the International Committee of the Red Cross 80. The International Committee of the Red Cross signed an agreement with the Tunisian authorities on 26 April 2005 giving them permission to visit prisons and assess conditions there. The agreement came one year after the authorities ’ decision to permit prison visits by only the International Committee of the Red Cross, an organisation – described as “strictly humanitarian” – which was required to maintain confidentiality about its findings. The agreement between the Tunisian government and the International Committee of the Red Cross concerned all prison establishments in Tunisia, “including remand prisons and police cells”. 81. On 29 December 2005 Mr Bernard Pfefferlé, the regional delegate of the International Committee of the Red Cross for Tunisia/North Africa, said that the Committee had been able to visit “without hindrance” about a dozen prisons and meet prisoners in Tunisia. Mr Pfefferlé said that, since the beginning of the inspection in June 2005, a team from the International Committee of the Red Cross had travelled to nine prisons, two of them twice, and had met half of the prisoners scheduled to be visited. Refusing to give further details, “on account of the nature of [their] agreements”, he nevertheless commented that the agreements in question authorised the International Committee of the Red Cross to visit all prisons and meet prisoners “quite freely and according to [its own] free choice”. G. Report of the US Department of State on human rights in Tunisia 82. In its report on human rights practices published on 8 March 2006, the US Department of State criticised violations of fundamental rights by the Tunisian government. 83. Although there had been no politically motivated killings attributable to the Tunisian authorities, the report commented critically on two cases: Mr Moncef Ben Ahmed Ouahichi had died while in police custody and Mr Bedreddine Rekeii after being released from police custody. 84. Referring to the information gathered by Amnesty International, the US Department of State described the various forms of torture and ill-treatment inflicted by the Tunisian authorities in order to secure confessions. These included: electric shocks; forcing the victim ’ s head under water; beatings with fists, sticks and police batons; hanging from the cell bars until loss of consciousness; and cigarette burns. In addition, police officers sexually assaulted the wives of Islamist prisoners as a means of obtaining information or imposing a punishment. 85. However, these acts of torture were very difficult to prove, because the authorities refused to allow the victims access to medical treatment until the traces of ill-treatment had faded. Moreover, the police and the judicial authorities regularly refused to follow up allegations of ill-treatment, and confessions extracted under torture were regularly admitted as evidence by the courts. 86. Political prisoners and religious fundamentalists were the main targets of torture, which was usually inflicted while the victims were in police custody, particularly inside the Ministry of the Interior. The report referred to a number of cases of torture complained of in 2005 by non-governmental organisations, including the Conseil national pour les libertés en Tunisie and the Association pour la lutte contre la torture en Tunisie. In spite of complaints by the victims, no investigation into these abuses had been conducted by the Tunisian authorities and no agent of the State had been prosecuted. 87. The conditions of incarceration in Tunisian prisons fell well below international standards. Prisoners were held in cramped conditions and had to share beds and toilets. The risk of catching contagious diseases was very high on account of the overcrowding and the unhygienic conditions. Prisoners did not have access to appropriate medical treatment. 88. Political prisoners were often transferred from one establishment to another, which made visits by their families difficult and discouraged any investigation of their conditions of detention. 89. In April 2005, after lengthy negotiations, the Tunisian government had signed an agreement permitting the International Committee of the Red Cross to visit prisons. These visits had begun in June. In December the Red Cross declared that the prison authorities had respected the agreement and had not placed obstacles in the way of the visits. 90. On the other hand, the same possibility was not extended to Human Rights Watch, despite a verbal undertaking given in April 2005 by the Tunisian government. The government had also undertaken to prohibit prolonged periods of solitary confinement. 91. Although explicitly forbidden by Tunisian law, arbitrary arrest and imprisonment occurred. By law, the maximum period allowed for detention in police custody was six days, during which time the prisoners ’ families had to be informed. However, these rules were frequently ignored. Persons detained by the police were very often held incommunicado and the authorities extended the duration of police custody by recording a false date of arrest. 92. The Tunisian government denied that there were any political prisoners, so their exact number was impossible to determine. However, the Association internationale de soutien aux prisonniers politiques had drawn up a list of 542 political prisoners, nearly all of whom were said to be religious fundamentalists belonging to proscribed opposition movements who had been arrested for belonging to illegal organisations which endangered public order. 93. The report mentioned a wide range of infringements of the right to respect for the private and family life of political prisoners and their families, including censorship of correspondence and telephone calls and the confiscation of identity documents. H. Other sources 94. Before the Court, the applicant produced a document from the Association internationale de soutien aux prisonniers politiques concerning the case of a young man named Hichem Ben Said Ben Frej who was alleged to have leapt from the window of a police station on 10 October 2006 shortly before he was due to be interrogated. Mr Ben Frej ’ s lawyer asserted that his client had been savagely tortured and held in the cells of the Ministry of the Interior in Tunis for twenty-four days. Similar allegations are to be found in statements by local organisations for the defence of prisoners ’ and women ’ s rights and in numerous press cuttings. | This case concerned the risk of ill-treatment if the applicant were to be deported to Tunisia, where he claimed to have been sentenced in absentia in 2005 to 20 years’ imprisonment for membership of a terrorist organisation. |
638 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and lives in Budaörs. 6. On 2 January 2008 the applicant, a journalist, published an article in a column entitled “Opinion” of a national daily paper. The subject of the article was the quality of a well-known Hungarian wine variety, a product of T. Zrt, a State-owned corporation, which was, in the applicant’s view, bad and its popularity with Hungarian consumers unjustified. The article contained the following passage: “On nine out of ten occasions, it is a product of T. Zrt, available below 1,000 [Hungarian forints] per bottle, that represents the world’s best wine region, the Hungarian National Pride and Treasure... [and that could make me cry]. Not only because of the taste – although that alone would easily be enough for an abundant cry: sour, blunt and over-oxidised stuff, bad-quality ingredients collected from all kinds of leftovers, grey mould plus a bit of sugar from Szerencs, musty barrel – but because we are still there ...: hundreds of thousands of Hungarians drink [this] shit with pride, even devotion... our long-suffering people are made to eat (drink) it and pay for it at least twice ([because we are talking about a] State-owned company); it is being explained diligently, using the most jerk-like demagogy from both left and right, that this is national treasure, this is how it is supposed to be made, out of the money of all of us, and this is very, very good, and we even need to be happy about it with a solemn face. This is how the inhabitants (subjects) of the country are being humiliated by the skunk regime through half a litre of alcoholised drink. And once again, I would remind everybody of how people were whining back then, saying that foreigners were coming to destroy [T.], buy up the market and make everything multinational and alien-hearted; and then it turned out that those foreigners made gorgeous wine, just like some lucky, resolute and very talented Hungarian family wineries, that they tried to make [T.] world-famous again, because this was their business interest (profit, ugh!); while we as a community are trying to destroy their achievements using State money, lest something finally could be a success. ...” 7. T. Zrt filed a criminal complaint against the applicant. On 2 June 2009 the Budapest II/III District Court convicted him of defamation ( rágalmazás ). The court held that the criticism expressed in the applicant’s article went beyond the boundaries of journalistic opinion and amounted to stating a fact susceptible of harming the reputation of the producer of the wine variety in question. The court refrained from imposing a sentence for a probationary period of one year. 8. On appeal, on 5 November 2009 the Budapest Regional Court reversed this judgment, holding that the incriminated statement was a value judgment and that therefore the applicant was to be convicted for libel ( becsületsértés ) under section 180(1)b of the Criminal Code. The court held that although the applicant was entitled to express his opinion about the wine in question, by characterising it as “shit” – an expression unduly insulting – he had infringed the producer’s right to a good reputation. The court reduced the sanction to a reprimand. 9. On 10 May 2010 the Supreme Court upheld the applicant’s conviction and sentence. | A journalist, the applicant complained about his conviction for libel for harshly criticising the quality of a well-known variety of Hungarian wine, produced by a State-owned company, in a national daily newspaper. The Hungarian courts found that although the applicant was entitled to express his opinion about the wine, characterising it as “shit” was unduly insulting and had infringed the wine producer’s right to a good reputation. |
544 | Violent acts by private individuals | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1977 and lives in Luka. 1. Background to the case 5. On 9 December 1999 a request that minor-offences proceedings be instituted against the applicant was lodged with the Zaprešić Minor Offences Court ( Prekršajni sud u Zaprešiću ), following an allegation that on 8 December 1999 the applicant (then aged twenty-two) and two other individuals had physically attacked three minors, D.E., S.C. and I.Š., by hitting them and kicking them all over their bodies while simultaneously shouting obscenities. They had also damaged a vehicle owned by the mother of one of the victims and had broken one of its front lights and the front bumper. 6. On the evening of 23 April 2000 the above-mentioned D.E. (born on 17 February 1982), S.C. (born on 15 November 1982) and I.Š. (born on 25 July 1982), together with four friends, B.B. (born on 17 January 1983), F.P. (born on 28 May 1982), Z.T. (born on 18 December 1981) and S.T. (born on 25 May 1983), approached the applicant, who was in the company of five friends, and asked him about the incident of 8 December 1999. The applicant then verbally insulted D.E. on the basis of his Serbian origin. A fight ensued. 7. On 24 April and 8 June 2000 the police interviewed the individuals from the above group. Their statements concurred as to the fact that they had been friends with the applicant until the incident of 8 December 1999. On 23 April 2000 they had agreed that they would find the applicant and attack him. When they attacked the applicant, he had pulled out a knife and stabbed Z.T. twice. B.B. had then hit the applicant on the head with a wooden plank and all of them, including the applicant, had left the scene. 8. In his statement of 24 April 2000 I.Š. mentioned that the applicant was of Roma origin, but did not elaborate on this point. The relevant part of the statement reads: “As regards Darko Beganović, he is of Roma origin. He used to mistreat the others on occasions when any of them was alone. He threatened to attack them, which caused fear in the group because they were afraid of him and of such behaviour.” 9. The police also interviewed the applicant and two other neutral witnesses. In his statement the applicant gave no indication that any of the assailants had made reference to his Roma origin. 2. Preliminary stage of the criminal proceedings 10. On 12 June 2000 the applicant, represented by legal counsel, lodged a criminal complaint with the Zagreb State Attorney ’ s Office ( Općinsko državno odvjetništvo u Zagrebu ) against six identified individuals (F.P., Z.T., S.T., S.C., D.E. and B.B.) and a seventh unknown individual, alleging that on 23 April 2000 they had approached and surrounded him and proceeded to hit him until he fell to the ground. They had then started to kick him. When the beating stopped he had stood up, whereupon B.B. had hit him on the head with a wooden plank, causing him to lose consciousness. The attack had caused him severe bodily injuries. Furthermore, on 6 June 2000 the same men had told a certain D.K. to tell the applicant that they were going to burn him alive. The applicant alleged that they had thus committed two criminal offences, namely assault leading to grievous bodily harm and threatening behaviour, and asked for criminal proceedings to be brought against them. 11. In a letter to the Zagreb Police Department dated 24 April 2000 the “Sveti Duh” General Hospital in Zagreb, where the applicant had been examined, described the applicant ’ s injuries as grievous. A letter of discharge dated 29 April 2000 stated that the applicant had been admitted to the hospital on 24 April 2000 and had been diagnosed with concussion and numerous contusions to the head and body. 12. On 4 July 2000 the Zagreb Police Department lodged a criminal complaint with the Zagreb State Attorney ’ s Juvenile Office against B.B., alleging that at around 11 p.m. on 23 April 2000 he and his friends, S.T., D.E., I.Š., Z.T. and S.C., had had a fight with the applicant. The complaint alleged that they had planned the fight beforehand and for that purpose had gone to a location where they expected to find the applicant. After verbally assaulting him, they had beaten him up and kicked him all over his body. One of them, B.B., had hit him on the head with a wooden plank and the applicant had lost consciousness. The complaint also cited the above medical records stating that the applicant had sustained grievous bodily injuries. 13. In submissions of 8 January 2001 the applicant ’ s counsel pointed out that she had lodged a criminal complaint on 12 June 2000 and asked to be informed of the case-file number. She further contended that Articles 2 and 3 of the Convention and Article 6 § 2 of the Framework Convention for the Protection of National Minorities required State authorities to take all steps to identify within a reasonable time the perpetrators of criminal offences against life and limb, and to do so with particular urgency where, as in the case at issue, the victim was a member of a national minority (Roma). She added that all the circumstances indicated that the offence was racially motivated. 14. On 12 March 2001 the Zagreb State Attorney ’ s Office forwarded the applicant ’ s criminal complaint to the Velika Gorica State Attorney ’ s Office. A medical report was prepared by a court expert in forensic medicine. As regards the injuries sustained by the applicant, the relevant part of the report reads: “Examination and treatment of the victim, Beganović Darko, established numerous blows which caused contusions and lacerations to his head and body each of which amounts to a bodily injury (under the previous classification, a lesser bodily injury). The injuries were caused by several blows from one or more hard objects, possibly a fist, a shoe-clad foot or a similar object. If some of the blows were struck by a shoe-clad foot, the victim was most probably bent over or lying on the ground. Since the injuries are not described in detail, it is not possible to establish their number or the number of blows. The blows were of minor to medium intensity. The diagnosis of concussion, although mentioned, was not objectively established in the medical documentation enclosed in the file, and could therefore not be forensically accepted. Taken together, all of the injuries sustained by the victim Beganović Darko amount to a bodily injury.” As regards the injuries sustained by Z.T., the relevant part of the report reads: “Examination of Z.T. revealed two stab wounds on his back. Since these wounds are not described in detail, only an indirect conclusion can be reached, namely that, given the lack of injuries in deeper structures, the wounds were shallow and each of them, taken separately and together, amounted to bodily injury. The injuries were caused by two separate knife stabs or stab blows by a similar object. The stabs were of minor intensity. At the moment of stabbing the victim most probably had his back turned towards the assailant .” 15. On 16 July 2001 the Velika Gorica State Attorney ’ s Office decided not to institute criminal proceedings against B.B. on the ground that the medical analysis of the injuries sustained by the applicant indicated that the diagnosis of concussion could not be accepted forensically, given that all the other injuries were of a lesser nature. Under the relevant domestic law a prosecution for such injuries had to be brought privately by the victim, while a prosecution for grievous bodily injuries had to be initiated by the relevant State authorities. The applicant was thus instructed to proceed accordingly and to ask, within eight days, that a juvenile panel from a competent county court institute criminal proceedings against B.B. 16. In her submissions of 24 August 2001 to the Velika Gorica State Attorney ’ s Office, the applicant ’ s counsel asked for the criminal complaint of 12 June 2000 against the other suspects to be treated as a private prosecution for the offence under Article 98 of the Criminal Code of assault occasioning bodily harm. 17. On 27 August 2001 the applicant ’ s counsel brought a private prosecution against B.B., then a minor, in the Juvenile Council of the Velika Gorica Municipal Court for the offence under Article 98 of the Criminal Code. On 10 October 2001 the Velika Gorica Municipal Court ordered the applicant ’ s counsel to inform it of the date of birth of B.B. and to proceed in accordance with sections 45, 46 and 63 of the Juvenile Courts Act. 18. In her submissions to the Velika Gorica State Attorney ’ s Office of 16 October 2001, the applicant ’ s counsel argued that the decision of 16 July 2001 not to prosecute concerned only the criminal complaint lodged by the police on 4 July 2000, but not the criminal complaint lodged by the applicant on 12 June 2000, since the latter was broader in scope than the police complaint. She further emphasised that the offence against the applicant was racially motivated and asked the Office to act with reasonable expedition. She also argued that the failure to act by the State Attorney ’ s Office had infringed the applicant ’ s constitutional rights to equality and to life, and his rights not to be ill-treated, to have a competent court decide his rights and obligations, to respect for his private and family life and honour, and to protection from violence and hatred based on his nationality, race or religion. She also relied on the Constitutional Act on the Rights and Freedoms of National and Ethnic Minorities in Croatia, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of all Forms of Discrimination and the European Convention on Human Rights. 19. In her submission to the Velika Gorica Municipal Court of the same day the applicant ’ s counsel stated that she was not in a position to find out B.B. ’ s date of birth and that such information had to be requested from the Ministry of the Interior. She also submitted that the order to proceed in accordance with sections 45, 46 and 63 of the Juvenile Courts Act had been unclear. She further argued that the applicant had been prevented from prosecuting his assailants and that it was the practice of the State Attorney ’ s Office not to prosecute acts of violence against citizens of Roma origin. She repeated the contentions she had made to the Velika Gorica State Attorney concerning the infringement of the applicant ’ s rights. 20. In a letter of 5 November 2001, the Velika Gorica Municipal Court invited the applicant ’ s counsel to explain whether the private prosecution of B.B. was to be considered as an application to the juvenile panel of a competent county court under section 62 § 2 of the Juvenile Courts Act. In her reply of 7 November 2001, the applicant ’ s counsel confirmed that this was the case. She further explained that on 16 July 2001 the Velika Gorica State Attorney ’ s Office had given her an erroneous instruction to bring a private prosecution against B.B. since, under the Juvenile Courts Act, the prosecution of a minor could not be brought privately, but only by a competent State Attorney ’ s Office. She further pointed out that she had consulted the case file and that no expert assessment had been conducted of the injuries sustained by the applicant, contrary to the statement by the Velika Gorica State Attorney ’ s Office in its decision not to prosecute of 16 July 2001. She also argued that the offence in question had infringed the applicant ’ s right to life and personal safety, and the prohibition of torture, inhuman and degrading treatment, and that he had had no effective remedy for the protection of those rights. 21. In a letter of 30 December 2001 addressed to the Velika Gorica State Attorney ’ s Office, the Zagreb State Attorney ’ s Office expressed its view that the former body ’ s decision not to prosecute B.B. had been erroneous and contrary to section 45 of the Juvenile Courts Act, which required the competent State Attorney ’ s Office to undertake an official prosecution against minors even in respect of criminal offences otherwise subject to private prosecution. The Zagreb State Attorney ’ s Office indicated that it was necessary to obtain information about B.B. from a competent Social Welfare Centre and then to declare the criminal complaint against B.B. inadmissible, in accordance with section 64 of the Juvenile Courts Act, subject to the condition that B.B. be ordered to undertake one of the measures listed in that provision. 3. Criminal proceedings against B.B. before the Velika Gorica Municipal Court 22. On 4 February 2002 the Zagreb County Court Juvenile Council decided to bring charges of bodily injury under Article 99 of the Criminal Code against B.B. before a juvenile judge. The case file was forwarded to the Velika Gorica Municipal Court in order for it to conduct the proceedings. 23. On 5 July 2002 the Velika Gorica State Attorney ’ s Office lodged a request with the juvenile judge of the Velika Gorica Municipal Court for preparatory proceedings to be instituted against B.B. They asked that B.B. and other participants be interviewed regarding the circumstances of the offence in question. They further requested a fresh report from the Zaprešić Welfare Centre, in order to decide whether there was a need for an educative measure in respect of B.B. 24. The hearing before the Velika Gorica Municipal Court, scheduled for 2 November 2002, was adjourned because counsel for the defendant failed to appear. At the hearing held on 13 January 2003 the applicant gave his evidence. He did not indicate in any way that any of the assailants had made reference to his Roma origin. He stated that on 23 April 200 0 he had been in the company of five of his friends when the assailants approached him and then attacked him. None of his friends had been involved in the incident. 25. On 10 April 2003 the Velika Gorica Social Welfare Centre submitted their report on B.B., drawn up on 3 April 2003. The relevant part of the report reads: “ ... He completed vocational school ... acquiring a qualification as a machine technician. He was temporarily employed ... until he was conscripted to military service in November 2001. He completed his military service in May 2002. Since then he has been unemployed but is registered with the State Employment Office. ... there is no evidence that he has committed any further criminal offences. His cooperation and communication are adequate. He is polite and comes across as a serious young man. ... In view of his personality, the conditions of his upbringing and his current life, we consider that the criminal offence he has been charged with was a misdemeanour attributable to his youth and the consequence of a stressful situation. In view of the fact that this was the first time he had ever been reported as a criminal offender and that, in the meantime, he has committed no further criminal offences, we consider it justifiable to impose an educative measure in the form of a special obligation requiring him to participate in the activities of humanitarian organisations or activities of ecological or communal interest .” 26. A qualified social worker conducted a further interview with B.B. on 10 April 2003 for the purposes of the criminal proceedings against him. The relevant part of the report on the interview reads: “ ... To date there has been no need for social services intervention in the family, including in respect of B., who has no record of crime or misdemeanours. He takes seriously the fact that he has been the subject of proceedings before a court of law, as does his mother, and he expresses concern about the outcome. The above observations lead to the conclusion that B. ’ s general functioning is adequate, being marked by pronounced social and emotional maturity and clear and mature opinions. He shows a responsible attitude towards his obligations. Therefore, should his criminal responsibility be established, the offence could be construed as a misdemeanour arising out of a specific situation, and the imposition of an educative measure in the form of a special obligation to participate in humanitarian activities seems justified.” 27. At the hearing held on 21 May 2003 Z.T., S.T., S.C., I.Š. and F.P. gave evidence as witnesses. None of them made any reference to the applicant ’ s Roma origin. They all stated that they had socialised with the applicant and belonged to the same circle of friends prior to the incident of 8 December 1999. In a decision of 26 May 2003 the Velika Gorica Municipal Court instituted preparatory proceedings against B.B., under section 68(2) of the Juvenile Courts Act. A hearing scheduled for 5 November 2003 was adjourned on the ground that D.E., who was studying in Germany and had been called as a witness, did not appear. He gave his evidence at the hearing held on 12 February 2004. On 12 January 2004 the applicant ’ s counsel submitted an application to expedite the proceedings. 28. On 26 February 2004 the Velika Gorica State Attorney ’ s Office made a proposal that B.B., under sections 6 and 9 of the Juvenile Courts Act, take part in the work of humanitarian organisations or activities of communal or ecological interest instead of having criminal sanctions imposed on him. The proposal was based on the family and personal circumstances of B.B., who had meanwhile become an adult, had successfully completed his schooling and military service and was looking for a job. There had been no further criminal complaints against him. 29. On 22 March and 6 May 2004 the applicant ’ s counsel submitted further applications to expedite the proceedings. On 2 July 2004 the Velika Gorica Municipal Court joined the two sets of proceedings. On 17 January 2005 the applicant ’ s counsel submitted a further application to expedite the proceedings. On 17 June 2005 the applicant ’ s counsel submitted a fresh application to expedite the proceedings to the President of the Velika Gorica Municipal Court, stressing that the prosecution was about to become time-barred. 30. On 21 December 2005 the Velika Gorica Municipal Court discontinued the proceedings against B.B. on the ground that the prosecution for the offence with which he was charged had become time-barred on 23 April 2004. A subsequent appeal by the applicant was dismissed on 9 March 2006 by the Velika Gorica County Court. 4. Criminal proceedings against F.P., Z.T., S.T., S.C. and D.E. following the applicant ’ s private subsidiary indictment 31. On 30 September 2002 the Velika Gorica State Attorney ’ s Office declared the applicant ’ s criminal complaint of 12 June 2000 inadmissible in respect of F.P., Z.T., S.C. and D.E. as, under the relevant domestic law, a prosecution for bodily harm had to be brought privately by the victim. As to the alleged threat, D.K., in a statement to the State Attorney ’ s Office, denied telling the applicant that any such threat had been made. The applicant was informed of his right to take over the prosecution as a subsidiary prosecutor and to lodge a private subsidiary indictment with the Velika Gorica Municipal Court or to request an investigation through the Zagreb County Court. 32. On 11 November 2002 the applicant, represented by counsel, lodged a private subsidiary indictment against five suspects (all of the assailants but B.B. and the one unidentified assailant) with the Velika Gorica Municipal Court for the offences set out in Articles 98 and 99 of the Criminal Code, namely causing bodily harm and causing grievous bodily harm. He also asked for these proceedings to be joined with those already pending before the same court against B.B. 33. On 29 September 2003 the Municipal Court asked the Zaprešić Social Welfare Centre to prepare reports on the defendants. 34. The relevant part of the report on S.T., drawn up on 28 October 2003, reads: “ ... he dropped out of high school and in October this year enrolled in a training course for security guards ... which he plans to complete by June 2004. He has less time for leisure because he is attending classes and assisting in renovation work on the family home. S. greets others and communicates with them politely. His hygiene habits are appropriate to his age. He smokes and drinks alcoholic drinks occasionally. In a decision of the [Velika Gorica Municipal] Court ... of 22 November 2001 an educative measure was imposed on him in the form of close care and supervision and a special obligation to undergo specialised medical treatment or treatment for drug and other addictions. S. carried out the above special obligation in Zagreb City Centre for the Prevention of Addictions, although there were difficulties in respect of his frequency of ... attendance. The educative measure consisting of close care and supervision was implemented, although there were difficulties related to regular communication and performance of the programme tasks. S. lives with his parents and brother Z. ... The parents cared for the children ’ s basic needs according to their abilities. However, they lacked the capacity to face up to the developmental difficulties [of children]. Becoming aware of their helplessness in bringing up their children and their lack of authority, they became discouraged. The family live in their own house ... where they moved six year ago after living in a flat ... S. has not adapted well to rural life. As regards the question of criminal proceedings, we propose that a special obligation be imposed in the form of participation in humanitarian activities.” 35. The relevant part of the report on F.P., drawn up on 17 November 2003, reads: “ ... In June 1998, as the driver of a vehicle, [he had] a road accident in which he sustained multiple contusions to his head and lungs. He was hospitalised ... He was unconscious for twelve days. ... As a consequence ... he had a mild motor skills and speech disorder and frequent headaches. ... His current health is good. He completed high school ... and obtained a qualification as a waiter ... he then also completed training as a lorry driver and a driver of vehicles for the transport of dangerous materials. For a period of time he worked as a waiter and in the past seven months he has worked as a driver. ... He did not perform military service. He lives with his parents and is not married. He cooperates well and communicates adequately. The records of this centre show that in 1998 preliminary proceedings were conducted against the then minor F. in the Zagreb Municipal Court in connection with the criminal offence of causing a road accident. The proceedings were terminated [without a conviction] since the court applied the principle of appropriateness [of criminal punishment]. He has not committed any further criminal offences. On the basis of the above we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest .” 36. The relevant part of the report on D.E., drawn up on 17 November 2003, reads: “We have not been able to contact the above-mentioned young adult directly. Instead, we conducted a telephone conversation with D., who indicated that he is currently resident in Germany with his mother and studying computer science. ... The records of this Centre show that D. has not committed any further criminal offence nor is there any record of any other asocial behaviour. On the basis of the above we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest .” 37. The relevant part of the report on Z.T., drawn up on 26 November 2003, reads: “ ... he dropped out of a [vocational] high school he had attended until the third grade. ... In 2001 he completed his military service, and after returning to his family decided to continue his education and enrolled in evening classes in the same [vocational] school, in order to obtain a qualification in electronics. Currently he is about to complete his education, and needs only to pass the final exams. Meanwhile, Z. has been working part-time and since last May has been employed in the Croatian Institute for Construction Works ... He is unmarried and lives with his parents. According to the records of this Centre he has not committed any further criminal offences. He cooperates well and communicates adequately. He comes across as a serious young man. ... On the basis of the above, we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest .” 38. The relevant part of the report on S.C., drawn up on 2 December 2003, reads: “ ... he completed vocational school on schedule and graduated in 1999. After graduation he was unemployed since he could not find a job, but he helped his parents [on their] agricultural [land]. In 2001 he completed his military service. Currently, he is employed in a construction firm ... He states that, owning to his work, he does not have much leisure time, which he then spends resting or helping his parents. According to the information of this Centre he has not committed any further criminal offences in the meantime. He cooperates well and comes across as a serious young man. ... On the basis of the above, we consider, should his criminal responsibility be established, that application of the Juvenile Courts Act is justified, and we propose that a special obligation be imposed in the form of participation in the activities of humanitarian organisations or activities of ecological or communal interest .” 39. The first hearing, scheduled for 9 March 2004, was adjourned since only one of the five defendants appeared. On 22 March and 6 May 2004 the applicant ’ s counsel submitted further applications to expedite the proceedings. 40. On 2 July 2004 the Velika Gorica Municipal Court joined the two sets of proceedings. At a hearing on 28 October 2005 the presiding judge served a copy of the applicant ’ s subsidiary private indictment on the defendants and scheduled the next hearing for 8 March 2006. On 21 December 2005 the Velika Gorica Municipal Court severed the proceedings. On 11 May 2006 the Velika Gorica Municipal Court discontinued the proceedings against the remaining defendants, on the ground that the prosecution of the offences with which they were charged had become time-barred on 23 April 2004. 5. Civil proceedings 41. On 9 April 2002 the applicant, represented by legal counsel, brought a civil action against nine defendants (the five identified perpetrators of the acts of violence against the applicant and the parents of two of the assailants who had been minors at the time of the attack) in the Zagreb Municipal Court ( Općinski sud u Zagrebu ), seeking damages for the injuries he had sustained. 42. On 11 September 2003 the applicant ’ s counsel submitted an application to expedite the proceedings. At a hearing on 17 September 2003 the Zagreb Municipal Court decided to stay the proceedings pending the outcome of the criminal proceedings against the defendants. 43. In submissions of 28 June 2005, the applicant ’ s counsel complained that the above decision had not been served on her and asked for it to be set aside since the conduct of the criminal proceedings had been ineffective. On 24 February 2006 her submissions were returned to her. When she enquired about the case she was told that on 26 January 2004 it had been transferred to the Zaprešić Municipal Court ( Općinski sud u Zaprešiću ). However, when on 21 July and 20 December 2006 she made enquiries about the case at the latter court she received no reply. 44. On 29 January 2007 the applicant ’ s counsel lodged a complaint about the length of the civil proceedings with the Velika Gorica County Court. This complaint was upheld on 23 August 2007; the County Court awarded the applicant 7,771.20 Croatian kuna (HRK) in compensation and ordered the Municipal Court to adopt a decision within six months. 45. At the hearing held on 19 September 2007 the Municipal Court ordered that a medical report be drawn up. On 17 January 2008 the experts submitted their report of 23 December 2007. The relevant part of the report reads: “The plaintiff received initial medical assistance in the surgical department of the ‘ Sveti Duh ’ General Hospital in Zagreb on 24 April 2000. He received treatment and was discharged from hospital on 29 April 2000, following an improvement [in his condition]. [He was] advised to rest and take painkillers and to [return for] a neurological check-up in ten days, with the results of an EEG examination. When examined by the experts the plaintiff complained of continuing headaches. A clinical examination did not reveal pathological substrates. The medical documentation consists of a discharge letter, without any further check-ups. OPINION: The medical documentation and the patient ’ s condition can be linked to the harmful act in question and the injuries sustained by the plaintiff on that occasion. Pain of significant intensity lasted two days, of medium intensity three days and of minor intensity one week. The remaining minor, occasional pains are caused by increased physical effort. The initial fear was intense and short in duration. Secondary fear (in respect of the injuries and their consequences) of significant intensity lasted a day, of medium intensity three days and of minor intensity a week. The medical documentation and examination of the victim did not reveal any lasting consequences from the harmful act. The plaintiff did not require assistance from other persons.” The civil proceedings before the Zaprešić Municipal Court are still pending. | The applicant complained that following a violent attack against him, the domestic authorities had failed to carry out effective investigation and prosecution. He further alleged that both the attack and the subsequent proceedings showed that he had been discriminated against on account of his Roma origin. |
728 | Exposure to environmental hazards | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1938 and currently lives in Lancashire. 10. In 1953 he joined the British army at 15 years of age. He served with the Royal Engineers between February 1954 and April 1968, when he was discharged for reasons unrelated to the present application. In 1981 he was diagnosed as suffering from hypertension and late onset bronchial asthma and in 1989 he was found to have high blood pressure and chronic obstructive airways disease (bronchitis – COAD). He has not worked since 1992 or thereabouts and is registered as an invalid. A. The Porton Down tests 11. The Chemical and Biological Defence Establishment at Porton Down (“Porton Down”) was established during the First World War in order to conduct research into chemical weapons with a view to advancing the protection of the United Kingdom's armed forces against such weapons. The research included tests of gases on humans as well as on animals. Servicemen who participated in the tests were paid extra wages. 12. The applicant participated in such tests at Porton Down. While there was some debate as to whether he attended in 1962, it was not disputed that he did so in July 1963. His service medical records contained no record of any tests at Porton Down. 1. The tests in 1962 at Porton Down 13. The applicant alleged as follows. In the spring of 1962 he was invited to Porton Down; he was medically examined on arrival; he was asked on three or four occasions to enter a sealed and unventilated room, where he was seated and strapped to a chair; over a period of about six hours, drops of mustard gas were applied to patches of tissue which were then taped to his skin; he was told that, if he was unlucky, he might suffer temporary pain or discomfort but otherwise he was not given any, or any proper, warning about the possible consequences of the tests for his health; once the tests were finished he returned to his unit; there was no further medical examination after he left Porton Down. He relied on a memorandum and file note of 13 November 1989 ( see paragraph 24 below) and on the conclusions in this respect of 14 January 2004 of the Pensions Appeal Tribunal (“ the PAT” – see paragraph 63 below) to substantiate his participation in tests in 1962. 14. While the Government did not deny that participation, they pointed to a number of matters that appeared to militate against such a conclusion: the summary and alphabetical record books did not refer to his attendance in 1962 but only to his attendance in 1963; there was no documentary evidence at all of the 1962 tests whereas certain records existed of his 1963 tests; and if the PAT had accepted his participation in the 1962 tests, this was based solely on his recollections. 2. The tests in 1963 at Porton Down 15. The nerve gas (known as “ G-agent ” or “GF”) test is described in the relevant records as “exposure to single- breath GF”. The applicant alleged that he was told before the test that the experiment “could not harm a mouse”; that he was placed in an air-tight, glass-partitioned cubicle containing a face mask, the mask was placed over his mouth and nose, the fitting was checked and the chamber was sealed; that a loudspeaker informed him that the test was about to begin and to inhale normally; that he felt an immediate tightening of the chest muscles and lungs which wore off after the end of the test; and that blood samples were taken at regular intervals during the following twenty-four hours. The Government submitted that diluted GF vapours were put into a gas chamber and, as the name of the test suggested, volunteers took a single breath of air with calculated doses of GF gas through a tube connected to that chamber, they held their breath for two seconds and then exhaled. 16. The other test involved mustard gas and was described in the records as “H sensitivity and penetration”. According to the applicant, it followed the same format as that in 1962. The Government added the following detail: the mustard gas test was designed to test the performance of protective clothing and was carried out in two parts. The first was a sensitivity test to determine an individual's sensitivity to mustard gas and it involved the placement of a dilute solution of the gas on the participant's upper arm. If after twenty-four hours the test subject had a small red mark, he or she was deemed too sensitive and did not participate any further in the tests. On the other hand, if the participant was not demonstrably sensitive, the second part consisted of putting a drop of dilute mustard gas solution on three samples of protective clothing left in place on the participant's body and the skin under the clothing was examined after six and then twenty-four hours. The participants were monitored before and after the tests. The rooms were properly ventilated, the dosages were small and safe and the tests were carefully planned and controlled. B. The applicant's search for relevant records 17. From 1981 the applicant was medically treated for breathlessness and high blood pressure and by 1987 these problems had significantly worsened. He began to search for his Porton Down records through what he described as “medical” and “political” channels. 1. The “ medical” route 18. In response to his doctor's enquiry, in late 1987 the Ministry of Defence ( MOD ) supplied his doctor with his service medical records on a “medical in confidence” basis. Those records did not refer to the applicant's Porton Down tests. 19. In a letter of 14 November 1989, Porton Down responded to another enquiry from his doctor. The letter was sent on a “medical in confidence” basis and confirmed the applicant's participation in a GF gas test in July 1963. That GF test had been preceded and succeeded by a full medical examination which revealed no abnormality. The letter also referred (inaccurately, as it later emerged – see paragraph 36 below) to seven blood tests conducted after the GF test and to their results and confirmed that “peak flow meter measurements” had also been taken from the applicant and that “breath- holding tests”, a clothing penetration study (apparently, although not expressly noted, the mustard gas tests) and a battery of personality tests were performed. The results of these tests were not included in the letter and no other records supporting the statements made in the letter were enclosed. His doctor's stamp on it indicates that he decided to tell the applicant that all was normal. The applicant persuaded his doctor to show him the letter in 1994. 20. By a letter dated 14 December 1989, a consultant informed the applicant's doctor that he doubted that the applicant's bronchial asthma was caused by his exposure to nerve gas. Further tests were to be carried out. 21. A letter from Dr H. (a professor of environmental toxicology at the University of Leeds and later the court-appointed expert witness in the PAT proceedings – see paragraphs 42-68 below) dated 5 December 1994 to the applicant stated that full and detailed records were required to judge the long - term effects of his participation in the tests and that a long- term epidemiological study would have been useful either to establish that there were long- term effects or to reassure test participants that there were none. His letter of 10 July 1996 repeated his view as to the need for such a study. 22. An internal Porton Down memorandum of 24 November 1997 noted that certain blood - test figures given in the letter to the applicant's doctor of 14 November 1989 were inaccurate. In addition, it was considered that the applicant's description of the tests was roughly consistent with the procedures in the 1960s. While there were no obvious gaps in the 1960s records, it could not be said that the records were complete: the applicant could have attended in 1962 and his name could have been omitted or incorrectly recorded due to a clerical error. 2. The “political” route 23. Inter alia, the applicant carried out a sit-in hunger strike at Porton Down, held a press conference in the House of Commons and requested members of parliament to put parliamentary questions. 24. Between 11 and 14 November 1989, the applicant went on hunger strike outside Porton Down. On 13 November 1989 he spoke with the Secretary of Porton Down. The latter noted in a memorandum of that date that the applicant's description of the tests was strong enough to indicate that he had been there and he recommended a further search of the records. He also recorded in a file note (of the same date) that the applicant's description of his visits to Porton Down in 1962 and 1963 left him with a level of confidence that he had been a volunteer there on both occasions. This led to the letter of 14 November 1989 to the applicant's doctor ( see paragraph 19 above). 25. In January 1994 the applicant formed the Porton Down Volunteers Association with the object of seeking recognition and redress for test participants. The association has over 300 members to date. 26. By a letter dated 26 January 1994, the Chief Executive of Porton Down answered, at the request of the Secretary of State for Defence, a series of questions raised by a member of parliament about chemical and biological warfare testing. The Chief Executive's letter described the test procedure, stating that participants were given a medical examination before and after the tests and recalled for check-ups “from time to time”. It was pointed out that there was no evidence that the health of participants had deteriorated because of their test participation. On 22 June 1994 the Chief Executive confirmed the well-established policy of the MOD of releasing service medical records to a veteran's doctor on a “medical in confidence” basis. The Chief Executive's letter of 7 March 1995 (in response to a parliamentary question to the Minister of State for Defence) noted that the tests did not include any plan for long- term systematic monitoring of participants: any monitoring thereafter was purely ad hoc and sporadic. 27. On 2 February 1994 the applicant wrote to the MOD requesting copies of his medical records and of reports on the relevant tests. The reply of 9 March 1994 from Porton Down recalled the MOD policy of release on a “medical in confidence” basis. The applicant's doctor had been provided with information in 1989 on this basis. It was “entirely up to your own doctor how much or how little of this information he conveys to you”. Further queries from the applicant led to a similar response from Porton Down by letter dated 20 April 1994. 28. On 12 December 1994 Lord Henley stated in the House of Lords that the MOD would continue to send veterans to their doctors and would release medical records as appropriate. Information was provided to doctors to allow proper diagnosis and “would be released, if necessary”. He repeated that there was no evidence over the previous forty years that test participants had suffered harm to their health. 29. In response to a series of parliamentary questions put to the Secretary of State for Defence as to the necessity for a public inquiry, the government's representative replied on 28 February 1995 that there was no evidence that any test participants had suffered any long-term damage to their health in the past four decades. Similar responses as to the lack of evidence of harm to the test participants were given by the Minister of State for Defence in Parliament on 4 April and 2 May 1995 in response to questions concerning the instigation of a study into the long-term health effects of exposure to chemical and biological substances. 30. On 25 April 1995 the applicant and the Labour Party defence spokesman took part in a press conference on the question of Porton Down volunteers and their requirements. 31. Following a meeting between them, on 2 December 1997 the Minister of State for Defence wrote to the applicant. He referred to the concerns of the applicant (and other test participants) that information about the tests was being withheld. He confirmed that this was not the case but rather reflected “less than thorough” record-keeping than would be currently expected. Henceforth all volunteers would be able to obtain access to all the information held on them at Porton Down and steps would be taken to declassify reports so as to make that information more accessible. Certain copies of test documents were enclosed: (a) the alphabetical record book which recorded the applicant's attendance at Porton Down between 13 and 19 July 1963; (b) the summary record book which referred to the two tests carried out on the applicant involving GF and mustard gas and listed the monitoring procedures that were to be carried out on the applicant (chest X -rays, peak flow meter tests, “ x 3 x alcohol ” quiz, breath- holding tests and blood tests); and (c) a report entitled “Effects of Inhaled GF on Man” which described the single breath GF test and contained an analysis of the results of the tests carried out on fifty-six participants, believed to include the applicant's test. It was indicated that these documents were available to any test participant who requested them. This was the first material obtained by the applicant about his participation in the tests. The letter went on to note that much GF-related research work had already been published in open literature or was in the Public Record Office. The review of files to be disclosed would continue and the applicant was given a list of all relevant research papers already published between 1957 and 1987. There was no evidence to date to suggest that any volunteer had suffered long - term adverse effects. A full independent and long-term study of the health impacts of test participation was not, however, considered feasible or practical so none had been or would be carried out. 32. In a letter dated 31 August 1999 to the PAT, Porton Down indicated that it was well acquainted with the applicant, having received numerous communications from him and from members of parliament. 33. By a letter dated 3 May 2001, Porton Down informed the applicant that it had discovered some old laboratory notebooks that included information about the 1963 tests: one book included some previously unavailable details of the mustard patch tests. A pre-exposure chest X -ray and the associated report card were also now available. The applicant was to contact Porton Down if he wanted to see this material or obtain copies. C. Records submitted by the Government in the present application 34. As well as those disclosed with the Minister of State's letter of 2 December 1997, the following documents were also submitted to the Court. 1. With the Government's observations of 9 March 1998 35. The Government indicated that these were all the relevant records that could be traced: (a) an extract from a laboratory record of results of personality and intelligence tests; (b) extracts from laboratory records of GF blood tests – seven blood samples were taken from the applicant; and (c) an explanation of the GF blood - test results. 2. With the Government's observations of 5 April 2001 36. The Government corrected their previous explanations of the seven blood samples (see paragraph 19 above): one was taken on 13 July 1963, a second one prior to the applicant's exposure to GF and the remaining five were taken later. They also corrected other errors relating to information provided in their earlier observations about those tests including the following: “the reference to'25 milligrams of GF [vapour per kilogram of body weight]'appears to have been a typographical error. In fact, calculated doses of GF ranged from 0.16 to 2.84 microgrammes per kilogramme of body weight. ” They also disclosed documents recently discovered following a further search: (a) the applicant's pre-exposure X -ray and its associated report card (see paragraph 33 above); ( b) a report dated August 1942 which described the manner in which the sensitivity tests to mustard gas were performed and entitled “Technique of the Physiological Experiments Carried Out on the Human Subjects at [Porton Down]”; and (c) extracts from a laboratory notebook entitled “Overgarment Tests. Mustard on Men”, relating to mid-July 1963 and referring to the applicant. D. The applicant's domestic proceedings 1. Application for a service pension 37. On 10 June 1991 the applicant claimed a service pension on the grounds of “hypertension/breathing problems” resulting from the Porton Down tests (and, in addition, from his radiation exposure on Christmas Island during the relevant nuclear tests there). The Department of Social Security ( DSS) obtained copies of his service and civilian medical records together with a report from his doctor, which confirmed that he suffered from hypertension, COAD and late onset bronchial asthma. On 28 January 1992 the Secretary of State rejected his claim for a service pension as there was no causal link demonstrated between the tests and those medical conditions. The applicant did not pursue an appeal at that stage. 2. Certificate under section 10 of the Crown Proceedings Act 1947 (“the 1947 Act”) 38. The applicant consulted solicitors in 1994 and obtained legal aid for proceedings. By a letter dated 14 November 1994 to the Secretary of State, his solicitors threatened proceedings, alleging, inter alia, negligence, assault and breach of statutory duty on the part of the MOD, and demanding the release of all medical and laboratory records in the possession of the Secretary of State or of Porton Down as regards the test periods in 1962 and 1963, failing which the applicant would apply to the High Court for pre-action discovery. The applicant's representatives met with MOD representatives in early January 1995 on a “without prejudice” basis and by a letter dated 5 June 1995 requested confirmation from the MOD as to whether a certificate would be issued under section 10 of the 1947 Act (“a section 10 certificate”). 39. By a letter dated 4 July 1995 to the applicant's solicitors, the claims section of the MOD wrote as follows: “War Pensions Agency has informed me that a section 10 certificate in respect of acute bronchitis (1963), a bruised knee and loss of hearing will be regarded as attributable to service and a section 10 certificate will be issued. The other ailments for which [the applicant] claimed a war pension have not been regarded as attributable to service.” 40. On 3 August 1995 a section 10 certificate was signed by the Secretary of State: “In so far as the personal injury of [ the applicant ] is due to anything suffered as a result of his service in the Army between 16 February 1954 and 2 April 1968, I hereby certify that his suffering that thing has been treated as attributable to service for the purpose of entitlement to an award under the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983, which relates to disablement or death of members of the Army.” 41. By a letter dated 8 August 1995, the Treasury Solicitor provided a copy of the section 10 certificate to the applicant's representatives. 3. The Pensions Appeal Tribunals (“ the PAT”) 42. Following the judgment of this Court in McGinley and Egan v. the United Kingdom (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III) and the Government's disclosure of certain documents in their observations in the present case (on 9 March 1998), the applicant requested an adjournment of the present application in order to pursue an appeal to the PAT and, in particular, disclosure of documents under Rule 6 of the Pensions Appeal Tribunals (England and Wales) Rules 1980 (“the PAT Rules”). The present application was adjourned. 43. On 1 June 1998 he lodged his PAT appeal. Since the War Pensions Agency (“ the WPA” – a specialised agency of the Department of Social Security) clarified that a further form was required, on 8 November 1998 the applicant re- lodged the appeal. 44. In February 1999 the applicant received his “ Statement of Case ”. He obtained two extensions of the time-limit for the submission of his “answer” to the Statement of Case (to take advice from an expert chemical pathologist on the documents already disclosed and on those which were also to be requested during the PAT appeal and to consider the intervening observations of the Government in the present application) and he indicated that he would be making an application under Rule 6(1) of the PAT Rules. 45. On 30 July 1999 his answer was submitted to the WPA along with a letter which noted that the answer included an application for disclosure of documents under Rule 6(1) of the PAT Rules : paragraph 18 of the answer set out a list of seventeen categories of document required by him under that rule. 46. On 10 August 1999 the WPA responded by pointing out that enquiries were being made to obtain all the information requested under Rule 6(1) of the PAT Rules. Once received, the WPA would ask for the agreement of the President of the PAT to disclose it. 47. On the same day the WPA wrote to Porton Down enclosing a copy of the applicant's Rule 6 request and asking for the information as soon as possible so that the agreement of the President of the PAT could be obtained. 48. On 14 March and 13 April 2000 the WPA sent the supplementary Statement of Case (now incorporating the supplemental medical evidence) to the applicant and to the PAT, respectively. 49. On 3 August 2000 the President of the PAT responded to the applicant's enquiry, indicating that his case had not been listed as it awaited production of further documentary evidence and the Secretary of State's response. However, since the Rule 6 request should not have been made in the applicant's answer to the Statement of Case, that request had just come to light. The applicant was to confirm to the President if he intended paragraph 18 of his answer to constitute his Rule 6 request and, if so, the President would be grateful to receive any observations that would assist his consideration of the relevance of the documents to the appeal issues. The applicant was also to identify the State department to which a Rule 6 direction should be addressed. 50. On 9 November 2000 the applicant confirmed to the President of the PAT that paragraph 18 of his answer did indeed constitute his Rule 6 request and he made detailed submissions on the matters requested by the President. 51. By a letter dated 13 November 2000, the President of the PAT requested the applicant to submit a draft direction and attend a hearing on it since he was concerned that the wording of some parts of the Rule 6 request appeared to be ambiguous and lacking in clarity. The applicant submitted a draft direction ( essentially listing those documents already included in paragraph 18 of his answer ). 52. By an order dated 1 February 2001, the President of the PAT directed, pursuant to Rule 6(1) of the PAT Rules, disclosure of the scheduled documents by the Secretary of State since the documents “were likely to be relevant to the issues to be determined in the appeal ”. 53. On 6 July 2001 the Secretary of State responded to the direction of the President of the PAT. It was marked “medical in confidence”. It referred to the documents already submitted by the Government to this Court ( see paragraphs 34-36 above). The Secretary of State was unable to give a definitive response to the request for the fifth category of document required (namely, “any scientific or medical reports, whether published or prepared for internal use by Porton Down, the [MOD] or other government departments or agencies of the volunteer studies or experiments in Porton Down between 1957 and 1968 which were similar or related to the studies or experiments in which [the applicant] was involved”). A full and careful review had been undertaken and was a time-consuming process. Many of the documents identified as being possibly relevant to the request were classified. The Secretary of State had asked for an urgent review of the classification to be undertaken and, once the review was completed, he would let the PAT have his full response. Otherwise the Secretary of State provided various explanations of the documents already submitted by the Government to this Court and details of the precise dates on which the applicant would have participated in the tests, of the levels of exposure to gases and of various headings and abbreviations in the disclosed documents. The only documents (additional to those already submitted to this Court) disclosed to the PAT were the applicant's service and payment records, the latter of which included a payment for attendance for a week at Porton Down in July 1963. 54. The MOD's letter was passed to the applicant on 25 July 2001. By a letter dated 19 July 2002, the applicant wrote to the PAT apologising for not having responded and explaining the reasons for the delay. 55. By a letter dated 23 August 2002, the MOD disclosed documents concerning the above-described fifth category: two reports entitled “The feasibility of performing follow- up studies of the health of volunteers attending [Porton Down]” and “The single-breath administration of Sarin”, from which individual names had been blanked out. The feasibility report acknowledged that the records held at Porton Down prior to the late 1970s generally consisted of the name, service number and age of participants at the date of testing but were not “sufficient to allow either a comprehensive morbidity study or mortality study to proceed”. While a study could be carried out on post-1976 test participants, “such a study would be of very limited value and may only serve to draw attention to [Porton Down's] interest in possible long - term health problems experienced by volunteers”. The feasibility report concluded that a comprehensive follow- up study of all volunteers was “impractical”. Porton Down's library catalogue had also mentioned a document entitled “Unique papers relating to early exposure of volunteers to GD [O-Pinacolyl methylphosphonoflouidate, commonly known as Soman] and GF and DM [diphenylaminearsine chloride, commonly known as Adamsite]”. However, a copy of this document could not be located. A letter of 20 August 2002 was also enclosed which certified that nine of the requested documents were “in the nature of departmental minutes or records” and would not therefore be disclosed (Rule 6(1) of the PAT Rules). 56. A hearing was fixed for 3 October 2002. On 27 September 2002 the applicant was obliged to request an adjournment since his counsel had advised that further questions needed to be put to Dr H. On 30 September 2002 the PAT declined to adjourn, indicating that it was unlikely Dr H. could or would prepare a report. 57. On 2 October 2002 the MOD wrote to the PAT and the applicant. While nine documents had been previously certified as non-disclosable, ( letter of 23 August 2002 – see paragraph 55 above), seven of those nine documents could now be disclosed. The MOD had “had the opportunity of re-examining the documents ... with a view to assessing whether [they] could be the subject of voluntary disclosure ... in an effort to ensure that everything that can be disclosed has been disclosed and so as to ensure the maximum openness and the maximum assistance to the [PAT]”. Certain blocking out had been done on some disclosed documents to protect the identities of staff involved and to excise irrelevant material. Two documents could still not be disclosed : the first did not appear “to contain anything of relevance” to the applicant's tests and, in any event, “contained information which remains security sensitive and is not properly subject to voluntary disclosure on security grounds”; and the second required permission from the United States before it could be disclosed. 58. The appeal was scheduled for 3 October 2002. The applicant applied for an adjournment supported by the Veterans Agency (the successor of the WPA – “ the VA”). The PAT decision (delivered on 7 October 2002 ) recorded as follows: “The [PAT] are deeply disturbed that this application has proved necessary as a result of the [applicant's] advisers'failure to consider documents disclosed over a year ago, in a timely fashion. However, since the [VA] also appear to be without documentation and there is confusion by the [applicant] as to whether he also wishes to appeal for hypertension, we have reluctantly decided to allow the adjournment. It is highly unsatisfactory that Court resources have been wasted in this way. To prevent this happening in the future the Tribunal intend to exercise some control over the ongoing progress of the appeal.” The PAT was to clarify with the MOD the status of certain classified documents and the extent to which they could be released to the public, and directed the MOD to provide, by 21 October 2002, disclosure of further documents. The MOD, the VA and the applicant were to notify the PAT by 18 November 2002 of the questions and documents it wanted Dr H. to examine. It was intended that the PAT would add its own questions and submit a composite questionnaire to Dr H. who would report in response to the PAT. The applicant was also to confirm his position as regards the hypertension appeal by 28 October 2002. 59. On 21 October 2002, the MOD disclosed to the PAT three declassified documents. These were forwarded by the PAT to the applicant by a letter dated 8 November 2002, accompanied by a warning that the MOD had released the documents for the purpose of the appeal and that no information in them was to be used for any other purpose without the consent of the MOD. By a letter dated 25 October 2002, the applicant confirmed that his appeal had been intended to cover hypertension also, he explained the reasons for his confusion and he requested an extension of time to so appeal. A hypertension appeal form was lodged with the PAT on 5 December 2002. 60. By a letter dated 3 December 2002, the PAT wrote to Dr H. enclosing the documents disclosed by the MOD ( at that point ) with two sets of questions (prepared by the applicant and the medical member of the PAT). By a letter dated 19 February 2003, Dr H. provided the PAT with a report. The applicant having noted that Dr H. had omitted to respond to the PAT questions, Dr H. did so in a supplemental report sent to the PAT under cover of a letter dated 14 May 2003. 61. In a document dated 14 October 2003, the MOD submitted its comments on Dr H .'s reports. On 16 October 2003 the VA submitted a supplementary Statement of Case. 62. The PAT appeal hearing took place on 23 October 2003. It allowed the hypertension appeal to be heard out of time but, once it became clear that the VA had not processed the appeal documentation filed by the applicant, the PAT reluctantly granted the MOD an adjournment to allow the VA time to “properly consider all the evidential material and prepare a reasoned medical opinion”. The COAD appeal was, however, dismissed. 63. On 14 January 2004 the PAT delivered its written decision. As to the facts, the PAT accepted that the applicant had undergone tests for mustard gas “some time in 1962 as well as the documented tests in July 1963” despite the fact that there was no reference in his service records or in other research records to the 1962 test. The PAT also found “disquieting” the “difficulties” experienced by the applicant in obtaining the records which were produced to the PAT. The PAT also established the following facts: “1. We find that [the applicant] suffered no long - term respiratory effect from skin contact with mustard gas following both tests in 1962 and 1963. 2. We find that [the applicant] was administered only small doses of mustard gas and GF gas which would have resulted in minimal exposure to mustard gas by off - gassing and a limited and transitory reaction to the GF gas. Although no records relating to doses exist, the mustard gas tests were designed to test the suitability of military clothing to exposure and were not a gas test per se. Furthermore, after a fatality at Porton Down in 1953, safeguards were put in place to ensure that volunteers were only exposed to safe dosages. 3. The compelling weight of the evidence is that [the applicant] did not receive, in any of the tests, dosages likely to have long- term effects as described in the research papers. In particular, the [PAT expert], although accepting the possibility that given further research through a long- term follow - up study a link might be found, concludes that there is no evidence to link [the applicant's] exposure to either gases with his present condition. We accept [the PAT expert's] conclusion that, given the limited doses and [the applicant's] minimal immediate reactions, this would rule out a link between the tests and the claimed conditions. 4. We particularly rely on [Dr H .'s] expert report. He has analysed the specific data relevant to [the applicant's] case and considered the conditions for which he is claiming in relation to that specific data. The research papers relied on by the [applicant], although of some evidential value, are very general and speculative. We therefore prefer the evidence, and the conclusions reached by [Dr H .] in his reports. ” The PAT also accepted, as a matter of law, that it was sufficient to show that the proved service event was only one of the causes of the condition even if there were other contributory factors. However, it stated : “2. We do not accept that the lack of possible evidence of other follow-up tests is sufficient to constitute reliable evidence. 3. We find that there is some reliable evidence surrounding the Porton Down tests for which [the applicant] volunteered. However, this evidence tends, if anything, to support the view that there is in fact no link between those tests and [the applicant's] current conditions. The test of reasonable doubt is not therefore met. 4. There is no reliable evidence to suggest a causal link between the tests for either mustard gas or GF gas and the claimed condition. 5. [The PAT expert's] views that'he cannot exclude the possibility'of a link between exposure to GF and/or mustard gas and the claimed condition, does not meet the'reasonable doubt'test. Furthermore, he'rules out'exposure to GF as a cause and deems it'unlikely'that mustard gas is a cause. 6. Finally, [the applicant's counsel] invites us to allow the appeal for reasons which can be summarised as'general fairness'. The [PAT] does not have legislative or discretionary power to do so. The decision of the [PAT] is to disallow the appeal for [COAD].” 64. On 4 February 2004 the applicant applied to the PAT for leave to appeal to the High Court (on the COAD matter) and for a stay of the hypertension appeal then pending before the PAT. On 26 April 2004 leave was refused, the PAT's reserved decision being delivered on 28 April 2004. 65. On 11 May 2004 the applicant applied for leave to appeal to the High Court. On 13 July 2004 leave was granted. 66. The applicant's appeal notice and supporting skeleton argument were submitted on 10 August 2004. The appeal was listed to be heard on 7 October 2004. 67. On 8 October 2004 the High Court allowed the appeal and referred the matter back to the PAT for a further hearing. 68. On 7 March 2005 a directions hearing was held before the PAT. It ordered the hypertension and COAD appeals to be heard together and mutual disclosure of any further documents relevant to the appeal by 18 April 2005. On the latter date the Treasury Solicitor produced a “schedule of disclosure” listing and disclosing eleven documents: apart from three items, the applicant had not seen them before. The Treasury Solicitor maintained that disclosure of most of the documents (including two sets of minutes of meetings which Rule 6 specifies can be withheld) was not obligatory as they were of marginal relevance, noted that all documents had been downgraded to “unclassified” and indicated that the MOD would endeavour to produce the annexes referred to in certain documents. E. Information services and health studies 69. The armed forces have, since 1998, put in place a service to deal with enquiries from Porton Down test participants (“the 1998 Scheme”). The relevant information pamphlet noted that participants could request their test records, that a search would be carried out for references to that person and for additional evidence of actual procedures, that a summary would be provided and that, if the person wanted to go to Porton Down, he or she could obtain the actual records. While the pamphlet noted that reasonably comprehensive records had existed since 1942, individuals had to accept that old records in some cases were very sparse, that record keeping in years gone by was not up to current standards and that in certain cases a person's attendance might not even have been marked. The pamphlet claimed that no participant was worse off after the Porton Down tests. 70. In 2001 the Porton Down Volunteers Medical Assessment Programme was established by the MOD to investigate health concerns of Porton Down test participants. The study involved 111 participants but no control group. The report, published in April 2004, was entitled “Clinical Findings in 111 Ex-Porton Down Volunteers”. It noted that over 20,000 had participated in the tests since Porton Down's establishment in 1916 and that 3, 000 had participated in nerve gas tests and 6, 000 in mustard gas tests, with some servicemen having been exposed to both. It concluded that: “On a clinical basis, no evidence was found to support the hypothesis that participation in Porton Down trials produced any long-term adverse health effects or unusual patterns of disease compared to those of the general population of the same age.” 71. From July 2002 the MOD funded “an initial pilot research project” on mortality and cancer incidence among Porton Down test participants. It compared 500 participants with a control group of 500 other servicemen and the decision was taken that a full-scale epidemiological study should be undertaken. By mid-2003 this had begun and it was expected to take about two years to complete. 72. Further to the death of Aircraftsman Maddison in May 1953 after being exposed to Sarin gas (also referred to as GB gas, a nerve agent related to GF), a coroner's inquest was held and recorded “death by misadventure”. An application was brought for a fresh inquest alleging, inter alia, that incomplete evidence had been brought before the coroner and in November 2002 the Court of Appeal ordered a fresh inquest. It concluded on 15 November 2004 with the jury finding that the cause of Mr Maddison's death was the “application of a nerve agent in a non-therapeutic experiment”. Judicial review proceedings appear to be pending. In or around 2004- 05 a non-governmental organisation (“Porton Down Veterans”) discovered during searches in the Public Record Office two letters of May and August 1953 containing legal advice from the Treasury Solicitor to the MOD about Mr Maddison's case and about section 10 of the 1947 Act. That organisation sent this material to the Veterans Policy Unit – Legacy Health Issues of the MOD on 7 February 2005. The Treasury Solicitor's letter of August 1953 noted as follows: “When the case was referred to me previously I did consider the relevance of section 10 of the Crown Proceedings Act 1947 but I came to the conclusion that it had no application. On the information before me I am still of that opinion. Subsection (1) of that section, which deals with injuries caused by acts of members of the Armed Forces, can have no application since the administration of the GB gas to ... Maddison was (so I understand) carried out by [civilian] personnel and not by any member of the Armed Forces. Subsection (2) also seems inapplicable. [It] provides that no proceedings in tort are to lie against the Crown for death or personal injury due to anything suffered by a member of the Armed Forces if that thing is suffered by him'in consequence of the nature or condition of any equipment or supplies used for the purposes of the Armed Forces of the Crown'. As I understand the facts of this case, GB gas cannot be said to be a'supply used for the purposes of the Armed Forces'at all, it being purely an experimental substance and one which has never been used for the purposes of the Armed Forces. If this is correct, then section 10 of the 1947 Act cannot protect the Crown or the Minister from liability.” | The applicant, who was born in 1938 and has been registered as a person with disabilities since 1992, was suffering from health problems as a result of his exposure to toxic chemicals during tests carried out on him in the early 1960s while he was serving in the British army. He complained that he had not had access to all relevant and appropriate information that would have allowed him to assess any risk to which he had been exposed during his participation in those tests. |
1,088 | Freedom of expression in the employment context | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1963 and lives in Balassagyarmat. 5. The applicant is a television journalist. From 15 February 2001 he was employed by the State television company ( Magyar Televízió Zrt. ). Following an amendment of his work contract on 10 July 2002, he was appointed for an indeterminate period. At the material time, he was chairman of the Trade Union of Public Service Broadcasters ( Közszolgálati Műsorkészítők Szakszervezete ), active within the television company. The applicant was in charge, as editor and presenter, of a periodical cultural programme called Éjjeli menedék (Night Shelter) which involved interviews with various figures of cultural life. 6. According to point 10 of his work contract, the applicant was bound by professional confidentiality. He was obliged not to reveal any information acquired in connection to his position the disclosure of which would be prejudicial to either his employer or any other person. According to the labour contract, he also took note of the fact that a breach of this obligation would lead to the immediate termination of his employment. 7. Following the appointment of a new cultural director the applicant had apparently contacted the television company ’ s president, since he had perceived the new director ’ s conduct in modifying and cutting certain contents of Éjjeli menedék as censorship. He had received no response to his complaint. 8. On 6 June 2003 the editor-in-chief of Éjjeli menedék addressed a letter to the board of Magyar Televízió Zrt. stating, amongst other things, that the appointment of the new cultural director had led to censorship of the programme by his suggesting modifications to, and the deletion of, certain contents. On 19 June 2003 an article appeared in the online version of a Hungarian daily ( Magyar Nemzet Online ) [1], containing the editor-in-chief ’ s letter as well as a statement of Magyar Elektronikus Újságírók Szövetsége (Hungarian Union of Electronic Journalists), inviting the board to end censorship in the television company. 9. In 2004 the applicant published a book entitled “ Az antifasiszta és a hungarista – Titkok a Magyar Televízióból” (The Antifascist and the Hungarista - Secrets from the Hungarian Television). Each chapter of the book contained an extract from different interviews recorded in 2003, which had not been broadcast in the cultural programme, apparently on the basis of the instructions of the cultural director in question. Along with the extracts, the applicant included numerous in-house letter exchanges between the cultural director and the editor-in-chief concerning the suggested changes in the programme. Moreover, the chapters contained a short introduction or summary of the events, reflecting the applicant ’ s personal opinion. The preface of the book said that it would contain documentary evidence of censorship exercised in the State television company. It called on the readers to decide whether the documents indicated the cultural director ’ s legitimate exercise of his supervisory functions or an interference with the broadcaster ’ s freedom of expression. 10. On 11 November 2004 the television company dismissed from employment the applicant and the editor-in-chief of Éjjeli menedék, with immediate effect. The reason for the applicant ’ s summary dismissal was that, by publishing the book in question, he had breached the confidentiality clause contained in his labour contract. 11. The applicant challenged his dismissal in court. He argued, inter alia, that he had received the in-house letter-exchange in connection with his position as the chairman of the trade union, in order for him to take steps against the alleged censorship at the television company, and that he had published the impugned book in that capacity. 12. In its judgment of 8 April 2008 the Budapest Labour Court dismissed the applicant ’ s action, stating that he had breached his obligations under point 10 of his work contract by publishing information about his employer without its consent. The court also found that the applicant ’ s position as chairman of the trade union did not exempt him from the duty of confidentiality. 13. The applicant appealed, arguing that the publication of the book had not in any way prejudiced his employer or any other person and that he had not acquired the published information in connection with his position but in his capacity as trade union chairman. In that position, and in representation of the interests of his colleagues, he was obliged to act against the censorship within the television company. Thus, according to the applicant, the conditions of dismissal, as stipulated in point 10 of his labour contract, had not been fulfilled. 14. On 13 February 2009 the Budapest Regional Court dismissed the appeal on the same grounds as the Labour Court, adding that the publication of the book might have had a certain detrimental effect on the television company ’ s reputation. Furthermore, in the Regional Court ’ s opinion, the impugned measure had not constituted an abuse of rights on the employer ’ s side, since the applicant had voluntarily agreed to the restriction of his freedom of expression by signing his labour contract. 15. The applicant pursued a petition for review before the Supreme Court. He argued that he had been unlawfully dismissed in that his conduct, namely to inform the public about censorship at the State television company in a book – which was a last-ditch option given that his efforts vis-à-vis the management to have the matter investigated had been to no avail – should have been regarded as an exercise of his freedom of expression rather than an unlawful breach of his labour contract, especially in view of the fact that the allegation of censorship had not been refuted. 16. On 26 May 2010 the Supreme Court found against the applicant. Referring to the applicant ’ s submission concerning freedom of expression, it held that the scope of the case did not extend beyond the examination of the applicant ’ s breach of his labour obligations. In the court ’ s view, the applicant had indeed breached the contract by means of the unauthorised publication of internal documents of his former employer. The court expressly excluded from its scrutiny the question whether or not the applicant ’ s freedom of expression justified, in the circumstances, a formal breach of his labour contract. This decision was served on 13 July 2010. | The applicant, a journalist employed by the State television company, was dismissed in 2004 for breaching a confidentiality clause after he published a book concerning alleged censorship by a director of the company. He unsuccessfully challenged his dismissal in the domestic courts. |
506 | Unavailability of widows’ allowances to widowers | I. THE CIRCUMSTANCES OF THE CASES 6. The facts of each case, as submitted by the parties, may be summarised as follows. A. Mr Runkee 7. Mr Runkee was born in 1938 and lives in Hull. 8. He married in 1964. He and his wife had three children, born in 1965, 1966 and 1974. On 15 March 1998 his wife died. She had worked full time for eight years until becoming pregnant and had made full social security contributions. 9. The applicant notified the Benefits Agency of his wife's death and of his intention to claim “widowers'benefits” on 31 March 1998. By a letter dated 16 April 1998, the Benefits Agency informed the applicant that because he was not a woman he was not entitled to widow's benefits. The applicant lodged a statutory appeal against this decision on 1 May 1998, but abandoned it when advised that the appeal was bound to fail. 10. At the time of his application to the Court, Mr Runkee was in receipt of means-tested statutory benefits, including Income Support and Housing and Council Tax Benefits. Were he a woman, his entitlement to Widow's Pension would have been offset against these benefits, to the extent that, in his present circumstances, he would have received no additional money in respect of Widow's Pension. B. Mr White 11. Mr White is a United Kingdom national, born in 1942 and living in Warrington. 12. He married in 1960. He and his wife had two children, one of whom was adopted and born in 1955, the other of whom was born in 1968. 13. On 8 March 1999 his wife died. She had worked until the birth of her son in 1968 and had made reduced social security contributions. 14. The applicant notified the Benefits Agency of his wife's death and of his intention to claim “widowers'benefits” on 10 March 1999. On 21 June and 8 September 1999, Angela Eagle, a Minister from the Department of Social Security, wrote to the applicant's Member of Parliament confirming that as a man he was not entitled to claim widows'benefits. | Both applicants complained that, as men, they were not entitled to receive widows’ benefits (Widow’s Pension and Widow’s Payment) equivalent to those available to comparable bereaved women. |
69 | Filiation | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1936 and lives in Bidnija ( Malta ). A. The background of the case 9. The applicant is a well-known businessman in Malta. On 29 December 1963 he married a Maltese national, X, in a Catholic ceremony. In 1966 X became pregnant; at that time she was still living together with the applicant, who was aware of the pregnancy. In March 1967 the applicant and X separated and stopped living together. On 4 July 1967 X gave birth to a child, Y. 10. The applicant states that he had had doubts regarding the paternity of Y and wanted to carry out a blood test, although such a test would not have been conclusive under Maltese law, which did not allow him to institute an action to rebut the legal presumption that he was Y ’ s father. He was registered as the natural father of the child. 11. A few months after Y ’ s birth, X refused to carry out the blood test. This behaviour intensified the applicant ’ s suspicions regarding the child ’ s paternity. He alleged that he distanced himself completely from Y and, although legally obliged to pay maintenance for her until she reached the age of majority, he had no relationship with her. This is disputed by Y (see “D. The statements by Y and by the applicant” below ). 12. The applicant legally separated from X on 2 March 1968 by means of a contract of voluntary separation. Subsequently the marriage was annulled by a decree of the Court of Appeal of the Vicariate of the City of Rome on 24 April 1972. 13. According to the applicant ’ s version of events, on an unspecified date after 199 3 Y contacted him and volunteered to undergo a blood test. Scientific examinations were carried out in Switzerland and concluded that the applicant was not Y ’ s biological father. However, in a written statement attached to the Government ’ s observations on the merits, Y declared that the DNA test had been carried out in 1990 and not in 1993. She further stated that the results of this test had never been shown to her. B. The constitutional proceedings before the Civil Court 14. On 1 November 1996 the applicant lodged an application with the Civil Court ( First Hall ), seeking a declaration that notwithstanding the provisions of the Maltese Civil Code, he had a right to proceed with an action for disavowal of paternity. 15. The applicant alleged that the right to respect for his private and family life included the right to have family relationships governed by biological certainty and not by a legal presumption conflicting with the reality of the facts. He considered that the lack of any remedy in that respect violated Article 8 of the Convention, as interpreted by the Court in the case of Kroon and Others v. the Netherlands (judgment of 27 October 1994, Series A no. 297-C). 16. In submissions filed with the Civil Court the applicant also invoked Articles 6 and 14 of the Convention, alleging a potential violation of his right of access to a court and his right not to be discriminated against vis-à-vis the mother of the child, the child herself or any third parties who, unlike the betrayed husband, were free to deny legitimacy without being subject to any time-limit. 17. In a judgment of 30 May 1997 the Civil Court allowed the applicant ’ s application. It observed that Articles 70 and 73 of the Civil Code had never allowed him to adduce scientific and genetic evidence to prove that the child borne by his former wife was not in fact his daughter. Therefore, there had been a violation of Article 8 of the Convention. 18. The Civil Court considered that the status of father was intimately linked with private life. Therefore, laws establishing how ties of filiation could be created and dissolved could interfere with the right guaranteed by Article 8 of the Convention. It furthermore observed that national law had never allowed the applicant to adduce scientific evidence in order for the family relationship in question to be governed by biological certainty and not by a legal presumption. In fact, under Article 70 of the Civil Code, as in force at the relevant time, the father could only repudiate paternity on the grounds either of physical impossibility of cohabitation or of legal separation during the possible period of conception. Moreover, the husband could not repudiate a child on the ground of adultery, except where the birth had been concealed from him. As the applicant had been cohabiting with X at the time of Y ’ s conception and had been aware of her birth, no action for disavowal could have been brought within the period of three months from the date of the birth as set forth in the relevant domestic provisions. It was true that the Civil Code had been amended in 1993, and that under the new Article 70 § 1 (d), the husband was also allowed to repudiate a child on the ground of adultery subject to the production of further evidence, including genetic tests, ruling out his paternity of the child. However, under Article 73 of the Civil Code, such an action should have been brought within six months from the date of the birth, and by 1993 that period had already expired. 19. In the Civil Court ’ s view, such interference could not be justified in terms of paragraph 2 of Article 8 of the Convention. It emphasised that in the case of Kroon and Others v. the Netherlands the European Court had stated that respect for family life required that biological and social reality should prevail over a legal presumption. This finding dispensed the Civil Court from ascertaining whether the other rights relied on by the applicant had also been infringed. C. The proceedings before the Constitutional Court 20. The Attorney General appealed against the judgment of 30 May 1997 to the Constitutional Court. A third - party appeal was also lodged by Y. 21. In a judgment of 15 January 2002 the Constitutional Court allowed the appeals by the Attorney General and Y and set aside the impugned judgment. 22. It observed that even before the 1993 amendments the Civil Code had not precluded the taking of genetic and scientific tests to establish whether a person was the father of a child or not. In fact, Article 73 of the Code simply provided that adultery alone was an insufficient basis for bringing an action to repudiate paternity, the presence of another element being necessary, namely that the birth had been concealed from the person legally designated as the father. Only after this circumstance had been established could the “father” produce other evidence, including scientific material. The reason for this limitation of the husband ’ s right to proceed with an action for repudiation had been the stand in favour of the status of legitimacy, summed up by the presumption “ pater is est quem iustae nuptiae demonstrant ”. The ratio legis remained the same even after the 1993 amendments, which allowed the husband to repudiate the child on the basis of adultery and scientific tests even if the birth had not been concealed from him (Article 70 § 1 (d) of the Civil Code). In any case, scientific tests alone merely constituted evidence corroborating other elements, and they had never been sufficient and decisive to disavow paternity, the husband being obliged to prove the adultery or the concealment of the birth. 23. The Constitutional Court noted that the applicant was in reality claiming a right to determine paternity uniquely on the basis of biological certainty resulting from scientific proof, independently of any other requirement imposed by the legislator and without any time-limit. It was true that scientific tests, whose results were apparently ascertainable and accessible, could be the most conclusive; however, in the Constitutional Court ’ s view, this was not a good reason to exclude certainty reached by means of other evidence. 24. The Constitutional Court examined whether the domestic law had struck a fair balance between the husband ’ s right to know whether or not he was the child ’ s father and the interests of the child in enjoying certainty as to his or her legal status. It considered that according to today ’ s social trends, the aim of the interference complained of was the protection of children in the enjoyment of their family ties rather than the protection of the status of legitimacy. The issue raised by the applicant concerned a conflict between factual reality and legal certainty, a matter which was the subject of debate in many other countries. The Constitutional Court noted that the Kroon and Others judgment did not deny a margin of appreciation to the State authorities and that the European Court had not made a statement on the conformity of the provisions of Dutch law with the Convention, preferring to rule solely on the particular circumstances of the case before it. The contested judgment had simply followed the position taken in the Kroon and Others judgment, the facts of which, however, were completely different from those of the present case, in which both X and Y disagreed with the action taken by the applicant and the “social reality” enjoyed by Y corresponded to her birth certificate. 25. The Constitutional Court moreover pointed out that in the case of Rasmussen v. Denmark (judgment of 28 November 1984, Series A no. 87) the Court had considered that the introduction of time-limits for the institution of paternity proceedings was justified by the desire to ensure legal certainty and to protect the interests of the child, and had consequently found no violation of Article 8 of the Convention. That approach had subsequently been confirmed by the European Commission of Human Rights in the cases of B.H. v. Austria (application no. 19345/92, decision of 14 October 1992) and M.B. v. the United Kingdom, concerning the refusal to order a blood test (application no. 22920/93, decision of 6 April 1994), as well as by the Court in the case of Yildirim v. Austria ( (dec.), no. 34308/96, 19 October 1999). 26. In the light of the above, the Constitutional Court considered that the interest in having biological and social reality prevail over legal presumptions should be balanced against equally valid principles and values, such as the interests of the offspring, the identity of the family nucleus and the stability of society. This vindicated the right of the State to impose, within its margin of appreciation, certain limits on the use of an action to deny paternity, which the Constitutional Court could review only if they amounted to serious interference with the husband ’ s fundamental rights. 27. The Constitutional Court finally observed that the ideal situation was one in which legal certainty corresponded to factual reality. It therefore suggested that the domestic provisions be constantly kept under the legislator ’ s scrutiny to be refined and updated as and when necessary, taking into account developments in science, changes in the family and social trends. D. The statements by Y and by the applicant 28. Attached to their observations on the merits, the Government produced a statement by Y, in which she declared that she had used the applicant ’ s name for thirty-seven years and would like to continue to do so for the rest of her life. Y also stated that the applicant used to visit her during the first year of her life; he had provided maintenance for her upbringing and had paid a sum for her wedding expenses. Y had been invited several times to parties at the applicant ’ s house and on one occasion she had been asked to go upstairs to greet the applicant ’ s father. On another occasion, Y had played tennis with the applicant at his private house in Bidnija. At some point between 1990 and 1996 the applicant had invited Y and her son to spend a day at his house by the pool. On that occasion, he had given her son a present. 29. Y declared that she had undergone the blood test in March 1990 at the applicant ’ s request. At that time she had had no doubt that the applicant was her father. Her intentions were based on purely emotional factors and not on financial considerations. Y alleged that she did not believe the applicant ’ s statement that she was not his daughter and added that she had never been shown the results of the DNA test. She felt that the applicant was simply trying to find some justification for the fact that he had not always treated her like a daughter. The reasons behind the applicant ’ s legal actions were probably of a merely financial nature. The allegations made in court had caused Y further suffering. 30. In response to Y ’ s arguments, the applicant produced a written statement in which he declared that, having suspected that his wife was having affairs during their marriage, he had not been happy when he had been informed that X was pregnant. The applicant had separated from X several months before Y ’ s birth and had been informed of the birth a few weeks after it had happened. The applicant had not wanted to sign the declaration of birth and had delayed the matter for months. He had eventually been incorrectly led to believe that as the presumed father, he was the only person who could declare the birth; moreover, pressure had been put on him by X and her father, who had promised that a blood test would be carried out. The applicant had asked whether the blood test could be included as a condition in the contract of separation, but he had abandoned that idea in order not to damage X ’ s reputation. Four months after the signature of the contract of separation, the applicant had been informed that X had changed her mind as to the blood test. He had therefore declared that he would not regard Y as his own daughter. 31. The applicant had included access rights in the separation contract and had actually visited Y during the first year of her life because he had not been sure about the results of the blood test. However, he had stopped the visits when it became clear that the blood test would not be carried out and he had never used his right to take Y to his home. The applicant had not seen Y again until she was about twenty years old, when a friend of his had brought her to one of his parties without informing him beforehand. There had been around one hundred guests at the party. The applicant had not recognised Y on that occasion. She had come to parties organised by the applicant three or four more times, always as an uninvited guest. The applicant did not remember whether he had invited her to greet his father, but pointed out that it had been common for his guests to visit his father, who was living with him. 32. The applicant submitted that he had shown the results of the blood tests to Y; however, he had kept the documents for himself. He would have given her a copy had she so requested. 33. On one occasion, “as a matter of courtesy”, the applicant had invited Y for lunch. Y had asked whether she could bring her son and the applicant had replied that that was possible. On that occasion, the applicant and Y had discussed Y ’ s real father ’ s identity. 34. The applicant had not seen Y again after this lunch. She had never been treated as a granddaughter by the applicant ’ s parents and the members of the applicant ’ s family had not had any direct contact with her. She had never attended family parties or family funerals and had not been given the applicant ’ s deceased mother ’ s jewellery (as would be customary in Malta if she were the applicant ’ s daughter). The applicant had never felt like a father to Y and could not see how she could have felt like a daughter to him. They had seen each other a few times in nearly thirty years and always in the company of third persons. Y had never called the applicant “ dad ”. 35. The applicant submitted that he had included maintenance for Y in the contract of separation because he was in any case obliged to pay for it. The applicant had also felt obliged to contribute to Y ’ s marriage expenses, but had not been invited to the wedding. | In 1966, the applicant’s wife became pregnant. The following year, the couple separated. The applicant, under Maltese law, was automatically considered to be the father of the child born in the meantime and was registered as her natural father. Following a DNA test which, according to the applicant, established that he was not the child’s father, he tried unsuccessfully to bring civil proceedings to repudiate his paternity of the child. The applicant complained that he had been denied access to a court and that the irrefutable presumption of paternity applied in his case had amounted to a disproportionate interference with his right for respect of private and family life. He also complained that he had suffered discrimination, because other parties with an interest in establishing paternity in the case had not been subject to the same strict conditions and time limits. |
145 | Unaccompanied foreign minor | 2. The applicants were allegedly born in 1999. Mr Ousainou Darboe lives in Padua. The whereabouts of Mr Moussa Camara are unknown. The applicants are represented before the Court by Mr M. Ferrero and Ms E. Chiaretto, lawyers practising in Padua. 3. The Italian Government (“the Government”) were represented by their Agent, Ms E. Spatafora, and subsequently by Mr L. D’Ascia, her successor. 4. The facts of the case may be summarised as follows. Mr Moussa Camara 5. According to Mr Moussa Camara, he reached the coast of Sicily in 2016 and was transferred to an adult reception centre in Cona (Venice). 6. By a letter dated 24 June 2021, his representatives informed the Court that they had lost contact with their client. It is therefore proposed to strike this part of the application out of the list of cases (see paragraphs 95 et seq. below). 7. Thereinafter, the Court will then refer to Mr Ousainou Darboe as “the applicant”, with the only exception of paragraphs 95 to 98 below. Mr Ousainou DarboeThe applicant’s arrival in Italy and age assessment The applicant’s arrival in Italy and age assessment The applicant’s arrival in Italy and age assessment 8. The applicant reached the coast of Sicily on 29 June 2016 aboard a makeshift vessel. 9. He submitted that he had declared his minor age and orally expressed his intention to apply for international protection shortly after his arrival. However, no information on how to initiate the relevant procedure was provided to him, and no request for international protection was eventually lodged in his case. 10. The applicant was initially housed in a centre for foreign unaccompanied minors. 11. On 27 September 2016 he was transferred to the adult reception centre in Cona. A healthcare card was provided to him, indicating his date of birth as 22 February 1999. According to this date, the applicant was seventeen years old at the time. 12. On 27 October 2016, at the request of the prefecture, a doctor of the local health authority carried out a medical examination of the applicant to determine his age. The corresponding medical report stated that his bone age, as evaluated by X-ray examinations of the left wrist and hand on the basis of the Greulich and Pyle method [1], corresponded to that of an eighteen-year-old male. 13. The applicant alleged that his consent to undergo this examination had not been acquired and that he had not been provided with a copy of the relevant medical report at the time. No margin of error was indicated therein, nor was any administrative or judicial decision regarding his age assessment communicated to him. 14. Once in Cona, the applicant was assisted by lawyers, who eventually filed his application with the Court. The applicant’s application to the Venice District Court to obtain the appointment of a legal guardian 15. On 16 January 2017 the applicant’s representatives lodged an application with the Venice District Court to obtain the appointment of a legal guardian. They stated that the applicant had declared to be an unaccompanied minor upon his arrival in Italy and had been registered as a minor by the local health authority, which had provided him with a healthcare card. 16. They explained that the applicant had requested international protection since his arrival, and that he had been interviewed once in Cona by someone whose functions remained unknown, without the assistance of an interpreter or understanding the content of the document drawn up on that occasion, which had possibly been transmitted to the Venice Prefecture. The applicant had not yet received a provisional stay permit or been called by the relevant police department in Venice to file his request for international protection. No information had been provided to him with regard to the international protection procedure. He had not been interviewed in order to assess his possible vulnerability and specific needs as a minor. 17. The representatives submitted that the applicant’s situation was in violation of Article 19 §§ 1, 4 and 5 of Legislative Decree no. 142 of 2015 (see paragraph 47 below), considering that, under these provisions, unaccompanied minors had to be accommodated in governmental initial reception facilities for the time strictly necessary for their identification, their possible age assessment and to receive all relevant information about their rights, in a manner appropriate to their age, including the right to apply for international protection. Moreover, during his stay, the applicant should have been interviewed with a view to assessing his personal situation. By no means should minors be housed in structures dedicated to adults. In addition, the police authorities should have immediately informed the Juvenile Court and its prosecutor that the applicant was there, so that the relevant guardianship proceedings could be initiated. None of these guarantees had been applied in his case. 18. As to the applicant’s international protection request, the representative referred to the guarantees laid down in Article 19 of Legislative Decree no. 25 of 2008 (see paragraph 45 below), as regards in particular the obligation to provide the necessary assistance to the minor in order to formulate the request, the appointment of a legal guardian, the possibility of undergoing a non-invasive age-assessment medical examination, with the individual’s consent, and information pertaining to the type of examination and its consequences. The representatives also referred to the measures laid down in the context of age-assessment procedures by Prime Ministerial Decree no. 234 of 2016 (see paragraph 55 below) and reiterated that the applicant had not benefited from the above-mentioned safeguards. 19. Lastly, the representatives asked that the applicant be granted all the above-mentioned rights as an unaccompanied minor asylum-seeker. 20. On 19 January 2017 the guardianship judge annotated the first page of the application with the words “To be sent to the Venice police headquarters for the necessary checks”. 21. In their observations, the Government did not provide any information concerning the outcome of that application. The applicant’s representatives indicated that no further communication had been addressed to them either. The applicant’s living conditions in ConaLiving conditions as described by the applicant Living conditions as described by the applicant Living conditions as described by the applicant 22. The applicant complained of an overcrowding situation in the Cona reception centre, which was intended to house solely adults. Notwithstanding its 542-person capacity, the centre accommodated around 1,400 people at the time of his stay. The 360 sq. m dormitory housed 250 adults, sleeping in bunk beds. 23. Proper heating and hot water in the bathrooms were lacking. The number of bathrooms and canteen benches was insufficient, educational and recreational activities were poor, and there were only twenty-five members of staff. Furthermore, knives, alcohol and narcotics circulated in the centre. Episodes of violence and prostitution took place during his stay. 24. The applicant also complained of a lack of proper healthcare, including psychological assistance, and of access to legal information and assistance. Evidence submitted by the applicant 25. The applicant submitted a number of pictures showing, among other things, overcrowded dormitories. 26. He also provided a parliamentary question submitted by a member of parliament on 6 December 2016 following a visit to Cona on 16 November 2016. The relevant document indicated that the centre housed 1,256 people, living in seven large, overcrowded tents, measuring from 340 to 1,500 sq. m. 27. The report stated that the centre was understaffed and that healthcare, provided by local practitioners who had to take care of a high number of patients, was inadequate. It was also noted that some people had been residing in the centre for more than one year. 28. In addition, the applicant submitted a report from a non-governmental organisation, Associazione Giuristi Democratici. The report stated that, at the time of its visit on 4 January 2017, the centre had housed 1,400 people. 29. According to this report, migrants were crammed into small brick buildings and large tents without proper heating. Bunkbeds were placed so close together that there was no space to pass between them. The number of canteen tables and chairs was insufficient compared to the number of people eating. Only one doctor was present during the day in the centre, while one nurse was there at night and during the holidays. The applicant’s transfer to a minor migrant centre 30. On 21 January 2017 the applicant lodged a Rule 39 request to the Court asking to be transferred to facilities where his reception conditions as an unaccompanied minor could be ensured. 31. Replying to the Court’s request for information on 26 January 2017, the Government stated that the applicant had undergone an X-ray examination of his wrist and hand, in the light of which he had been considered an adult. He was therefore still in Cona. 32. On 14 February 2017 the Court decided to apply Rule 39 and to indicate to the Government to transfer the applicant to facilities where his reception conditions as unaccompanied minor could be ensured. 33. The applicant’s representatives submitted the applicant’s X-ray results of 27 October 2016 to another doctor. A statement by that doctor, issued on 13 February 2017, expressed the view that the Greulich and Pyle method alone was not sufficient to determine an individual’s age with certainty and was only indicative, subject to biological variability. The degree of biological maturity, particularly during puberty, presented a wide statistical variability. Applying the TW3 method [2], the statement concluded that the applicant’s date of birth was compatible with that initially indicated by him, namely 22 February 1999. 34. On 18 February 2017 the applicant was transferred to the “Villa Sarina-Aria” centre for minors in Vedrana di Budrio (Bologna). His stay in the Cona reception centre had lasted more than four months. 35. On 2 March 2017 a representative of FAMI ( Fondo Asilo, Migrazione e Integrazione 2014-2020 – the 2014-2020 Asylum, Migration and Integration Fund), a project organised by the Ministry of the Interior and co-financed by the European Union, met the applicant and drew up a report detailing his personal and family situation in his country of origin and the different steps of his journey to Europe. 36. On 9 March 2017 a representative of FAMI met the applicant again, assisted by an interpreter. 37. The applicant was asked to answer certain questions concerning the period of his stay in Cona. The facts of the case presented to the Court were read to him, and he confirmed the circumstances and information described therein, also with regard to his identification procedure and the living conditions in Cona. In particular, he reported his difficulties living in an overcrowded facility housing adult and minor migrants together, without any information being provided to him and without any control and respect for the minimal rules of civil cohabitation. 38. According to the relevant reports, the applicant pointed out that he had only had the opportunity to be interviewed once, upon his arrival. On that occasion, few questions had been put to him as regards his migration plans and no information as to the place he had reached, his rights as a minor migrant and the possibility of international protection had been provided to him. As regards his age assessment, the applicant stated that he had declared his minor age immediately upon his arrival, during the above-mentioned interview. However, his interlocutor had clearly expressed doubts as to the credibility of the information provided and informed him that he would have to undergo a medical examination in order to verify the veracity of his statements. 39. During this second meeting with a FAMI representative, the applicant changed his date of birth to 22 May 1999 and provided a photo of what he considered to be his birth certificate, a copy of which was annexed to the file. 40. The reports also indicated that the lack of information provided to the applicant, the absence of any qualified support and the suspicious and biased attitude towards him had clearly been a source of distress and disorientation. 41. On 7 November 2018 Rule 39 was lifted. | In June 2016, the applicants in this case, a Gambian national and a Guinean national respectively, arrived in Italy on makeshift vessels, and claimed asylum as alleged unaccompanied minors. The case concerned their placement in an adult migrant centre and the age-assessment procedure that ensued. |
208 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1970 and lives in Ukhta, the Komi Republic. A. The applicant ’ s arrest and ensuing events 6. In April 2005 a jewellery shop and other premises in a commercial centre in the Sosnogorsk district of the Komi Republic were robbed; in the course of those events, a woman guard was attacked and suffered injuries. Investigator A., from the investigation unit of the Sosnogorsk police department, opened a criminal case into the robbery. On 15 June 2005 the criminal proceedings were suspended for failure to establish the identity of a person to be charged. 7. On 25 August 2005 a certain R. reported to the police that her boyfriend B. had committed the robbery together with Zh. and the applicant. On the same day investigator A. reopened the criminal proceedings. 8. On 26 August 2005 the police arrested B., Zh. and the applicant. Investigator A. was present at the time of the arrest. The three men were taken to the Sosnogorsk police department of the Komi Republic ( отдел внутренних дел г. Сосногорска Республики Коми ). 9. Police officers, in particular Z., the head of the criminal police division of the Sosnogorsk police department, interviewed the applicant about his involvement in the robbery. According to the applicant, they demanded that he confess to the robbery and G., an operative officer in the criminal investigation unit of the police department, punched and kicked him on different parts of his body. Fearing new violence, the applicant confessed to having participated in the crime as requested, and signed a record of his “surrender and confession” ( явка с повинной ) that had been drawn up by operative officer G. at Z. ’ s request. 10. According to that record, on 26 August 2005 in office no. 12 of the Sosnogorsk police department police officer G. obtained from the applicant his confession to the crime, in accordance with Article 142 of the Code of Criminal Procedure of the Russian Federation (“CCrP”). In particular, the record stated that the applicant had assisted B. and Zh. by loading the property stolen from the shops into his car and transporting it; that he had confessed without any physical or psychological pressure being exerted on him; and that he had been informed of Article 51 of the Constitution. The record did not indicate the exact time when the confession was obtained and did not explain the meaning of Article 51 of the Constitution (concerning self-incrimination, see paragraphs 28, 47 and 49 below). 11. At Z. ’ s request, the applicant wrote in the police station visitors ’ registration log that he had struck his own head against a wall, and that he had no complaints against the police officers. 12. At 2.57 p.m. on the same day investigator A. drew up a record of the applicant ’ s arrest as a suspect in the case. 13. On the same day the applicant was placed in a temporary detention facility (IVS) at the Ukhta police department. According to the IVS records, on arrival he had bruises under his eyes, his lips were burst, his lower jaw was swollen on the left side, and he had bruises on his back and abrasions on his knees. 14. On 27 August 2005 the applicant was questioned as a suspect in the presence of a lawyer. He retracted the confession statement that he had given on the previous day, and explained that he had made the statement as a result of ill ‑ treatment by the police officers. 15. On 30 August 2005 a judge of the Sosnogorsk Town Court ordered that the applicant be detained on remand. In reply to the judge ’ s question about the origin of his facial injuries, the applicant stated that he had been beaten up by operative officers from the police department. On the same day the applicant ’ s legal - aid counsel, who was representing the applicant at the court hearing, lodged an application with the Sosnogorsk prosecutor in which he requested that an inquiry be conducted into the applicant ’ s complaint and that those responsible for his ill ‑ treatment be prosecuted. 16. On 31 August 2005 the applicant was placed in pre ‑ trial detention facility SIZO 11/2, where he was examined by a doctor and found to have bruising beneath his eyes, a swollen nasal bridge, two - centimetre abrasions on the right side of his forehead, hematoma on the left side of his lower jaw and abrasions on the small of his back and right knee (as recorded in a certificate of that detention facility dated 29 September 2005). 17. On 5 September 2005 the applicant ’ s counsel requested investigator A., who was in charge of the robbery case, to order a forensic medical examination ( судебно ‑ медицинская экспертиза ) of the applicant. The investigator rejected the request as irrelevant to the robbery case. B. Criminal proceedings into the applicant ’ s alleged ill-treatment 1. Refusal to institute criminal proceedings 18. Following the application by the applicant ’ s counsel (see paragraph 15 above), investigator V. of the Sosnogorsk prosecutor ’ s office carried out a pre ‑ investigation inquiry into the alleged ill ‑ treatment of the applicant. 19. On 5 September 2005 the investigator ordered a forensic medical examination of the applicant; this was carried out by the Ukhta Forensic Medical Bureau on 7 September 2005. The expert ’ s report stated that the applicant had the following injuries: bruises measuring up to 1 to 3.5 centimetres on the lower eyelids of both eyes, two abrasions measuring 4 to 0.6 and 1.5 to 0.2 centimetres on his back; and an abrasion measuring 0.6 to 0.5 centimetres on his right knee. The injuries could have been caused by impacts from blunt hard objects with a limited contact surface, in the period 8-12 days before the examination. They could not have been caused by a single impact as a result of a fall against a flat surface. 20. The investigator received “ explanations ” ( объяснения ) from investigator A. (responsible for the robbery case ) and from the police officers who had taken the applicant to the police station and interviewed him about his involvement in the robbery. In particular, police officer G. stated that in the course of a “conversation” ( беседа ) which he had had with the applicant, the latter had suddenly jumped to his feet and hit his head against the wall, as a result of which his nose had started bleeding. Police officer K. also stated that he had seen the applicant hitting his own head against the wall. Police officer Z. explained that in the course of his “conversation” with the applicant the latter had recounted the details of the robbery committed by him; that the applicant had explained that he had hit his own head against the wall and that he had no complaints against police officers; and that the applicant had entered this explanation in the police station visitors ’ registration log. 21. On 9 September 2005 investigator V. held that the applicant ’ s allegations of ill-treatment, in particular the claims that he had been struck “ in his kidneys” and pushed so that his face had hit the wall and he had fainted, had not been based on real facts and that no criminal case was to be opened against police officers G., Z., Ku., B. and M., pursuant to Article 24 § 1 (2) of the CCrP ( lack of the elements of a crime in the impugned acts ). 2. Institution of criminal proceedings 22. On 5 December 2005 the Sosnogorsk prosecutor set aside the investigator ’ s decision of 9 September 2005 as unlawful and unfounded, on the ground that the circumstances in which the applicant had received his injuries had not been reliably established. He referred to the description of the applicant ’ s injuries on his arrival in the IVS (see paragraph 13 above) and the SIZO (see paragraph 1 6 above) and his examination by the forensic medical expert (see paragraph 1 9 above). He stated that the expert ’ s suggestions as to how the injuries had been sustained made it doubtful that the applicant could have received his injuries as a result of a one-off impact by his face against a wall. The prosecutor further noted that the applicant had explained that he would most likely be able to identify the police officer who had beaten him at the police station. However, it was not possible to carry out an identification parade and a confrontation in a pre ‑ investigation inquiry. The prosecutor considered that it could not be ruled out that, after his arrest, the applicant had been subjected to acts of violence in order to make him confess to the crime. The applicant ’ s version of his ill ‑ treatment by the police officers could only be verified by way of a full investigation. In order to do so it was necessary to open a criminal case, given that there was sufficient information disclosing elements of a crime under Article 286 § 3 (a) of the Criminal Code (official misconduct with the use of violence). The prosecutor ordered that a criminal case be opened. 3. Termination of criminal proceedings 23. In the course of the ensuing investigation the police officers who had arrested the applicant were questioned as witnesses. The applicant was questioned as a victim. An additional forensic medical expert ’ s report was obtained on 15 February 2006. It reiterated the conclusions in the previous report (see paragraph 19 above). 24. On 4 March 2006 an investigator from the Sosnogorsk prosecutor ’ s office terminated the proceedings for lack of the elements of a crime in the acts of the police officers, pursuant to Article 24 § 1 (2) of the CCrP. 25. On 30 June 2006 a deputy prosecutor of the Komi Republic set aside the investigator ’ s decision and reopened the criminal proceedings. Three further decisions to terminate the proceedings were subsequently taken and then set aside as unfounded and based on an incomplete investigation. In one of the decisions, dated 24 November 2006, the deputy prosecutor ordered that the inconsistencies between the statements of the police officers and that of the applicant be eliminated and that identification parades and confrontations be held, if necessary. When questioned again as a victim, the applicant stated, inter alia, that he remembered that police officer G. had hit his head against the wall and started punching him “ in the kidneys ” ( as stated in a decision to terminate the proceedings of 4 January 2007). 26. The most recent decision to terminate the proceedings for lack of the elements of a crime under Article 286 § 3 (a) of the Criminal Code in the acts of police officers G., Ku. and B. was taken on 1 April 2007. The investigator concluded that the applicant ’ s allegations had been refuted by police officers G. and K., who stated that the applicant had hit his own head against the wall; by the record of his surrender and confession and the forensic medical report of 15 February 2006, in that the applicant ’ s injuries could have been sustained as a result of impacts from blunt hard objects with a limited contact surface. It does not appear from the decision that investigative acts such as identification parades and confrontations with the applicant ’ s participation were carried out. C. The applicant ’ s trial 1. First instance 27. At a preliminary hearing held by the Sosnogorsk Town Court on 13 April 2006 the applicant ’ s counsel requested that the record of the applicant ’ s surrender and confession of 26 August 2005, on which the prosecution relied, be excluded from evidence pursuant to Article 75 § 2 (1) of the CCrP, as it had been obtained in the absence of a lawyer. The Town Court dismissed the request. 28. At his trial, the applicant pleaded his innocence and submitted that he had written his confession statement on the instructions of police officer Z. as a result of physical and psychological coercion by the police officers; in particular, police officer G. had beaten him “ in the kidneys and liver ” and his head had been struck against the wall so that he had fainted. He had not been informed of his right under Article 51 of the Constitution not to give self ‑ incriminating statements, as that part of the record had been added by police officers at a later stage. The applicant asserted, in particular, that on the night of the robbery he had arrived at the commercial centre, by car and at B. ’ s request, and had towed B. ’ s car until its engine started, without knowing anything about the robbery. Two months later B. had offered him gold jewellery, allegedly belonging to B. ’ s acquaintance, for sale. The applicant had returned some of the jewellery to B. and kept the rest for himself. He had understood from police officer Z. that the gold which he had received from B. had been stolen from the Sosnogorsk district commercial centre. He had therefore told Z. about the gold he had kept at his home. 29. The applicant ’ s co-defendant Zh. pleaded his innocence, asserting that he had given self-incriminating statements as a result of his ill ‑ treatment by police officers, in particular by G., who had allegedly beaten him up, kicked him and burned his fingers with a cigarette; he also stated that after his arrest on 26 August 2005 he had seen the applicant, on his knees and bleeding, at the police station. 30. The applicant ’ s co-defendant B. admitted before the trial court that he had committed the robbery together with a certain Ch., and stated that the applicant and Zh. were innocent. In particular, B. stated that on the night of the robbery he had called the applicant, asking him for help because his car had broken down; the applicant had arrived by car as requested, towed B. ’ s car (with the stolen property inside) until the engine started and then left without knowing anything about the robbery. Two or three months later, since he was experiencing difficulties with storing and selling the stolen property, B. had asked the applicant to look after the gold jewellery and to buy some of it if he wished. The applicant had agreed. B. also stated that he had not given any self ‑ incriminating statements during the preliminary investigation, in spite of the physical violence used against him by the police officers, in particular by G. 31. The applicant ’ s wife stated, among other things, that on the day of his arrest the applicant had been taken back to their home by the police officers in order for their flat to be searched. He had had an abrasion on his head, his lip was burst and his nose was swollen. 32. Police officer Z., examined by the trial court as a witness, stated that he and other police officers had arrested the applicant and his two co ‑ defendants after B. ’ s girlfriend had reported their involvement in the robbery. At the police station he had talked to the applicant about the robbery several times. The applicant had confessed, named his accomplices and expressed his readiness to surrender the stolen gold. Z. had suggested that the applicant write a statement of his surrender and confession. The applicant had agreed and Z. had asked his subordinates to prepare the necessary document. No violence or threats had been used against the applicant. 33. Police officer G. stated that after the applicant ’ s arrest he had taken the applicant to the police station. The applicant had been taken to Z. ’ s office and later Z. had requested G. to obtain from the applicant a statement of his surrender and confession. The applicant had written down his statement and signed it. G. had not used any violence against the applicant. G. had come out of his office to register the statement with an officer on duty, while the applicant had stayed with police officer K. On returning to his office, G. had seen the applicant suddenly jump to his feet and strike his head against the wall. The applicant had fallen to his knees and started bleeding, “ probably from his nose ”. K. had given him a towel and asked whether he needed a doctor. The applicant had answered negatively. Z. had then taken the applicant to his office again. 34. Police officer K. stated that the applicant had jumped to his feet and struck his forehead against the wall once and then had fallen to his knees. K. had wanted to call a doctor but the applicant had refused. He had given the applicant a towel because the applicant was bleeding. K. denied any violent behaviour on the part of the police officers. 35. Investigator A. stated that she had investigated the robbery case and had given instructions ( отдельные поручения ) to the police officers in the criminal investigation unit of the Sosnogorsk police department. She had not instructed them to question the applicant or to collect a statement of his surrender and confession. Police officer G. had obtained the applicant ’ s statement of his surrender and confession as a result of the applicant ’ s free will. When questioning the applicant as a suspect (on 27 August 2005, see paragraph 14 above ) she had noticed his injuries and asked if he had needed medical assistance, but he had refused. 36. The applicant ’ s counsel maintained before the trial court that the applicant ’ s statement of his surrender and confession, which he had retracted on the following day when questioned for the first time in the presence of a lawyer, should be declared inadmissible evidence. She noted that investigator A. had drawn up the record of the applicant ’ s arrest as a suspect on 26 August 2005. However, for unknown reasons she had not questioned him as a suspect on the same day. Instead, the police officers had obtained the statement of his surrender and confession on their own initiative, without any such instruction from the investigator. They had done so using psychological and physical coercion, as confirmed, inter alia, by the statements of Zh. and the applicant ’ s wife (see paragraphs 2 9 and 3 1 above), the certificate from detention facility IZ-11/2 (see paragraph 16 above) and the forensic medical expert report of 7 September 2005 (see paragraph 19 above). Furthermore, his confession statement had been obtained in the absence of a lawyer. Under Article 142 § 1 of the CCrP, a statement of one ’ s surrender and confession was meant to be voluntary. Therefore, if obtained from a person arrested on suspicion of having committed a crime, any such statement should be subjected to particular scrutiny. Its voluntary nature was ensured through procedural guarantees under Articles 46 ( “The suspect ” ) and 51 ( “ Compulsory participation of counsel for the defence” ) of the CCrP. Otherwise, such a confession statement should be declared inadmissible evidence in accordance with Article 75 § 2 (1) of the CCrP. 37. In its judgment of 6 December 2007 the Town Court held that the applicant ’ s allegation that the statement of his surrender and confession had been given under duress was unsubstantiated. It relied on the statements by the police officers, denying any wrongdoing on their part (see paragraphs 32-34 above), the investigative authority ’ s most recent decision to terminate the criminal proceedings against them which, as the Town Court noted, had been taken in accordance with the Code of Criminal Procedure and had not been revoked or quashed (see paragraph 26 above), and a report from an internal police inquiry which had dismissed the applicant ’ s allegations of ill ‑ treatment. 38. The Town Court held that it had critically assessed the applicant ’ s statements at the trial and concluded that they represented the position of the defence, in that they were aimed at evading criminal responsibility. Those submissions had been refuted by his and Zh. ’ s statements of surrender and confession, as well as by the statements by the following witnesses: B. ’ s girlfriend, who had provided hearsay evidence about the applicant ’ s involvement in the robbery; five police officers who had participated in the applicant ’ s and his co-defendants ’ arrest or the operative follow-up, in particular Z., G., and K.; investigator A., in charge of the robbery case; Z.A., who had denied seeing the applicant in the porch of his building on the night of the robbery (where, according to her former boyfriend who had been heard by the court as a witness for the defence, she had spent time that evening ), and her mother Z.E., who had stated that Z.A. had not gone out after 9 p.m.; and Kh., who had been an attesting witness during the search at the applicant ’ s home during which certain items were seized. 39. The Town Court held that it had based its judgment on the statements of surrender and confession given by the applicant and Zh., along with statements by the victims, the prosecution witnesses and other evidence. It found that on 12 April 2005 B., Zh. and the applicant had entered into a conspiracy to commit theft from the shops in the commercial centre. According to the roles agreed on between them, the applicant had remained on guard in his car outside the commercial centre, while B. and Zh. had entered while the centre was still open and had hidden there. During the night they had attacked a woman guard and tied her up. Then they had forced locks and stolen property, in particular jewellery and mobile phones. The applicant had helped them to carry the stolen property out and load it into his car, in which they all had left. 40. The Town Court convicted the applicant of high-value theft with unlawful entry, committed in conspiracy by a group of persons, and sentenced him to six years ’ imprisonment. In sentencing the applicant the Town Court took into account information about his personality, in particular that he had received positive character references from his places of residence and employment, and that he had no criminal or administrative offences record. It considered his statement of surrender and confession, the fact that he had two minor children and that he had voluntarily surrendered the stolen gold jewellery, as well as his health condition, as mitigating circumstances. B. and Zh. were convicted of robbery with the use of violence and sentenced to nine years ’ and eight and a half years ’ imprisonment respectively. The Town Court granted the victims ’ civil actions and ordered the applicant and his co-defendants to pay 396,800 Russian roubles (RUB) jointly in respect of pecuniary damage. The victims ’ remaining claims were to be examined in separate civil proceedings. 2. Appeal 41. The applicant and his counsel appealed against the judgment. His counsel argued, inter alia, that the trial court had based its judgment on inadmissible evidence, in particular the statement of the applicant ’ s surrender and confession of 26 August 2005, which had been given by him as a result of ill-treatment by the police officers and in the absence of a lawyer. She reiterated the arguments put forward before the trial court (see paragraph 3 6 above). 42. On 6 June 2008 the Supreme Court of the Komi Republic examined the case on appeal. It endorsed in full the trial court ’ s decision concerning the admissibility of the statement of the applicant ’ s surrender and confession. It held, in particular, that the statement had been obtained in accordance with the Code of Criminal Procedure. Under Article 142 § 1 of that Code, a statement of surrender and confession was a voluntary statement by a person about a crime committed by him. It had not therefore been necessary to have an instruction from an investigator in order to obtain it. The law did not provide for any additional requirements to such a statement, save that the individual concerned was to be warned of his or her criminal responsibility for deliberately giving false information. Therefore, the absence of a lawyer had not rendered the statement unlawful and had not violated the applicant ’ s right to defend himself. He had been informed of his right under Article 51 of the Constitution, as confirmed by his signature on the record of his surrender and confession. 43. The Supreme Court of the Komi Republic further noted that the trial court had examined as witnesses all of the police officers who had seen the applicant at the police station with a view to verifying their implication in the alleged crime. They had all denied any wrongdoing. It had been established that, having written his confession, the applicant had suddenly jumped to his feet and hit his head against a wall. The Supreme Court also referred to the most recent decision by the investigative authority, dated 1 April 2007, by which the criminal proceedings against the police officers had been terminated (see paragraph 26 above), and to the results of the internal police inquiry dismissing the applicant ’ s allegations of ill ‑ treatment (see paragraph 37 above). It upheld the judgment. 3. Supervisory review 44. The applicant ’ s counsel unsuccessfully raised the issue of the admissibility of the record of the applicant ’ s surrender and confession in her requests for supervisory review of the case before the Supreme Court of the Komi Republic and the Supreme Court of the Russian Federation. The former court rejected it for the same reasons as before (decision of a judge of the Supreme Court of the Komi Republic of 5 September 2008 dismissing the request, as endorsed by the President of that court on 27 October 20 08 ). 45. The Supreme Court of the Russian Federation similarly stated that the applicant ’ s argument – that the statement of his surrender and confession had been obtained in the absence of a lawyer – lacked a basis in domestic law, and that the allegation of the applicant ’ s ill ‑ treatment at the hands of the police was unsubstantiated, as shown through its examination by the trial court which had heard the police officers, particularly Z., G. and B. (decision of a judge of the Supreme Court of the Russian Federation of 22 December 2008 dismissing the request for supervisory review, as endorsed by a Deputy President of the Supreme Court on 10 March 2009 ). | This case concerned the applicant’s complaint of having been ill-treated in police custody and of the unfairness of the criminal trial against him, in which his statement of “surrender and confession”, made as a result of his ill-treatment and in the absence of a lawyer, was used as evidence. |
424 | Challenging the lawfulness of detention | I. THE CIRCUMSTANCES OF THE CASE A. Background 6. The first applicant, who was born in 1974 and is a citizen of Afghanistan, left Afghanistan on an unspecified date and entered Bulgaria in 1998. 7. On an unspecified date the first applicant unsuccessfully sought asylum in Bulgaria. The terms of his application, the reasons for the refusal and the relevant dates have not been substantiated by the first applicant. 8. Since 1999 the first applicant has attended the Bulgarian Church of God, a Baptist Church in Sofia. In 2001 he was baptised. 9. The first applicant has two children born in Bulgaria in 2003 and 2005 (the third and fourth applicants). Their mother (the second applicant), born in 1982, whom the first applicant married in 2004, is an Armenian national who has had a permanent residence permit in Bulgaria since an unspecified date. According to the first and second applicants, their first child, born in 2003, has no citizenship and their second child, born in 2005, is a national of Afghanistan. 10. In August 2003 the first applicant submitted a second application for asylum. By a decision of 17 March 2004 he was granted refugee status in Bulgaria on the ground that he risked persecution in Afghanistan on account of his conversion from Islam to Christianity. The short decision stated in its relevant part that according to information from the United Nations High Commissioner for Refugees, conversion to Christianity was “punishable by death in all Afghanistan”. No further details were stated. B. The orders of 6 December 2005 and 12 October 2006 11. On 6 December 2005 the Director of the National Security Service, at that time a department of the Ministry of the Interior, issued an order withdrawing Mr M.’s residence permit, ordering his expulsion and imposing a ten-year ban on his re-entering Bulgaria on the ground that he was a “serious threat to national security”. Factual grounds were not indicated. The Director relied on an internal document of 24 November 2005 which stated that the first applicant was involved in trafficking of migrants, mainly citizens of Afghanistan, through Turkey and Bulgaria to Serbia, Montenegro, Greece and Hungary. The Director considered that this activity was as such a threat to national security. Also, it could be used for the transit of terrorists and thus discredit Bulgaria internationally. 12. The deportation order of 6 December 2005 did not specify the country to which the first applicant should be deported. It appears that there was no legal requirement to do so and that in practice deportation orders did not indicate the country of destination. 13. The order of 6 December 2005 also stated that the first applicant should be detained pending expulsion. 14. On 12 October 2006 another government agency, the Migration Directorate of the national police, issued an order for the first applicant’s detention pending expulsion. The relationship between that order and the order of 6 December 2005, which also required Mr M.’s detention, has not been clarified. 15. According to the order of 12 October 2006, Mr M.’s detention was necessary since he posed a serious threat to national security, and also in view of the fact that there was no (direct) transport connection between Bulgaria and the first applicant’s country of origin, which prevented the immediate execution of the measure against him. 16. The orders of 6 December 2005 and 12 October 2006 were both immediately enforceable. 17. On 18 October 2006 the first applicant was arrested and detained at the Centre for Interim Detention of Aliens. He remained there until his release on 3 July 2009 (see paragraph 43 below). C. Evidence regarding the authorities’ efforts to enforce the deportation order 18. The first applicant has not been deported. 19. According to a statement by the Director of Migration, prepared for the present proceedings and submitted in 2009, Mr M.’s deportation was impeded by the fact that he did not have a document valid for international travel, the “lack of transport connections” and his refusal to cooperate. The Director further explained, without providing details, that several possible destinations for his expulsion had been considered and that unsuccessful attempts had been made to remove the obstacles to the execution of the deportation order. 20. At least until April 2007, the first applicant did in fact have a document valid for international travel. He possessed a special refugee passport, issued by the Bulgarian authorities on 16 December 2004, which was valid for international travel until 6 April 2007. The existence of this document, including its number and date of issue, was mentioned in the deportation and detention order of 6 December 2005. It is unclear whether the first applicant presented his refugee passport to the authorities or concealed it, as suggested by the Government. 21. In February 2007 the Migration Directorate of the police wrote to the Embassy of Afghanistan in Sofia requesting that an identity document be issued to Mr M. It reiterated the request in September 2008 and January 2009. By letter of 30 January 2009 the Embassy of Afghanistan informed the Migration Directorate that it was unable to issue the first applicant with a passport since he had expressly stated at a meeting with Embassy representatives that he did not want to have a passport issued and did not want to return to Afghanistan. In those circumstances, the Embassy would not participate in the first applicant’s forced expulsion. 22. In a letter of 14 October 2008 to the first applicant’s representative, in reply to his request for release, the Director of the National Security Agency stated that Mr M.’s detention continued to be necessary despite the Court’s interim measures decision (see paragraph 4 above). That was so because: “[I]n accordance with the document from the [Court], the [first applicant] should not be deported to Afghanistan. In execution of the expulsion order, he may be deported either to his country of origin or to a third country, where there is no danger for his life and health. The fact that the [deportation] order has not been enforced is the result of the obstinate conduct of [Mr M.] manifested by his frustrating and hampering his deportation from Bulgaria.” D. Proceedings concerning the deportation and detention order of 6 December 2005 23. On 20 October 2006 the first applicant appealed to the Sofia City Court against the order of 6 December 2005 of the National Security Service and requested a stay of enforcement pending the determination of his appeal. In these proceedings he was legally represented. 24. He argued, inter alia, that mere suppositions, not facts, had served as the basis for the impugned measures, there being no evidence of unlawful activities and no criminal proceedings having been brought against him. He also submitted that the expulsion order was in breach of the prohibition to deport a person to a country where his life was under threat. The first applicant further argued that his expulsion interfered with his right to respect for his family life. He also challenged the order for his detention. 25. The defendant, the National Security Service, submitted a copy of the internal document of 24 November 2005 which had served as the basis for the expulsion order (see paragraph 11 above). It also filed submissions, maintaining, inter alia, that the impugned order did not contravene section 44a of the Aliens Act. 26. On an unspecified date Mr M.’s representative wrote to the Migration Directorate insisting that the deportation order should be revoked in view of Mr M.’s refugee status in Bulgaria. 27. By letter of 1 February 2007 the Director of Migration replied that the order was lawful. He stated, inter alia : “In accordance with section 67(3) of the Refugees and Asylum Act, execution of the [deportation order] should not be suspended where there are grounds to believe that the alien seeking or having obtained protection imperils national security. In accordance with Article 33 of the United Nations Convention relating to the Status of Refugees, ‘no Contracting State shall expel or return ( refouler ) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. The benefit of this provision cannot, however, be claimed by a refugee about whom there are grounds to believe that he imperils the national security of the country where he is ...” 28. In October 2007, as a result of legislative amendments, the examination of the first applicant’s appeal against the order of 6 December 2005 fell within the competence of the Supreme Administrative Court. 29. On 30 October 2007 a three-member panel of the Supreme Administrative Court refused the first applicant’s request for a stay of enforcement. The court devoted no attention to his allegations about the risk of ill-treatment in Afghanistan and his request to stay the execution of the deportation order but stated merely that the alleged interference with family life did not warrant a stay of enforcement of the order for his detention. That decision was amenable to appeal before a five-member panel of the Supreme Administrative Court. It is unclear whether the first applicant appealed. 30. By a judgment of 9 June 2008 the Supreme Administrative Court dismissed the first applicant’s appeal against his expulsion and detention. 31. The court noted that an internal Ministry of the Interior document dated 24 November 2005 and submitted by the defendant stated that Mr M. had acted in a way that presented a threat to national security. The court did not accept the first applicant’s arguments that it should engage in detailed examination of the evidence allegedly supporting the view of the Ministry that he posed a threat to Bulgaria’s national security. It stated: “[The document of 24 November 2005] must be regarded as an official certification which contains data collected by the National Security Service in the exercise of its functions. It has been issued in accordance with section 33 of the Protection of Classified Information Act. It contains evidence and data which have been assessed by the relevant administrative authority as sufficient grounds for ordering [Mr M.’s deportation] for having engaged in unlawful activities threatening national security... It follows that the impugned order is lawful.” 32. The court rejected the first applicant’s argument that the deportation order should be revoked since he lived in Bulgaria by virtue of his refugee status. The court stated that the domestic provisions regulating deportation did not provide for discretion and their interpretation could not vary on the basis of such factors as residence status. 33. The court further noted that Mr M. had been granted refugee status on the basis of his allegation that he had converted from Islam to Christianity and was afraid of persecution in Afghanistan. The court observed that there existed evidence of a danger to the first applicant’s health and life in relation to his conversion. It found, however, that this danger did not stem from the Afghan State and that the applicant had not provided evidence that the authorities would be unable to protect him. Therefore, section 44a of the Aliens Act, which reflected the guarantees of Articles 2, 3 and 5 of the Convention, did not apply. 34. As regards the order for the first applicant’s detention, the Supreme Administrative Court found that it was not amenable to judicial review as it concerned a measure undertaken in the execution of the expulsion order and not a separate administrative decision. E. Proceedings concerning the detention order of 12 October 2006 35. On 26 October 2006 the first applicant appealed to the Sofia City Court against the detention order of 12 October 2006 issued by the Migration Directorate. 36. In these proceedings, on 21 December 2006 the Sofia City Court refused the first applicant’s request for a stay of enforcement of the detention order. It found, inter alia, that there was no evidence that its immediate enforcement would cause irreparable harm. The refusal was upheld by the Supreme Administrative Court on 13 March 2007. 37. In the proceedings on the merits, the first applicant argued that his lengthy detention was unlawful and in breach of Article 5 § 1 of the Convention and that it disproportionately affected his family life. 38. By a judgment of 2 April 2009 the Sofia City Court found that the order of 12 October 2006 for the first applicant’s detention had been signed by an unauthorised official and declared it null and void. The court held, however, that it did not have the power to order the first applicant’s release. No appeal was lodged against that judgment. It became final on 2 June 2009. F. Amendments to the Aliens Act, the first applicant’s release and other relevant developments 39. On 15 May 2009 the Aliens Act was amended with the aim of incorporating into Bulgarian law Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals. 40. Under the new section 46a of the Aliens Act, the director of the detention centre for aliens is required to submit to the relevant court a list of persons who have been detained for more than six months and the court must decide of its own motion on their continued detention or release. 41. In accordance with this new procedure, the situation of a number of aliens, including the first applicant, was reviewed by the Sofia Administrative Court in a decision of 12 June 2009. The decision was presented to the first applicant to read but he was not given a copy of it. 42. On 30 June 2009 the Director of the Migration Directorate of the national police, referring to the decision of the Sofia Administrative Court of 12 June 2009, issued an order which revoked the order of 12 October 2006 for the first applicant’s detention and imposed on him the obligation to report daily to the local police station. The judgment of the Sofia City Court of 2 April 2009 (see paragraph 38 above) was not mentioned. 43. The order of 30 June 2009 was served on the applicant on 3 July 2009 and he was released on the same day. 44. By a decision of 5 October 2009 the third and fourth applicants were granted refugee status in Bulgaria. The grounds for that decision have not been communicated to the Court. | This case concerned the detention pending expulsion from Bulgaria of an Afghan father of two young children and the impossibility for him to effectively challenge his situation. |
261 | Article 3 (prohibition of torture and inhuman or degrading punishment or treatment) of the Convention | I. THE CIRCUMSTANCES OF THE CASE 13. The applicant was born in 1949 and is currently being held in İmralı Prison (Mudanya, Bursa, Turkey ). Prior to his arrest, he was the leader of the PKK ( Workers'Party of Kurdistan ). The facts of the case, as submitted by the parties, may be summarised as follows. A. The applicant's arrest and transfer to Turkey 14. On 9 October 1998 the applicant was expelled from Syria, where he had been living for many years. He arrived the same day in Greece, where the Greek authorities asked him to leave Greek territory within two hours and refused his application for political asylum. On 10 October 1998 the applicant travelled to Moscow in an aircraft that had been chartered by the Greek secret services. His application for political asylum in Russia was accepted by the Duma, but the Russian Prime Minister did not implement that decision. 15. On 12 November 1998 the applicant went to Rome, where he made an application for political asylum. The Italian authorities initially detained him but subsequently placed him under house arrest. Although they refused to extradite him to Turkey, they also rejected his application for refugee status and the applicant had to bow to pressure for him to leave Italy. After spending either one or two days in Russia, he returned to Greece, probably on 1 February 1999. The following day ( 2 February 1999 ), the applicant was taken to Kenya. He was met at Nairobi Airport by officials from the Greek embassy and accommodated at the ambassador's residence. He lodged an application with the Greek ambassador for political asylum in Greece, but never received a reply. 16. On 15 February 1999 the Kenyan Ministry of Foreign Affairs announced that Mr Öcalan had been on board an aircraft that had landed in Nairobi on 2 February 1999 and had entered Kenyan territory accompanied by Greek officials without declaring his identity or going through passport control. It added that the Kenyan Minister for Foreign Affairs had summoned the Greek ambassador in Nairobi in order to elicit information about the applicant's identity. After initially stating that the person concerned was not Mr Öcalan, on being pressed by the Kenyan authorities the Greek ambassador had gone on to acknowledge that it was in fact him. The Kenyan Minister for Foreign Affairs had been informed by the Greek ambassador that the authorities in Athens had agreed to arrange for Mr Öcalan's departure from Kenya. The Kenyan Minister for Foreign Affairs also stated that Kenyan diplomatic missions abroad had been the target of terrorist attacks and that the applicant's presence in Kenya constituted a major security risk. In those circumstances, the Kenyan government was surprised that Greece, a State with which it enjoyed friendly relations, could knowingly have put Kenya in such a difficult position, exposing it to suspicion and the risk of attacks. Referring to the Greek ambassador's role in the events, the Kenyan government indicated that it had serious reservations about his credibility and requested his immediate recall. The Kenyan Minister for Foreign Affairs added that the Kenyan authorities had played no part in the applicant's arrest and had had no say in the choice of his final destination. The Minister had not been informed of any operations by Turkish forces at the time of the applicant's departure and there had been no consultations between the Kenyan and Turkish governments on the subject. 17. On the final day of his stay in Nairobi, the applicant was informed by the Greek ambassador after the latter had returned from a meeting with the Kenyan Minister for Foreign Affairs that he was free to leave for the destination of his choice and that the Netherlands were prepared to accept him. On 15 February 1999 Kenyan officials went to the Greek embassy to take Mr Öcalan to the airport. The Greek ambassador said that he wished to accompany the applicant to the airport in person and a discussion between the ambassador and the Kenyan officials ensued. In the end, the applicant got into a car driven by a Kenyan official. On the way to the airport, this car left the convoy and, taking a route reserved for security personnel in the international transit area of Nairobi Airport, took him to an aircraft in which Turkish officials were waiting for him. The applicant was then arrested after boarding the aircraft at approximately 8 p.m. 18. The Turkish courts had issued seven warrants for Mr Öcalan's arrest and a wanted notice ( Red Notice) had been circulated by Interpol. In each of those documents, the applicant was accused of founding an armed gang in order to destroy the territorial integrity of the Turkish State and of instigating various terrorist acts that had resulted in loss of life. On the flight from Kenya to Turkey, the applicant was accompanied by an army doctor from the moment of his arrest. A video recording and photographs taken of Mr Öcalan in the aircraft for use by the police were leaked to the press and published. In the meantime, the inmates of İmralı Prison were transferred to other prisons. 19. The applicant was kept blindfolded throughout the flight except when the Turkish officials wore masks. The blindfold was removed as soon as the officials put their masks on. According to the Government, the blindfold was removed as soon as the aircraft entered Turkish airspace. The applicant was taken into custody at İmralı Prison on 16 February 1999. On the journey from the airport in Turkey to İmralı Prison, he wore a hood. In photographs that were taken on the island of İmralı in Turkey, the applicant appears without a hood or blindfold. He later said that he had been given tranquillisers, probably at the Greek embassy in Nairobi. B. Police custody on the island of İmralı 20. From 16 February 1999 onwards, the applicant was interrogated by members of the security forces. On 20 February 1999 a judge ruled on the basis of information in the case file that he should remain in police custody for a further three days as the interrogation had not been completed. 21. Judges and prosecutors from the Ankara National Security Court arrived on the island of İmralı on 21 February 1999. 22. According to the applicant, on 22 February 1999 sixteen lawyers instructed by his family applied to the National Security Court for permission to see him. They were informed verbally that only one lawyer would be allowed access. Lawyers who went to Mudanya (the embarkation point for the island of İmralı) on 23 February 1999 were told by the administrative authorities that they could not visit the applicant. The applicant also alleges that his lawyers were harassed by a crowd at the instigation of plain-clothes police officers or at least with their tacit approval. 23. As soon as the applicant's detention began, the island of İmralı was decreed a prohibited military zone. According to the applicant, the security arrangements in his case were managed by a “crisis desk” set up at Mudanya. It was the crisis desk that was responsible for granting lawyers and other visitors access to the applicant. According to the Government, special measures were taken to ensure the applicant's safety. He had many enemies who might have been tempted to make an attempt on his life, and it was for security reasons that lawyers were searched. 24. On 22 February 1999 the public prosecutor at the Ankara National Security Court questioned the applicant and took a statement from him as an accused. The applicant told the prosecutor that he was the founder of the PKK and its current leader. Initially, his and the PKK's aim had been to found an independent Kurdish State, but with the passage of time they had changed their objective and sought to secure a share of power for the Kurds as a free people who had played an important role in the founding of the Republic. The applicant confessed that village guards were a prime target for the PKK. He also confirmed that the PKK had used violent methods against civilians, in particular from 1987 onwards, but that he was personally opposed to such methods and had tried in vain to prevent their being used. He told the prosecutor that the warlords who wanted to seize power within the PKK had exerted part of their pressure on the Kurdish population; some of these warlords had been tried and found guilty by the PKK and had been executed with his personal approval. He acknowledged that the Turkish government's estimate of the number of those killed 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. He added that he had decided in 1993 to declare a ceasefire, acting on a request by the Turkish President, Mr Özal, which had been conveyed to him by the Kurdish leader Celal Talabani. The applicant also told the prosecutor that after leaving Syria on 9 October 1998 he had gone first to Greece and then to Russia and Italy. When the latter two countries refused to grant him the status of political refugee, he had been taken to Kenya by the Greek secret services. C. Appearance before a judge and pre-trial detention 25. 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. The applicant did not apply to the National Security Court to have that decision set aside. Before the judge he repeated the statement he had made to the prosecutor. He said that decisions taken within the PKK were submitted to him as founder and leader of the organisation for final approval. In the period from 1973 to 1978, the PKK's activities had been political. In 1977 and 1978, the PKK had organised armed attacks on the ağalar (major landowners). In 1979, following a visit by the applicant to Lebanon, the PKK had begun its paramilitary preparations. Since 1984, the PKK had carried on an armed struggle within Turkey. The regional leaders decided on armed actions and the applicant confirmed the general plan for such actions. He had taken the strategic and tactical decisions for the organisation as a whole. The units had carried out the decisions. D. Contact with the outside world during the judicial investigation and conditions at İmralı Prison 26. On the day after the applicant's arrival in Turkey, his Turkish lawyer, Mr Feridun Çelik, asked to visit him. He was prevented by members of the security forces from leaving the premises of the Diyarbakır Human Rights Association and was subsequently arrested together with seven other lawyers. 27. At Istanbul Airport on 17 February 1999, Ms Böhler, Ms Prakken and their partner Mr Koppen were refused leave to enter Turkey to visit the applicant, on the grounds that they could not represent him in Turkey and that Ms Böhler's past history (she was suspected of having campaigned against Turkey's interests and of having taken part in meetings organised by the PKK) created a risk of prejudice to public order in Turkey. 28. On 25 February 1999 the applicant was able to talk to two of the sixteen lawyers who had asked to see him, Mr Z. Okçuoğlu and Mr H. Korkut. The first conversation took place in the presence of a judge and of members of the security forces wearing masks. The latter decided that it should not last longer than twenty minutes. The record of that conversation was handed over to the National Security Court. The applicant's other representatives were given leave to have their authority to act before the Court signed and to see their client later. 29. During the preliminary investigation between 15 February 1999, when the applicant was arrested, and 24 April 1999, when the trial began, the applicant had twelve meetings in private with his lawyers. The dates and duration of the meetings were as follows: 11 March (45 minutes), 16 March (1 hour), 19 March (1 hour), 23 March (57 minutes), 26 March (1 hour 27 minutes), 2 April (1 hour), 6 April (1 hour), 8 April (61 minutes), 12 April (59 minutes), 15 April (1 hour), 19 April (1 hour) and 22 April (1 hour). 30. According to the applicant, his conversations with his lawyers were monitored from behind glass panels and filmed with a video camera. After the first two short visits, the applicant's contact with his lawyers was restricted to two visits per week, lasting an hour each. On each visit, the lawyers were searched five times and required to fill in a very detailed questionnaire. He and his advisers were not allowed to exchange documents or take notes at their meetings. The applicant's representatives were unable to give him either a copy of his case file (other than the bill of indictment, which was served by the prosecution) or any other material that would allow him to prepare his defence. 31. According to the Government, no restrictions were placed on the applicant as regards either the number of visits by his lawyers or their duration. Apart from the first visit, which took place under the supervision of a judge and members of the security forces, the meetings were held subject to the restrictions provided for in the Code of Criminal Procedure. In order to ensure their safety, the lawyers were taken to the island of İmralı by boat after embarking at a private quay. Hotel rooms were booked for them near the embarkation point. According to the Government, no restrictions were placed on the applicant's correspondence. 32. In the meantime, on 2 March 1999, delegates of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( CPT) visited İmralı Prison. In a letter of 22 March 1999 to the representatives of the Government, they indicated that the applicant was physically in good health and his cell was comfortable. The CPT drew the Government's attention to the fact that the applicant's solitary confinement and his limited access to the open air could affect him psychologically. 33. The CPT delegates next visited İmralı Prison, where the applicant is the sole inmate, as part of their mission to Turkey from 2 to 14 September 2001. The delegates found that the cell occupied by the applicant was large enough to accommodate a prisoner and equipped with a bed, table, armchair and bookshelves. It also had an air-conditioning system, washing and toilet facilities and a window overlooking an inner courtyard. The applicant had access to books, newspapers and a radio, but not to television programmes or a telephone. However, he received twice daily medical checks by doctors and, in principle, was visited by his lawyers once a week. 34. On its visit of 16-17 February 2003, the CPT noted that visits to the applicant by his lawyers and members of his family were often cancelled owing to adverse weather conditions and inadequate means of transport. E. The trial at the National Security Court 35. In a bill of indictment preferred on 24 April 1999 (and joined to several others that had been drawn up in the applicant's absence by various public prosecutors'offices between 1989 and 1998), the public prosecutor at the Ankara National Security Court accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory. He sought the death penalty under Article 125 of the Criminal Code. 36. The case file ran to 17,000 pages and had been prepared by joining the files in seven sets of proceedings that were pending against the applicant in various national security courts. The applicant's lawyers were given access to the case file and the bill of indictment on 7 May 1999. Since the judicial authorities had not been able to supply a copy of the file, the applicant's lawyers had brought their own photocopier and finished copying the file on 15 May 1999. The prosecution had omitted to include certain documents in it, such as those concerning the applicant's arrest in Kenya and his transfer to Turkey. 37. The first two hearings, held in Ankara on 24 and 30 March 1999 in the applicant's absence, were taken up with procedural matters, such as third-party applications to intervene in the proceedings or the measures to be taken in readiness for the hearings on the island of İmralı and to enable the parties to take part in and members of the public to attend the trial. According to the Government, allegations that the lawyers were harassed by the police when they emerged from the first hearing in Ankara on 24 March 1999 have been the subject of a criminal investigation. 38. From 31 May to 29 June 1999, the National Security Court held eight hearings attended by the applicant on the island of İmralı. The applicant told the court, among other things, that he stood by his statements to the prosecutor and the judge. He confirmed that he was the most senior PKK agent and leader of the organisation and that he had instructed the members of the organisation to carry out certain acts. He said that he had not been ill-treated or verbally abused since his arrest. The applicant's representatives argued that the National Security Court could not be regarded as an independent and impartial tribunal within the meaning of Article 6 of the Convention. The applicant stated that, for his part, he accepted the court's jurisdiction. 39. The applicant said that he was willing to cooperate with the Turkish State in order to bring to an end the acts of violence associated with the Kurdish question and promised to halt the PKK's armed struggle. He indicated that he wished to “work for peace and fraternity and achieve that aim within the Republic of Turkey ”. He observed that, while he had initially envisaged an armed struggle for the independence of the population of Kurdish origin, that had been in reaction to the political pressure the government had exerted on the Kurdish population. When circumstances changed, he had decided on a different approach and limited his demands to autonomy or to a recognition of the Kurds'cultural rights within a democratic society. He accepted political responsibility for the PKK's general strategy, but disclaimed criminal liability for acts of violence which went beyond the PKK's stated policy. In order to highlight the rapprochement between the PKK and the government, he applied to have the government officials who had conducted negotiations with the PKK examined as witnesses for the defence. That application was refused by the National Security Court. 40. The applicant's lawyers'applications for the communication of additional documents or for further investigations in order to collect more evidence were refused by the National Security Court on the ground that they were delaying tactics. 41. The applicant's lawyers complained to the National Security Court about the restrictions and the difficulties they were having in conferring with their client. Their request to be permitted to confer with him during lunch breaks was accepted by the National Security Court at a hearing on 1 June 1999. The lawyers did not appear at the hearing on 3 June 1999. At their request, transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on 4 June 1999. One of the applicant's counsel thanked the National Security Court for having established a dispassionate atmosphere. 42. On 8 June 1999 the prosecution made their final submissions. They sought the death penalty for the applicant under Article 125 of the Criminal Code. The applicant's advisers requested a one-month adjournment to enable them to prepare their final submissions. The National Security Court granted them fifteen days, the statutory maximum allowed. 43. On 18 June 1999 Turkey's Grand National Assembly amended Article 143 of the Constitution to exclude both military judges and military prosecutors from national security courts. Similar amendments were made on 22 June 1999 to the law on national security courts. 44. At the hearing on 23 June 1999, the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time. The National Security Court noted that the new judge had already read the file and the transcripts, in accordance with Article 381 § 2 of the Code of Criminal Procedure, and had followed the proceedings from the outset and attended the hearings. Counsel for the applicant opposed the appointment of the civilian judge owing to his previous involvement in the case. Their application for an order requiring him to stand down was dismissed by the National Security Court. 45. At the same hearing, counsel for the applicant set out the applicant's substantive defence to the charges. 46. On 29 June 1999, after hearing the applicant's final representations, 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. It sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of the organisation, whose aim was to detach a part of the territory of the Republic of Turkey so as to form a Kurdish State with a political regime based on Marxist-Leninist ideology. 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 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, the thousands of deaths caused by them, including those of children, women and old people, and the major, pressing threat to the country that those acts posed. F. The appeal on points of law 47. The applicant appealed on points of law against the above judgment, which, on account of the severity of the sentence, was in any event automatically subject to review by the Court of Cassation. 48. In a judgment adopted on 22 November 1999 and delivered on 25 November, the Court of Cassation upheld the judgment of 29 June 1999 in every respect. It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again given that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement. The Court of Cassation also pointed out that the Ankara National Security Court was empowered by law to hold its hearings outside the area of its territorial jurisdiction on security grounds, among other reasons. 49. As to the merits, the Court of Cassation had regard to the fact that the applicant was the founder and president of the PKK. It referred to the latter's aim and activities, namely that it sought the foundation of a Kurdish State on a territory that Turkey should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces, industrial premises and tourist facilities in the hope of weakening the authority of the State. The PKK also had a political front (the ERNK ) and a military wing (the ARNK ), which operated under its control. Its income was derived mainly from “taxes”, “fines”, donations, subscriptions, and the proceeds of armed robberies, gun-running and drug trafficking. According to the Court of Cassation, the applicant led all three of these groups. In his speeches at party conferences, in his radio and television appearances and in the orders he had given to his activists, the applicant had instructed his supporters to resort to violence, indicated combat tactics, imposed penalties on those who did not obey his instructions and incited the civilian population to put words into action. As a result of the acts of violence carried out by the PKK from 1978 until the applicant's arrest (in all, 6,036 armed attacks, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings), 4,472 civilians, 3,874 soldiers, 247 police officers and 1,225 village guards had died. 50. The Court of Cassation held that the PKK, founded and led by the applicant, represented a substantial, serious and pressing threat to the country's integrity. It ruled that the acts of which the applicant was accused constituted the offence laid down in Article 125 of the Criminal Code and that it was not necessary, in order for that provision to apply, for the applicant – the founder and president of the PKK and the instigator of the acts of violence committed by that organisation – personally to have used a weapon. G. Commutation of the death penalty to life imprisonment 51. 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, which was 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. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant's death sentence to life imprisonment. It ruled that the offences under Article 125 of the Criminal Code of which the applicant had been accused had been committed in peacetime and constituted terrorist acts. The Nationalist Action Party ( MHP – Milliyetçi Hareket Partisi ), a political party with representatives in Parliament, applied to the Constitutional Court for an order setting aside certain provisions of Law no. 4771, including the provision abolishing the death penalty in peacetime for persons found guilty of terrorist offences. The Constitutional Court dismissed that application in a judgment of 27 December 2002. | The applicant, founder of the illegal organisation PKK complained in particular 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, whether by telephone or through visits) in the prison on the island of İmralı. |
749 | Freedom of assembly and association (Article 11 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1977 and lives in Bucharest. 6. On 11 October 2009 the EcoPolis association, founded by the applicant and four other associates, opened proceedings before the Bucharest District Court to seek registration in the Register of Associations and Foundations kept by that court. It also asked the court to grant it legal personality. 7. The association ’ s goal, as declared in its memorandum of association ( act constitutiv ) and in Article 2 of its articles of association ( statutul asociației ), was that of promoting the principles of sustainable development at the public policy level in Romania ( promovarea principiilor dezvoltării durabile la nivelul politicilor publice din România ). The association ’ s objectives, as declared in Article 7 of its articles of association, were: to increase expertise in the development of sustainable public policies in Romania ( creşterea expertizei ȋn elaborarea politicilor publice durabile din România ); to improve the process of the development of sustainable public policies by facilitating public participation in and access to relevant information about the environment; to increase the accountability of the relevant official bodies by scrutinising the implementation of public policies with an impact on the environment; to facilitate the access of official bodies to best practices by examining the Government ’ s environmental initiatives in a European context; to ensure transparency in the work of public institutions and increase their responsibility for their actions in relation to other citizens; to review whether public institutions worked on the basis of principles of sustainability; and to defend the right to a clean environment, as provided by international treaties. The activities envisaged by the association in order to achieve its objectives, as declared in Article 8 of its articles of association, were: research and analysis; public debates and conferences; monitoring the implementation of European Union directives; public communication campaigns; opinion polls; reviewing the development and implementation of public policies in the environmental field; training; raising citizens ’ awareness; informing people of matters of public concern; raising the awareness of the community and of public authorities about the need to protect the environment; organising meetings between citizens and representatives of public authorities; organising debates and opinion polls on issues impacting the environment; developing programmes in partnership with public authorities; active involvement of citizens in the development of public policies and the decision - making process; improving the legal framework; setting up annual prizes for environmental activities; awarding scholarships for promoting sustainable development; networking with similar national and international organisations; supporting and defending the association ’ s members and volunteers; and other lawful activities. 8. By an interlocutory judgment of 24 October 2009, delivered in private, the Bucharest District Court granted the association legal personality and ordered its registration in the Register of Associations and Foundations. The court held that the organisation had attached all the lawfully required documents to the application for registration and that the documents had complied both in form and content with the requirements set out by Government Ordinance no. 26/2000. Moreover, the goal set by the association complied with the provisions of Articles 1 and 4 of that Ordinance. 9. The Bucharest Public Prosecutor ’ s Office lodged an appeal on points of law ( recurs ) against the interlocutory judgment of 24 October 2009. It argued that it interpreted the association ’ s declared goal as belonging to the field of activities of a political party. That interpretation was supported by the association ’ s objectives and by the activities it planned, as set out in Articles 7 and 8 of the articles of association. However, a political party could not be registered under the provisions of Government Ordinance no. 26/2000. 10. By a final judgment of 10 February 2010 the Bucharest County Court allowed the appeal on points of law by the Public Prosecutor ’ s Office and rejected the organisation ’ s request for registration. It held that the goal of the association, as declared in its memorandum and articles of association, was that of promoting the principles of sustainable development at the public policy level in Romania. Also, according to Article 7 of its articles of association, one of the association ’ s objectives was to increase expertise in the development of sustainable public policies in Romania. The court considered that the concepts used by the organisation had been very general and had run the risk of being understood as belonging to the field of activities of political parties. The association ’ s objectives could likewise have been interpreted as belonging to the realm of activity of a political party, although Government Ordinance no. 26/2000 expressly prohibited the use of the ordinance for the registration of political parties. | The applicant, founder of an environmental association, complained in particular about the Romanian courts’ refusal to register the association in question, without giving him time to rectify any irregularities in the articles of association – as had been provided for by national law – before ending the registration process. |
275 | (Suspected) terrorists | 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. | In this case, the two applicants, who were IRA suspects, were arrested by the police in Northern Ireland and kept in police custody for six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes, respectively. They both complained in particular that they had not been brought promptly before a judge. |
1,004 | Cases concerning the NATO operation in former Yugoslavia | I. THE CIRCUMSTANCES OF THE CASE 9. The ten applicants are all citizens of Serbia and Montenegro, which was known at the time of the events in question as the Federal Republic of Yugoslavia (“ the FRY”). The first two applicants, Dusan and Zoran Markovic, were born in 1924 and 1952 respectively, and applied to the Court on behalf of Dejan Markovic, deceased son of Dusan Markovic and brother of Zoran Markovic. The third and fourth applicants, Dusika and Vladimir Jontic, were born in 1948 and 1978 respectively, and applied to the Court on behalf of Slobodan Jontic, deceased husband of Dusika Jontic and father of Vladimir Jontic. The fifth applicant, Draga Jankovic, was born in 1947 and applied to the Court on behalf of her deceased husband, Milovan Jankovic. The sixth and seventh applicants, Mirjana and Slavica Stevanovic, were born in 1945 and 1974 respectively, and applied to the Court on behalf of Slavisa Stevanovic, deceased son of Mirjana Stevanovic and brother of Slavica Stevanovic. The eighth, ninth and tenth applicants, Milena, Obrad and Dejan Dragojevic, were born in 1953, 1946 and 1975 respectively, and applied to the Court on behalf of Dragorad Dragojevic, deceased son of Milena and Obrad Dragojevic and brother of Dejan Dragojevic. 10. The applicants lodged the present application to complain of the outcome of an action in damages which they had brought in the Italian courts in respect of an air strike against the FRY. A. Background and the bombing of Radio- televizija Srbija (RTS) 11. The facts of the case relate to the same events as those considered by the Court in its decision in the case of Banković and Others v. Belgium and Others ( (dec. ) [GC], no. 52207/99, ECHR 2001-XII). The facts in that case were summarised as follows: “ 6. The conflict in Kosovo between Serbian and Kosovar Albanian forces during 1998 and 1999 is well documented. Against the background of the escalating conflict, together with the growing concerns and unsuccessful diplomatic initiatives of the international community, the six-nation Contact Group (established in 1992 by the London Conference) met and agreed to convene negotiations between the parties to the conflict. 7. On 30 January 1999, and following a decision of its North Atlantic Council (NAC), the North Atlantic Treaty Organisation (NATO) announced air strikes on the territory of the FRY in the case of non-compliance with the demands of the international community. Negotiations consequently took place between the parties to the conflict from 6 to 23 February 1999 in Rambouillet and from 15 to 18 March 1999 in Paris. The resulting proposed peace agreement was signed by the Kosovar Albanian delegation but not by the Serbian delegation. 8. Considering that all efforts to achieve a negotiated political solution to the Kosovo crisis had failed, the NAC decided on, and on 23 March 1999 the Secretary General of NATO announced, the beginning of air strikes (Operation Allied Force) against the FRY. The air strikes lasted from 24 March to 8 June 1999. ... 9. Three television channels and four radio stations operated from the RTS facilities in Belgrade. The main production facilities were housed in three buildings at Takovska Street. The master control room was housed on the first floor of one of the buildings and was staffed mainly by technical staff. 10. On 23 April 1999, just after 2 a.m. approximately, one of the RTS buildings at Takovska Street was hit by a missile launched from a NATO forces ’ aircraft. Two of the four floors of the building collapsed and the master control room was destroyed. 11. ... Twenty-four targets were hit in the FRY that night, including three in Belgrade .” 12. The partial collapse of the RTS building caused the deaths of sixteen people, including the five relatives of the applicants. B. Civil proceedings in the Rome District Court 13. On 31 May 2000 the first four applicants brought an action in damages in the Rome District Court under Article 2043 of the Italian Civil Code. The other six applicants applied to be joined to the proceedings on 3 November 2000. 14. The applicants believed that civil liability for the deaths of their relatives lay with the Italian Prime Minister ’ s Office and Ministry of Defence and with the Command of NATO ’ s Allied Forces in Southern Europe (AFSOUTH ). They argued that the Italian courts had jurisdiction to hear the case. In particular, on the basis of the wording of Article 6 of the Italian Criminal Code, they submitted that the unlawful act that had caused the alleged damage should be regarded as having been committed in Italy inasmuch as the military action had been organised on Italian territory and part of it had taken place there. They based this argument on the extent of Italy ’ s commitment – involving substantial political and logistical support – to the military mission in question. Specifically, Italy, unlike other NATO members, had provided the air bases from which the aircraft that had bombed Belgrade and the RTS had taken off. They also relied in support of their claim on Article 174 of the Wartime Military Criminal Code and on the London Convention of 1951 and the Protocol Additional to the Geneva Conventions. 15. The defendants argued that the Italian courts had no jurisdiction to hear the case. The proceedings against AFSOUTH were discontinued by the applicants. 16. The Prime Minister ’ s Office and the Ministry of Defence subsequently sought a preliminary ruling from the Court of Cassation on the question of jurisdiction ( regolamento preventivo di giurisdizione ) under Article 41 of the Italian Code of Civil Procedure. 17. In written submissions dated 16 November 2001, Assistant Principal State Counsel at the Court of Cassation argued that the application for a preliminary ruling should be declared inadmissible as it concerned the merits of the claim, not the issue of jurisdiction. He stated as follows: “The governmental bodies defending this claim have requested a preliminary ruling on the issue of jurisdiction, arguing that : (a) since the action is brought against the Italian State as a specific (unitary) subject of international law for acts performed in the exercise of its imperium ( iure imperii ), it cannot be brought in the Italian courts; (b) paragraph 5 of Article VIII of the London Convention of 19 June 1951, which Italy ratified by Law no. 1335 of 1955, does not provide any basis for the action either, as it applies to damage caused in the receiving State. The government seek to show through this jurisdictional issue that the Italian legal system does not contain any provision or principle capable of providing a basis for the alleged personal right [ diritto soggettivo perfetto ] or of guaranteeing it in the abstract. Accordingly, the position is that: (a) the government argue that the Italian State cannot be held liable for acts carried out in the exercise of its imperium; (b) in addition, they deny that the said London Convention can be used to determine the place where the acts which caused the alleged damage took place (it is not by accident that the applicant has cited the provisions of the Criminal Code referring to the place where the offence was committed). It follows that the questions thus raised go to the merits, not to the issue of jurisdiction (see judgment no. 903 of 17 December 1999 of the Court of Cassation, sitting as a full court). For these reasons, the Court of Cassation, sitting as a full court, is asked to declare the application inadmissible, with all the consequences which that entails in law.” 18. In a ruling (no. 8157) of 8 February 2002, which was deposited with the registry on 5 June 2002 and conveyed to the applicants on 11 June 2002, the Court of Cassation, sitting as a full court ( Sezioni Unite ), found that the Italian courts had no jurisdiction. It reasoned as follows: “ ... 2. The claim seeks to impute liability to the Italian State on the basis of an act of war, in particular the conduct of hostilities through aerial warfare. The choice of the means that will be used to conduct hostilities is an act of government. These are acts through which political functions are performed and the Constitution provides for them to be assigned to a constitutional body. The nature of such functions precludes any claim to a protected interest in relation thereto, so that the acts by which they are carried out may or may not have a specific content – see the judgments of the full court of 12 July 1968 (no. 2452), 17 October 1980 (no. 5583) and 8 January 1993 (no. 124). With respect to acts of this type, no court has the power to review the manner in which the function was performed. 3. While the purpose of the provisions of international agreements governing the conduct of hostilities – the Protocol Additional to the Geneva Conventions (Articles 35 .2, 48, 49, 51, 52 and 57) and the European Convention on Human Rights (Articles 2 and 15 § 2 ) – is to protect civilians in the event of attack, they are rules of international law, and so also regulate relations between States. These same treaties lay down the procedure for finding a violation and the sanctions in the event of liability (Article 91 of the Protocol and Article 41 of the Convention); they also designate the international courts and tribunals with jurisdiction to make such a finding. However, the legislation implementing these rules in the Italian State does not contain any express provision enabling injured parties to seek reparation from the State for damage sustained as a result of a violation of the rules of international law. The notion that provisions to that effect may implicitly have been introduced into the system through the implementation of rules of international law is at odds with the converse principle that has been mentioned which holds that protected individual interests are no bar to carrying out functions of a political nature. Indeed, in order to enable reparation to be provided in the domestic system for loss sustained as a result of a violation of the ‘ reasonable time ’ requirement under Article 6 of the Convention on Human Rights, [the State] introduced appropriate legislation (Law no. 89 of 24 March 2001). 4. No entitlement to a review of the government ’ s decision concerning the conduct of hostilities with respect to the NATO aerial operations against the Federal Republic of Yugoslavia can be found in the London Convention of 1951. The fact that the aircraft used to bomb the Belgrade radio and television station were able to use bases situated on Italian territory constitutes but one element of the highly complex operation whose lawfulness it is sought to review and is not therefore relevant to the application of the rule laid down in paragraph 5 of Article VIII of the Convention, which on the contrary presupposes the commission of an act that is amenable to review.” 19. The Court of Cassation ’ s ruling brought to an end, ipso jure, the proceedings in the Rome District Court. | The application concerned an action in damages brought by the ten applicants, nationals of the former Serbia and Montenegro, before the Italian courts in respect of the deaths of their relatives as a result of air strikes on 23 April 1999 by the NATO alliance on the headquarters of Radio Televizije Srbije (RTS) in Belgrade. They alleged, relying on Article 6 (right to a fair trial) read in conjunction with Article 1 (obligation to respect human rights) of the Convention, that they were denied access to a court. |
220 | Voluntary waiver of right to assistance of a lawyer | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1946 and lives in the village of Lazarevo in the Jewish Autonomous Region, Russia. 6. The applicant worked as a driver for a private company. 7. It appears that at the time there were several reported cases of the company workers allegedly pouring out diesel from their service vehicles. Thus the company's director asked the competent authorities to carry out checks. 8. On 21 February 2001 while driving home in the company of another person (Mr Kh), the applicant's car was stopped and inspected by the police. Two cans of diesel were discovered in the car. 9. According to the applicant, in reply to the questioning by the police he did not tell about the purchase of the fuel because he felt intimidated and did not have a receipt to prove the purchase (see also paragraph 14 below). That is why he explained that he had poured the fuel from the tank of his service vehicle (see also paragraph 11 below). 10. Immediately, a vehicle inspection record was drawn under Article 178 of the RSFSR Code of Criminal Procedure (CCrP) in force at the material time (see paragraph 26 below). The record reads as follows: “ Vehicle Inspection Record [drawn] at Birofeld village on 21 February 2001 from 8.50 to 9.20 [pm]. Officers B and L in the presence of attesting witnesses K and P and [the applicant] have carried out an inspection of VAZ-21061 car in compliance with Articles 178 and 179 of the RSFSR Code of Criminal Procedure and have drawn this record under Article 182 of the Code. Before the start of the inspection all the above persons have been informed of their rights to be present throughout the proceeding and to make comments in relation to the inspection ... The attesting witnesses have been informed of their obligation to attest the fact of the inspection and its results (Article 135 of the Code) ... During the inspection one passenger was present in the car; there was a white plastic can with fuel ( ten litres). There was another metallic can of fuel ( twenty litres) in the car boot ... The physical evidence has been seized in order to be attached to a criminal file: the plastic can with fuel (ten litres) and the metallic can with twenty litres of fuel ... Requests and comments by the participants: [the applicant] explained that he had poured out the fuel from the company premises. I have read the record and agree with its contents. Signatures: Officer B, attesting witnesses K and P, [the applicant], officer L. ” 11. Having completed the inspection record, officer B put in writing a statement entitled “Explanations”, which included a note concerning Article 51 of the Constitution of the Russian Federation on the privilege against self-incrimination (see paragraph 21 below). The “Explanations” read as follows: “ Explanations [put in writing] on 21 February 2001 at Birofeld village. I, officer B ..., have interviewed [the applicant] ... The contents of Article 51 of the Constitution have been explained to me. { [the applicant's signature] } I [the applicant] make the following statement. Since 1997 I have been employed as a driver by a private company. On 21 February 2001 I arrived to my workplace at 9 am. During the day I was repairing my service vehicle. In the evening I poured out thirty litres of fuel from the tank of my service vehicle. I have previously brought the cans, ten and twenty litres each, from home. After work, at around 8 pm, I was driving home in my car and was stopped by the police. The car was inspected in the presence of the attesting witnesses. I poured out the fuel for personal use. {in the applicant's handwriting} I have read this statement. It is correct. {[the applicant's] signature.} {Officer's B signature.}” On the same day, both attesting witnesses made written statements, indicating that they had been present during the inspection of the car and seizure of the fuel. They confirmed that the applicant had explained that he had poured out the fuel from the company premises for personal use. 12. The applicant was not detained. On 2 March 2001 an inquirer compiled a report under a so-called record-based procedure (see paragraph 23 below) on the events of 21 February 2001. The report reads as follows: “I, inquirer P, have examined the data concerning theft. As required under Article 415 of the RSFSF Code of Criminal Procedure, I have compiled this report, which states as follows: At 8 pm on 21 February 2001 [the applicant] ... being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres. Thereby, he caused to the company pecuniary damage in the amount of 279 roubles. His actions disclose an offence of theft punishable under Article 158 § 1 of the Criminal Code. The above has been confirmed by the following evidence: 1. the inspection record. 2. [the applicant's] written statement. 3. Mr K's written statement. 4. Mr P's written statement ... {Inquirer P's signature}” 13. On the same day, the inquirer's superior opened a criminal case against the applicant on suspicion of theft and summoned him (see paragraph 23 below). The act of accusation read as follows: “I, major K, having examined the [inquirer's] report and the enclosed documents, consider that there are sufficient grounds indicating that [the applicant] had committed the offence of theft punishable under Articile 158 of the Criminal Code. Pursuant to the procedure under Article 415 § 4 of the RSFSR Code of Criminal Procedure, a criminal case should be opened against [the applicant]... The accusation: At 8 pm on 21 February 2001 [the applicant] ... being at work intentionally stole from his service vehicle the diesel in the amount of thirty litres. Thereby, he caused to the company pecuniary damage in the amount of 279 roubles. Major K's signature I have been informed of the nature of the accusation, the right to have access to the case file, the right to legal representation, the right to make requests and challenge the inquiring authorities'actions. [the applicant's] signature I have studied the case file and have read this document. I have no requests or motions. I do not require legal assistance; this decision is based on reasons unrelated to lack of means. I will defend myself at the trial. [the applicant's] signature” 14. At the trial the applicant was represented by Mr Adamchik, a lawyer practising in Birobidjan. As follows from the trial judgment and the trial record, the applicant contended at the trial that he had purchased the fuel on or around 15 February 2001 at a petrol station; on 21 February 2001 he had put the cans in his car intending to exchange it for firewood later and went to his work; after the working day he was stopped by the police on his way home; when stopped he had not told about the purchase of the fuel because he felt intimidated and had no receipt to prove the purchase. He contended that Mr Kh, who was in his car on 21 February 2001, had seen the applicant purchase the fuel at the petrol station. At the trial the applicant was asked if the inspection record had been drawn up on the spot or in Birofeld. The applicant replied as follows: “[The police] started to draw up the inspection record on the spot. Then a bus arrived. There was a tense situation so we left. The bus was also inspected ... The inspection record was signed in Birofeld. It was started on the spot but was not finished there. ” 15. On 20 March 2001 the applicant submitted to the court an invoice for the purchase of diesel. The court refused to accept the invoice in evidence considering that the applicant did not specify why he had not adduced that evidence at the initial stage of the questioning by the police or at the opening of the trial. The applicant, however, indicated that the invoice had been kept by his wife. It also appears that he specified the name and location of the petrol station where he had allegedly bought it and asked the court to verify this fact. It appears that the court did not follow up his request. 16. The trial court heard the applicant's wife, who claimed that she had purchased the fuel and had given one petrol can to the applicant and that the applicant had purchased the remainder. The court also questioned Mr Kh who claimed to have seen the applicant purchasing diesel. Mr Kh was with the applicant on 21 February 2001 and told the court that he had not witnessed any threats to the applicant from the police officers. The trial court refused to take those testimonies into consideration, considering that those persons were in close or friendly relationship with the defendant and that their testimonies would therefore be prejudiced. 17. Instead, the trial judge relied on the inspection record and the written statement made by the applicant on 21 February 2001, testimonies from the attesting witnesses who had been present during the inspection and seizure of fuel from the applicant's car. The court also examined a Mr F who explained there had been cases of workers pouring out diesel from their service vehicles, and thus the company's director had asked the competent authorities to carry out checks. The applicant's car was apparently stopped during one of the checks. 18. Having examined the evidence, the judge considered that as followed from the inspection record, the applicant had admitted to “have stolen” the diesel from the company premises. By a judgment of 20 April 2001, the Birobidjan District Court convicted the applicant of theft and sentenced him to a suspended sentence of six months'imprisonment. The court held as follows: “It follows from the inspection record that two cans of diesel (thirty litres) were seized from [the applicant's] car ... The applicant explained that he had stolen the diesel from the company premises ... Assessing the defendant's testimony at the trial, the court considers that it is made-up with a view to avoiding criminal responsibility for the crime committed; this testimony has not been supported by any objective evidence. The court takes into account his pre-trial testimony, from which it follows that on 21 February 2001 after the end of his working day he had poured out fuel from his service vehicle and was stopped on his way back home. This testimony is logical and corresponds to witness statement by Mr F, Mr K and Mr P, as well as to the materials in the case file. ” 19. The applicant and his counsel appealed alleging that there was no proof that any diesel had been stolen from the company and that the applicant had not been apprised of the privilege against self-incrimination while the court then relied on his admissions made on 21 February 2001. In his appeal, the prosecutor considered that the applicant's acts should be reclassified as misappropriation of property. On 24 May 2001 the Court of the Jewish Autonomous Region dismissed the appeals and upheld the judgment. The court confirmed that the applicant had been convicted on the basis of his own pre-trial admission and other evidence obtained by lawful means, including the inspection record. The applicant's allegation of self-incrimination had been rightly rejected as unfounded. | Convicted of stealing diesel from the company for which he worked as a driver and sentenced to a suspended prison sentence, the applicant complained that his conviction had been based on admissions he had made to police before the trial in the absence of a lawyer. |
1,086 | Dismissal | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1980 and lives in Athens. 7. The applicant had been working for a jewellery manufacturing company since 2001. On 4 March 2003 he resigned from his post in order to carry out his military service. Afterwards he contacted S.K., the owner of the company, who hired him again on a full - time basis from 1 July 2004 on a monthly salary of 722.92 euros (EUR). 8. In January 2005 the applicant told three of his colleagues – I.M., S.M. and O.G. – that he feared he had contracted the human immunodeficiency virus ( HIV ). On 11 February 2005, while he was on annual leave, that fear was confirmed by a test establishing that he was indeed HIV-positive. On 15 February his employer, S.K., received a letter from the three above-mentioned employees in which they told her that the applicant “ had Aids” and that the company should dismiss him before the end of his annual leave. All three colleagues had tested negative for Aids. 9. In the meantime information about the applicant ’ s health condition had spread throughout the entire company of seventy employees. The staff started complaining to their employer about having to work with a colleague who was HIV-positive and demanded his dismissal. S.K. then invited an occupational -health doctor to come to the company premises and talk to the staff about HIV and how it could be transmitted. The doctor attempted to reassure the staff by explaining the precautions to be taken but they continued to demand the applicant ’ s dismissal. S.K. then considered transferring the applicant to another department at a different location, but the head of that department threatened to resign if the applicant joined his team. S.K. then offered to help the applicant set up his own business if he would tender his resignation. She also offered to pay for him to attend a training course in hairdressing. The applicant refused her offers however. 10. On 21 February 2005 thirty-three employees of the company ( approximately half the total number of staff ) sent a letter to S.K. asking her to dismiss the applicant in order to “ preserve their health and their right to work ”, failing which the harmonious atmosphere in the company would, in their view, be liable to deteriorate. On 23 February 2005, two days before the applicant returned from leave, S.K. dismissed him and paid him the statutory compensation due under Greek law, namely, one month ’ s salary and EUR 843. 41 in respect of holiday leave. 11. Shortly after his dismissal the applicant found another job in a private company. 12. On 13 May 2005 the applicant brought proceedings in the Athens Court of First Instance. He complained that “ unacceptable social prejudices and outdated taboo considerations ” had prevailed over recognition of his contribution to the company where he had worked. He also claimed that he had been unfairly dismissed and that his dismissal was invalid because he had not been paid sufficient compensation. He alleged that he had been dismissed on the basis of “ despicable considerations ” which took no account of the “ human factor or his person ”, that his employer “ had remained manifestly indifferent to the fact that she had thus seriously harmed a hard-working and conscientious employee at the very time when basic humane considerations required that he be supported and had at the same time callously insulted him”, and that his employer had “ treated him with an unjustified and inhumane aversion for his serious health problem”. 13. The applicant added that the only reason that had led S.K. to dismiss him had been (scientifically unfounded ) prejudice against HIV - positive persons and the alleged “ risk ” that they posed in their professional and social relations. It was therefore clear, in the applicant ’ s view, that S.K. ’ s conduct had brutally violated his personality rights, in particular the most intimate ones concerning sensitive personal details. The manner in which he had been dismissed had diminished unacceptably his value as a human being by reducing him to an “ object ” that could be handled according to “personal prejudices and obsessions”. 14. The applicant asked the court to declare the termination of the contract unlawful, order the employer to continue employing him and paying him a salary, and to pay him EUR 9, 397 in unpaid salaries, EUR 1, 068. 62 in holiday bonuses and various other amounts calculated by him and, lastly, the sum of EUR 200, 000 for non-pecuniary damage. 15. In a judgment of 13 June 2006 the court held that the dismissal was unlawful, as contrary to Article 281 of the Civil Code which prohibited the exercise of a right if it manifestly exceeded the limits imposed by good faith or morals. The court found that the sole ground for terminating the contract had been the applicant ’ s illness and awarded him EUR 6 ,339. 18, which corresponded to unpaid salaries since his dismissal. The court considered that the employer ’ s conduct, even taking account of the pressure exerted by her employees, had constituted an abuse of rights. It found that the employer had decided to dismiss the applicant in order to ensure that her company continued operating smoothly and to avoid protests and complaints, thus currying favour with the majority of her staff. 16. However, the court rejected the applicant ’ s complaint that his dismissal had violated his personality rights because it had not been established that the dismissal had been motivated by reprehensible intent or an intention to defame the applicant. The court found, however, that S.K. had dismissed the applicant in order to preserve what she had wrongly believed to be an issue of peaceful working relations within the company. Lastly, the court held that it was not necessary to order the applicant ’ s reinstatement because he had found a new job in the meantime. 17. On 26 February and 15 March 2007 respectively, S.K. and the applicant lodged an appeal against that judgment with the Athens Court of Appeal. 18. In a judgment of 29 January 2008, the Court of Appeal dismissed S.K. ’ s appeal and upheld the applicant ’ s appeal on both grounds, namely, abuse of rights and violation of personality rights. Like the Court of First Instance, the Court of Appeal acknowledged that S.K. had dismissed the applicant after giving in to pressure from staff and in order to preserve a good working environment in the company. The Court of Appeal observed that the employees ’ fears were scientifically unfounded, as the occupational -health doctor had explained. Given the mode of transmission of the virus, there was no danger to their health. Accordingly, their fears were in reality based on prejudice rather than on an established risk; consequently, the applicant ’ s illness could not affect the future smooth operation of the company. 19. The Court of Appeal weighed the need to maintain the smooth operation of the company, which was threatened by scientifically unfounded fears, against the applicant ’ s justified expectation of being protected during the difficult period he was experiencing. It noted that where an employee ’ s illness did not adversely affect work relations or the smooth operation of the company ( through absenteeism or reduced working capacity, for example ), it could not serve as an objective justification for terminating the contract. It noted that the applicant had not been absent from work and that no absence on the ground of illness was foreseeable in the immediate future. Moreover, the nature of the applicant ’ s job, which did not demand excessive effort, precluded the risk of a reduction in his capacity for work since, during the many years in which a person was merely HIV - positive, his or her working capacity was not substantially reduced. 20. It observed that the applicant ’ s illness could not adversely affect the future smooth operation of the company, as none of the employees had left the company between the time when the applicant ’ s illness had been revealed and the termination of his employment contract. It concluded that the fact that S.K. “ had given in to the demands of her employees, dismissed the applicant and terminated his contract could not be justified on grounds of good faith or the employer ’ s interests within the proper meaning of the term ”. 21. The Court of Appeal awarded the applicant the sum of EUR 6,339. 18 in unpaid salaries backdated to the date of his dismissal. It also held that the applicant ’ s personality rights had been infringed as his unfair dismissal had affected both his professional and social status, which were the two facets of an individual ’ s personality. It awarded him the further sum of EUR 1, 200 for non-pecuniary damage under that head. 22. On 4 July 2008, S.K. appealed on points of law against the Court of Appeal ’ s judgment. 23. On 16 October 2008 the applicant also lodged an appeal against the Court of Appeal ’ s judgment. He relied on Articles 180 (nullity of a legal act), 281 ( abuse of rights ) and 932 ( compensation for non-pecuniary damage ) of the Civil Code, on Article 22 ( right to work ) of the Constitution, and on the principle of proportionality regarding the amount of the compensation awarded. Relying on the case-law of the Court of Cassation, he also submitted that where a dismissal had been set aside by a judicial decision as unfair, the employer was under an obligation to reinstate the employee. More specifically, in his second ground of appeal, the applicant submitted that the Court of Appeal had wrongly rejected his request to be reinstated in the company, arguing that reinstatement was the rule in the event of a breach of Article 281, or in the event of an infringement of personality rights or of the right to personal development and participation in professional life. 24. In judgment no. 676/2009 of 17 March 2009 ( finalised on 4 June 2009), the Court of Cassation quashed the Court of Appeal ’ s judgment on the ground, inter alia, that the court had wrongly construed and applied Article 281 of the Civil Code to the facts of the case. It found that termination of an employment contract was not unfair if it was justified by the employer ’ s interests “ in the proper sense of the term ”, such as the restoration of peaceful working relations between employees and the smooth operation of the company where these were liable to be disrupted by maintaining the dismissed employee in his or her post. The Court of Cassation held as follows : “ As the dismissal ... was not motivated by ill-will, revenge or any aggressivity on the part of [the employer] towards [the employee], the dismissal was fully justified by the interests of the employer, in the proper sense of the term [interests ], in that it was done in order to restore peace in the company and its smooth operation. The employees were seriously perturbed by the extremely serious and contagious illness of the [ applicant ], which aroused feelings of insecurity among them and fears for their health, prompting them to request – collectively and in writing – his dismissal and stress that if he were not dismissed the smooth operation of the company would be severely affected ... ” 25. Lastly, the Court of Cassation dismissed the applicant ’ s appeal as devoid of purpose and remitted the case to the Court of Appeal. 26. Neither the applicant nor his former employer took the initiative reserved to them by statute of applying to the Court of Appeal for a ruling on the case remitted to it. | This case concerned the dismissal of an HIV-positive employee in response to pressure from other employees in the company. The applicant alleged that there had been a violation of his right to a private life, the Greek Court of Cassation having found his dismissal – justified by the fact that he was HIV-positive – to be lawful. He also alleged that his dismissal was discriminatory. |
1,071 | Right to respect for private and family life, home and correspondence (Article 8 of the Convention) | A. The circumstances of the case 4. In their capacity as a lawyer and a law firm, the applicants had been retained by Clinique Les Roches Claires, a public limited company ( société anonyme ), to assist and represent it during audit operations conducted into its affairs for the period 1 January 1997 to 31 December 2000 as a result of an audit notice of 10 July 2000. 5. On 12 June 2001, pursuant to the provisions of Article L. 16 B of the Code of Tax Procedure, the tax authorities applied to the President of the Marseilles tribunal de grande instance to authorise a search and seizure operation to be carried out in the context of the audit of Clinique Les Roches Claires, with a view to obtaining accounting, legal and corporate documents supporting certain declarations, on account of suspected fraudulent activities (price mark-ups and uninvoiced or fictitious transactions). 6. By a warrant of the same date the President authorised the tax inspectors, assisted by senior police officers, to carry out the searches and seizures required in order to discover evidence of the alleged activities at certain sites where documents or data carriers connected with the suspected fraud might be found, in particular at the applicants ’ place of business, since they had been retained to assist and represent Clinique Les Roches Claires and were therefore assumed to be in possession of documents evidencing the suspected fraud on the part of their client. 7. The judge authorised only one search, setting 20 June 2001 as the time limit for the search and 30 June 2001 as the time - limit for the submission of a report on the operations. 8. On 13 June 2001, simultaneous searches were conducted at the locations indicated in the warrant issued by the President of the Marseilles tribunal de grande instance. The operations carried out at the applicants ’ place of business by four tax inspectors took place between 7.30 a.m. and 1.10 p.m., in the presence of the first applicant, the chairman of the Marseilles Bar Association and a senior police officer. On that occasion, the first applicant was given a copy of the warrant of 12 June 2001. 9. A record of the search and seizure operations and an inventory were drawn up and signed by those present. Sixty-six documents were seized. They included handwritten notes and a document with a comment in the first applicant ’ s handwriting, in respect of which the chairman of the Bar Association expressly pointed out that these were the lawyer ’ s personal documents and were accordingly protected by the rule of absolute professional secrecy and could not be seized. The first applicant protested at the way in which the search had been carried out and made a number of observations which were logged in the record. He was given a copy of the record and the documents seized. 10. The applicants appealed on points of law within the statutory time - limit of five days. In their pleadings in support of the appeal, they raised two grounds alleging that the searches and seizures had been unlawful. They stated in particular, relying on professional secrecy and the rights of the defence, that documents sent by a client to that client ’ s lawyer and correspondence between them could not be seized where the search was not aimed at establishing proof that the lawyer in question had been involved in the offence. They also complained that the search warrant issued by the President of the tribunal de grande instance had failed to mention specifically that the presence of the chairman of the Bar Association or his or her representative was compulsory during the operations. 11. In a judgment of 11 December 2002 the Court of Cassation dismissed the applicants ’ appeal. As to the failure to refer specifically to the presence of the chairman of the Bar Association, the court stated that the search warrant did not have to determine the measures required for professional secrecy to be observed, any breaches thereof being examined in the context of the review of the lawfulness of the operations and not the review of the lawfulness of the warrant. As regards the seizure of the documents at issue, the Court of Cassation considered that the professional secrecy of lawyers did not constitute an obstacle to searches of their premises and seizure of any documents in their possession being authorised, in so far as the judge had found that the information provided by the applicant authority contained sufficient evidence for the suspicion mentioned in the warrant. B. Relevant domestic law and practice 1. The Code of Tax Procedure 12. The relevant provisions of the Code of Tax Procedure, as applicable at the material time, read as follows : Article L16 B “I. If the judicial authority, on an application by the tax authority, considers that presumptions exist that a taxpayer is avoiding the calculation or payment of taxes on revenue or profits or of value added tax by making purchases or sales without invoices, by using or issuing invoices or documents that do not correspond to genuine transactions or by knowingly omitting to make accounting entries or to cause accounting entries to be made or by knowingly making inaccurate or false entries or causing inaccurate or false entries to be made in the accounting records that are required to be kept by the General Tax Code, it may, in accordance with the conditions set out in II, authorise tax officials of at least inspector rank and holding authority from the Director-General of the Revenue to that end to seek proof of such acts by carrying out searches of all premises, including private premises, where evidence and documents relating thereto may be kept and to seize such evidence and documents. II. All searches must be authorised by an order of the liberties and detention judge of the tribunal de grande instance for the jurisdiction in which the premises to be searched are located. The judge shall verify whether there is concrete evidence that the application for authorisation which has been made to him or her is well-founded. The application must contain all the information in the possession of the authority that may serve to justify a search. The order shall include: ( i ) where appropriate, a statement that the president of the tribunal de grande instance has delegated the requisite power; (ii) the address of the premises to be searched; (iii) the name and capacity of the accredited civil servant who has sought and obtained authorisation to carry out the search. The judge shall give reasons for his or her decision by indicating the elements of fact and law on which he or she relies and which raise a presumption in the case before him or her of the existence of the fraudulent acts for which evidence is sought. If during the course of the search the accredited officials discover the existence of a safe-deposit box in a financial institution in the name of the person occupying the premises searched in which items of evidence and documents relating to the acts referred to in I are likely to be found, they may, with the permission – which may be given in any form – of the judge who made the order, immediately search the safe-deposit box. A reference to such permission shall be entered in the record referred to in IV. The search and seizure of documents shall be carried out under the authority and supervision of the judge who authorised them. To that end, he or she shall give all instructions to the officials engaged in the operations. He or she shall appoint a senior police officer to assist with the operations and to keep him or her informed of their progress. The judge may, if he or she considers it appropriate, attend the premises while the operations are under way. He or she may at any time decide to suspend or halt the search. The occupier of the premises or his or her representative shall be orally informed of the order on site when the search is carried out and shall receive a full copy of it, for which he or she shall either sign a receipt or initial the record referred to in IV. In the absence of the occupier of the premises or his or her representative, the order shall be served by registered letter with recorded delivery after the search has been performed. Service shall be deemed to have been effected at the date of receipt entered on the delivery form. If delivery of the order is not taken, it shall be served personally in accordance with the provisions of Articles 550 et seq. of the Code of Criminal Procedure. The time - limit and procedure for appealing shall be set out in the documents accompanying postal or personal service. The only remedy against the order referred to in the first sub-paragraph shall be an appeal on points of law in accordance with the rules set out in the Code of Criminal Procedure. Such appeals shall have no suspensive effect. For the purposes of an appeal on points of law, time shall start to run from the date of postal or personal service of the order. III. Searches, which may not be started before 6 a.m. or after 9 p.m., shall be conducted in the presence of the occupier of the premises or of his or her representative. If that is not possible, the senior police officer shall appoint two witnesses who shall not be from his or her department or the tax authority. The tax - authority officials referred to in I may be assisted by other tax - authority officials who have been accredited in the same conditions as the inspectors. The accredited tax officials, the occupier of the premises or his or her representative and the senior police officer are the only persons authorised to see the evidence and documents before their seizure. The senior police officer shall ensure that there is no breach of professional confidence and that the rights of the defence are complied with in accordance with the provisions of the third paragraph of Article 56 of the Code of Criminal Procedure. Article 58 of that Code shall be applicable. IV. A record stating how the operation was organised and how it proceeded and logging any findings shall be compiled forthwith by the tax - authority officials. An inventory of the evidence and documents seized shall be appended to it, where necessary. The record and the inventory shall be signed by the tax - authority officials, a senior police officer and the persons mentioned in the first sub-paragraph of III. Any refusal to sign them shall be noted in the record. Should it prove impractical to take an inventory on site, the evidence and documents seized shall be placed under seal. The occupier of the premises or his or her representative shall be informed that he or she may be present when the seals are broken in the presence of the senior police officer. The inventory shall be taken at that time. V. The originals of the record and the inventory shall be sent to the judge who issued the search warrant as soon as they have been compiled. A copy of those documents shall be provided to the occupier of the premises or his or her representative. The evidence and documents seized shall be returned to the occupier of the premises within six months of the search; however, when criminal proceedings are brought, their return must be authorised by the competent court. VI. The tax authorities may not use any information obtained against the taxpayer until the seized items and documents have been returned or reproduced and until the review measures referred to in the first and second sub-paragraphs of Article L. 47 have been implemented.” 2. The Code of Criminal Procedure 13. The relevant provisions of the Code of Criminal Procedure, as applicable at the material time, read as follows: Article 56, paragraph 3 “However, [the senior police officer] must first take all measures necessary to ensure that professional confidentiality and the rights of the defence are respected .” Article 56-1 “ A search of a lawyer ’ s chambers or home may only be made by a judge and in the presence of the chairman of the Bar Association or a person delegated by him or her. Only the judge and the chairman of the Bar Association or the person delegated by him or her are entitled to inspect documents discovered during a search with a view to their possible seizure. The chairman of the Bar Association or the person delegated by him or her may object to the seizure of a document which the judge intends to carry out if he or she considers that it would be unlawful. The document must then be placed under official seal. These steps shall be noted in an official record indicating the objections of the chairman of the Bar Association or the person delegated by him or her, which shall not be added to the case file. Where other documents have been seized during the search without any objection, the official record shall be separate from that required by Article 57. The official record and the document placed under official seal shall be transmitted to the liberties and detention judge, along with the original or a copy of the case file. Within five days of receipt of the documents, the liberties and detention judge shall give a reasoned ruling on the objection, which shall not be open to appeal. To this end, he or she shall interview the judge who carried out the search and, where necessary, the public prosecutor and also the lawyer whose chambers or home has been searched and the chairman of the Bar Association or the person delegated by him or her. He or she may open the seal in the presence of these persons. Where he or she considers that it is not necessary to seize the document, the liberties and detention judge shall order its immediate return and the destruction of the official record of the operations and, where necessary, the deletion of any reference to that document or its contents in the official case file. Otherwise, he or she shall order the inclusion of the document and the official record in the case file. His or her decision shall not prevent the parties from subsequently applying to, the trial court or the investigation division, as appropriate, for the seizure to be declared null and void. ” 3. Law no. 71-1130 of 31 December 1971 concerning the reform of certain judicial and legal professions 14. Section 66-5 of Law no. 71 -1130 of 31 December 1971 ( amended by Law no. 2004-130 of 11 February 2004 ) provides : “ In all matters, whether with regard to advice or defence, written opinions sent by a lawyer to his or her client or intended for the latter, correspondence between a client and a lawyer, between a lawyer and other lawyers, with the exception, in the latter case, of correspondence marked ‘ official ’, meeting notes and, more generally, all documents in a case file shall be covered by professional secrecy. ” 4. Case - law of the Court of Cassation 15. The Court of Cassation has held that the seizure of correspondence between a person under investigation and that person ’ s lawyer may only be ordered and pursued if the documents seized are capable of establishing proof of the lawyer ’ s participation in an offence (see in particular Court of Cassation ( Criminal Division), 12 March 1992, Bulletin criminel no. 112; 20 January 1993, Bulletin criminel no. 29; Court of Cassation (Commercial Division), 5 May 1998, Bulletin IV, no. 147; Court of Cassation (Criminal Division), 5 Oct. 1999, Bulletin criminel no. 206; 27 June 2001, Bulletin criminel no. 163). Observance of the principle of the confidentiality of exchanges between a lawyer and his or her client is not limited to seizures, but extends to other measures that might affect it ( for example, a measure such as the tapping of a lawyer ’ s private and/or personal telephone line must be preceded by a specific finding that credible evidence exists of the lawyer ’ s participation in an offence : Court of Cassation (Criminal Division), 15 January 1997, Bulletin criminel no. 14; 8 November 2000, Bulletin criminel no. 335; Court of Cassation (Criminal Division), 18 January 2006, appeal no. 05-86.447). 5. Community law ( a) Case of AM & S Europe Limited v. Commission of the European Communities (155/79), judgment of 18 May 1982 of the Court of Justice of the European Communities ( CJEC ) “ 18. Community law, which derives from not only the economic but also the legal interpenetration of the Member States, must take into account the principles and concepts common to the laws of those States concerning the observance of confidentiality, in particular, as regards certain communications between lawyer and client. That confidentiality serves the requirements, the importance of which is recognised in all of the Member States, that any person must be able, without constraint, to consult a lawyer whose profession entails the giving of independent legal advice to all those in need of it. 19. As far as the protection of written communications between lawyer and client is concerned, it is apparent from the legal systems of the Member States that, although the principle of such protection is generally recognised, its scope and the criteria for applying it vary ... 21. Apart from these differences, however, there are to be found in the national laws of the Member States common criteria inasmuch as those laws protect, in similar circumstances, the confidentiality of written communications between lawyer and client provided that, on the one hand, such communications are made for the purpose and in the interests of the client ’ s rights of defence and, on the other hand, they emanate from independent lawyers, that is to say, lawyers who are not bound to the client by a relationship of employment ... 23. As far as the first of those two conditions is concerned, in Regulation ... care is taken to ensure that the rights of the defence may be exercised to the full, and the protection of the confidentiality of written communications between lawyer and client is an essential corollary to those rights. 24. As regards the second condition, it should be stated that the requirement as to the position and status as an independent lawyer, which must be fulfilled by the legal adviser from whom the written communications which may be protected emanate, is based on a conception of the lawyer ’ s role as collaborating in the administration of justice by the courts and as being required to provide, in full independence, and in the over-riding interests of that cause, such legal assistance as the client needs. The counterpart of that protection lies in the rules of professional ethics and discipline ... Such a conception reflects the legal traditions common to the Member States and is also to be found in legal order of the Community ... ” ( b) Case of Wouters (C-309-99), judgment of 19 February 2002 of the CJEC 16. In this case the CJEC recognised the specific nature of the profession of lawyer. In his submissions presented on 10 July 2001, the Advocate -General Philippe Léger considered, in particular, as follows : “ 182. Professional secrecy forms the basis of the relationship of trust between lawyer and client. It requires the lawyer not to divulge any information imparted by the client and extends ratione temporis to the period after the lawyer has ceased to act for the client and ratione personae to third parties. Professional secrecy also constitutes an ‘ essential guarantee of the freedom of the individual and of the proper working of justice ’, so that in most Member States it is a matter of public policy. ” ( c ) Directive 91/308/ EEC on prevention of the use of the financial system for the purpose of money laundering 17. Directive 91/308/ EEC states that lawyers are obliged to inform the competent authorities of any fact which could be an indication of money laundering. The particular protection to be afforded to lawyers and the possible exceptions thereto are the subject of debate in the context of a dispute before the CJEC, in relation to Directive 91/308/EEC and the obligation on lawyers to inform and co-operate with the authorities responsible for the fight against money laundering. 18. In its judgment of 26 June 2007 ( Ordre des barreaux francophones et germanophones, Ordre français des avocats du barreau de Bruxelles, Ordre des barreaux flamands, Ordre néerlandais des avocats du barreau de Bruxelles against Conseil des ministres, Case C-305/05), the ECJ ruled that the obligations of information and cooperation with the authorities responsible for combating money laundering did not infringe Article 6 § 1 of the Convention for the following reasons : – these obligations “ apply to lawyers only insofar as they advise their client in the preparation or execution of certain transactions, essentially those of a financial nature or concerning real estate”, that is, in a context with no link to judicial proceedings; – furthermore, again in the context of these transactions, as soon as the lawyer is called upon for assistance in defending the client or in representing him before the courts, or for advice as to the manner of instituting or avoiding proceedings, that lawyer is exempt from the obligations of information and cooperation ( regardless of when the information was received). 6. Recommendation No. R (2000) 21 of the Committee of Ministers of the Council of Europe to Member States on the freedom of exercise of the profession of lawyer (adopted on 25 October 2000) 19. The relevant provisions of Recommendation No. R (2000) 21 read as follows : “ ... Desiring to promote the freedom of exercise of the profession of lawyer in order to strengthen the Rule of Law, in which lawyers take part, in particular in the role of defending individual freedoms; Conscious of the need for a fair system of administration of justice which guarantees the independence of lawyers in the discharge of their professional duties without any improper restriction, influence, inducement, pressure, threats or interference, direct or indirect, from any quarter of for any reason; ... Principle I – General principles on the freedom of exercise of the profession of lawyer 1. All necessary measures should be taken to respect, protect and promote the freedom of exercise of the profession of lawyer without discrimination and without improper interference from the authorities or the public, in particular in the light of the relevant provisions of the European Convention on Human Rights. ... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the Rule of Law. ” 7. United Nations 20. The relevant provisions of the “Basic Principles on the Role of Lawyers” (adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Havana from 27 August to 7 September 1990) state: “ 16. Governments shall ensure that lawyers (a) are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference; (b) are able to travel and to consult with their clients freely both within their own country and abroad; and (c) shall not suffer, or be threatened with, prosecution or administrative, economic or other sanctions for any action taken in accordance with recognized professional duties, standards and ethics. ... 22. Governments shall recognize and respect that all communications and consultations between lawyers and their clients within their professional relationship are confidential. ” | The applicants were a lawyer and a law firm. The case concerned a search of their offices in June 2001 by tax inspectors with a view to the discovery of evidence against a client company of the applicants’ practice which was suspected of tax evasion. The search was conducted in the presence of the first applicant, the chairman of the Marseilles Bar Association and a senior police officer, and 66 documents were seized. The applicants complained that the search and the seizures had been unlawful, and lodged an appeal on points of law, which was dismissed by the Court of Cassation. The applicants alleged in particular an infringement of their defence rights and a breach of professional confidentiality. |
53 | Applications lodged by the abducting parent | I. THE CIRCUMSTANCES OF THE CASE 15. The applicants were born in 1959 and 2003 respectively and live in Lausanne (Canton of Vaud). 16. The facts as submitted by the parties may be summarised as follows. 17. The first applicant, who refers to herself as Jewish, decided to settle in Israel in 1999. There she met an Israeli national, who is also Jewish, and they were married on 23 October 2001 in Israel. They had a son, Noam, who was born in Tel Aviv on 10 June 2003. He has Israeli and Swiss nationality. 18. According to the applicants, in the autumn of 2003 the child’s father joined the Jewish “Lubavitch” movement, which they have described as an ultra-orthodox, radical movement that is known for its zealous proselytising. 19. Marital difficulties then arose, and the first applicant, fearing that her husband would take their son to a “Chabad-Lubavitch” community abroad for religious indoctrination, applied to the Tel Aviv Family Court for a ne exeat order to prevent Noam’s removal from Israel. On 20 June 2004 the court made a ne exeat order that was to expire when the child attained his majority, that is to say on 10 June 2021, unless annulled by the court in the meantime. 20. In an interim decision of 27 June 2004, the same court granted “temporary custody” of the child to the mother and requested the Tel Aviv social services to draw up an urgent welfare report. The “guardianship” of the child was to be exercised jointly by both parents. 21. In a decision of 17 November 2004, the court, on the recommendation of a social worker, confirmed the first applicant’s custody of the child and granted a right of visitation to the father. 22. On 10 January 2005 the Israeli social services were obliged to intervene. They instructed the parents to live apart, in the interest of the child. The letter they sent to the parents read as follows: “1. We take the view that to maintain a common home and live, as you have been doing, under the same roof is not in the child’s interest – and that is an understatement. It appears to us that the environment of constant recrimination and invective created by Shai against Isabelle has caused her permanent stress that may prevent her from fulfilling her role as a mother, when she is already faced with the need to find a job in order to support herself and pay the rent. It should be noted that Shai pays neither the maintenance ordered by the court nor the rent. We felt that some of Shai’s recriminations verged on the absurd. He has decided that the child’s illness, like the glandular fever and the epileptic fit that the child has suffered, are the mother’s fault. Shai persists in asserting that Isabelle ‘is not a good mother’; he does not accept the fact that the child attends nursery school, and claims that the medical certificates are insufficient. We advise Shai to speak to the doctors who are treating the child. Although he is maintained by Isabelle, Shai demands that the food complies to a very strict degree with Jewish dietary laws, observing one dietary rule or another ... There is no doubt that living apart will resolve some of these problems. We find that Shai creates a hostile environment at home – an atmosphere of verbal aggression and threats that terrorise the mother. In the light of the foregoing, we cannot but find that the mother is exposed to mental harassment and that the maintaining of a common home is harmful to the child. 2. Under the powers conferred on us by sections 19 and 68 of the Law on legal capacity, we reiterate our warning to Shai, calling on him not to take his child with him to engage in religious proselytising on the public highway, where he encourages passers-by to put on phylacteries and collects donations. Likewise, the father is requested not to take the child with him to the synagogue for a whole day at a time. We emphasise that the provisions on access in respect of the child are intended to bring father and child together for their common activities, and not for other purposes.” 23. That same day, the first applicant filed a complaint with the police accusing her husband of assault. 24. In an injunction of 12 January 2005 the competent judge of the Tel Aviv Family Court, upon an urgent application lodged earlier that day by the first applicant, prohibited the father from entering the child’s nursery school or the first applicant’s flat, from disturbing or harassing her in any manner whatsoever, and from carrying or possessing a weapon. Restrictions were also imposed on the access right granted to the father, who was now authorised to see the child only twice a week under the supervision of the social services at a contact centre in Tel Aviv. 25. The couple’s divorce was pronounced on 10 February 2005 with no change in the attribution of guardianship. 26. As the father had defaulted on his maintenance payments to the first applicant, an arrest warrant was issued against him on 20 March 2005. 27. In a decision of 27 March 2005, a judge of the Tel Aviv Family Court dismissed an application lodged by the first applicant for the annulment of the ne exeat order prohibiting the removal of the second applicant from Israel. The judge found, in particular, that there was a serious risk that the mother would not return to Israel with the child after visiting her family abroad, in view of the fact that she had no ties in that country. 28. On 24 June 2005 the first applicant secretly left Israel for Switzerland with her son. 29. On 27 June 2005 Noam’s father contacted the Israeli Central Authority, which was unable to locate the child until 21 May 2006, when Interpol Jerusalem forwarded him a note from Interpol Berne indicating that the first applicant was in Switzerland. 30. On 22 May 2006 the Israeli Ministry of Justice transmitted to the Swiss Federal Office of Justice an application for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (the “Hague Convention”; see paragraph 57 below). In support of its application it indicated, among other things, that Interpol Berne had notified it only the day before that Noam and his mother were living in Lausanne and that the latter had applied for the renewal of her Swiss passport. 31. In a decision of 30 May 2006, delivered upon an application by the child’s father, the Tel Aviv Family Court observed that the child was habitually resident in Tel Aviv and that, as of 24 June 2005, the date of the applicants’ departure, the parents had been joint guardians of their son, with the mother having temporary custody and the father a right of access. The court held that the child’s removal from Israel without the father’s consent had been wrongful within the meaning of Article 3 of the Hague Convention. 32. On 8 June 2006 the child’s father lodged an application with the Lausanne District Justice of the Peace seeking an order for his son’s return to Israel. He requested in particular, as an extremely urgent measure, that the Lausanne Passport Office be ordered to retain the applicants’ Swiss passports. 33. On 12 June 2006 the Justice of the Peace made an order allowing the application by Noam’s father for an extremely urgent measure. 34. Following a new application for an extremely urgent measure, faxed by the child’s father on 27 June 2006, the Justice of the Peace, in a provisional-measures order made that same day, ordered the first applicant to deposit her passport and that of Noam immediately with the court registry of the Justice of the Peace, on pain of criminal sanctions for refusal to comply with the decision of an authority. 35. The first applicant, assisted by counsel, and the legal representative of the father, whose obligation to appear in person had been waived, made representations to the Justice of the Peace on 18 July 2006. 36. In a decision of 29 August 2006, after a hearing, the father’s application was dismissed by the Lausanne District Justice of the Peace. The court took the view that, whilst the child’s removal had been wrongful within the meaning of Article 3 of the Hague Convention, it had to apply Article 13, sub-paragraph (b), of that Convention, as there was a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation. 37. On 25 September 2006 the father appealed against that decision before the Guardianship Division ( chambre des tutelles ) of the Vaud Cantonal Court, which ordered an expert’s report and for that purpose appointed Dr B., a paediatrician and child psychiatrist. In his report, delivered on 16 April 2007, he stated that the child’s return to Israel with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return, in particular the conditions awaiting the mother and their potential repercussions for the child; that the return of the child without his mother would expose him to a risk of major psychological harm; and that the maintaining of the status quo would also represent for the child a risk of major psychological harm in the long term. 38. On 30 November 2006 the competent court in Tel Aviv cancelled an indictment for domestic violence that the second wife of Noam’s father had initiated, as she had left the country. 39. In a letter of 12 March 2007, in connection with the proceedings to secure the child’s return, the Israeli Central Authority made the following observations to its Swiss counterpart: “We acknowledge receipt of your letter dated 7 February 2007. We wish to respond to the questions raised in that letter as follows: Mr Shuruk states that in the event that the mother refuses to return to Israel, he will take care of the child. He currently lives in an apartment with a roommate, however if the child is returned to Israel, he states that he will immediately secure an apartment to live in with the child. He is currently working and studying at an institution for religious learning, from 9 a.m. to 3 p.m. The child would be in day care/nursery school during those hours. Mr Shuruk points out that prior to the child’s abduction to Switzerland, he was in day care as the mother worked. Mr Shuruk advises that his extended family would provide a back-up system for him in the event that he would need assistance from time to time. The Appeal Court in Switzerland has raised a concern as to how Mr Shuruk can care for the child when his right of access has been restricted. As we stated in our letter to your office dated 28 September 2006, it must be remembered that according to the report of the social worker in Israel, the father and child had a wonderful relationship. There were plans to expand the visitation, to include overnight visits, however these plans were interrupted as a result of the mother’s abduction of the child. If the mother were to refuse to return to Israel with the child, she would in effect be agreeing to the father having de facto custody, and Mr Shuruk could apply to the Israeli court to grant an order reflecting the new reality. You further asked what steps could be taken to protect the mother should she return, given her allegations of violence on the part of Mr Shuruk. Mr Shuruk denies all such allegations. Furthermore, we are attaching a copy of the decision of the Tel Aviv Magistrate’s Court dated 30 November 2006, together with a translation into English. This decision concerned an indictment filed against Mr Shuruk for allegations of assault by his second wife. As you can see, the complainant apparently left Israel and could not be located, therefore the court cancelled the indictment against Mr Shuruk. In any event, we wish to draw your attention to the law in Israel that provides protection in cases of allegations of family violence; that law is the Prevention of Family Violence Law 1991. We are attaching a translation of that law into English, and an unofficial translation into French. Section 2 provides for protection orders that can be made. Therefore, if the mother has any concerns for her safety, she can apply to the court in Israel and request any necessary protection. Her allegations should not constitute a basis for the Swiss court to refuse to return the child to Israel. You informed us that the court ordered a psychological evaluation of the child. We must express our concern in this respect. Such evaluation was not ordered by the lower court, and we wish to inquire as to why it has been ordered at this late stage. It must be remembered that the child was abducted by the mother in June 2005. The child has not seen his father in almost two years. During this period he has been subject to the sole influence of the mother. We therefore question what can be gained by a psychological evaluation of the child. It must be remembered that this is a Hague Convention proceeding, and not a custody case. It seems that the mother is trying to prove that the child will be psychologically damaged by being separated from her if he is returned to Israel. However this can be avoided if the mother will act in the child’s best interests and return with him. As we stated in our letter of 28 September 2006, the mother does not appear to have any justifiable reason under the Hague Convention to prevent her return ...” 40. In a letter of 30 April 2007 to the lawyer acting for Noam’s father, the Israeli Central Authority made the following observations on the question whether the first applicant would be prosecuted or imprisoned if she returned to Israel: “... You have requested that we inform you as to the legal consequences that would face the mother, Isabelle Neulinger, should she return to Israel with the child, as a result of the act of abduction of the child. In terms of criminal consequences for the act of abduction, abduction is an offence under Israel’s Penal Law 1977 and carries a possible penalty of imprisonment. However, according to the guidelines of the State Attorney of Israel, upon receipt of a criminal complaint of parental abduction, the police are to forward the matter to the Central Authority under the Hague Convention for guidelines as to how to proceed in the matter. The State Attorney’s guidelines provide that criminal proceedings should be commenced only in very exceptional circumstances. In Ms Neulinger’s case, should she comply with an order to return the child to Israel, not disappear with the child upon her arrival to Israel, cooperate with the Israeli authorities and comply with the existing court order for supervised visitation by Mr Shuruk (pending any further decision), the Central Authority for Israel would positively consider instructing the Israel Police to close the criminal file for lack of public interest, provided that Ms Neulinger not commit further acts of abjection with respect to the child. In terms of civil consequences, we can inform you that the sole consideration in both the Israeli civil courts and Rabbinical courts, when deciding matters such as custody and access, is the best interests of the child ...” 41. In a judgment of 22 May 2007, the Guardianship Division of the Vaud Cantonal Court dismissed the father’s appeal. Having carried out an additional investigation, and taking into account the expert’s report by Dr B. of 16 April 2007, it took the view that the child’s return carried a grave risk of psychological harm, whether or not he was accompanied by his mother, and would also place him in an intolerable situation. It therefore considered that the conditions of Article 13, sub-paragraph (b), of the Hague Convention were met. Finding, however, that the child could not be deprived of all relations with his father, it prescribed measures with a view to rebuilding the personal relationship between them. Its judgment read as follows: “4. (d) ... In response to the questions put to him, expert B. ... states in his conclusions that Noam’s return to Israel with his mother would expose him to psychological harm, the intensity of which cannot be assessed without knowledge of the conditions of such return, in particular those awaiting his mother and the repercussions which they might have on the child; as regards the child’s return to Israel without his mother, [the expert] is of the opinion that it would expose him to major psychological harm, as described in detail in the report. In the ‘discussion’ part of his report the expert emphasises that Noam’s situation seems at present to be completely blocked. On the one hand, given his young age and his complete lack of recollection of his first years in Israel, including of his father, any visit to that country without his mother, even a brief visit, and even if the legal situation allowed it, would be psychologically highly traumatic, involving extreme separation-related anxiety and a major risk of severe depression. On the other hand, the possibility of the mother’s return to Israel with Noam, even for a short period, is totally out of the question for the mother. In answer to the question whether Noam’s return to Israel might place the child in an intolerable situation, the expert replied that it was ‘clearly’ the conditions of the child’s possible return to Israel that would or would not render the situation intolerable. He observed that, likewise, it was the conditions of his continuing residence in Switzerland that would or would not render his situation there intolerable and that the maintaining of the status quo represented a long-term major psychological risk for the child, with the result that, if there were no understanding between his parents, an agreement would urgently be required between the child protection services of the States of the parents’ residence in order to make up for their failure to act. In accordance with Article 13, third paragraph, of the Hague Convention, this court also requested the Israeli Central Authority to provide information about the child’s social background, by answering the following questions: ‘in the event that, as she has stated, the mother does not return to Israel, who will take care of the child and where will he stay? As the father does not appear to be in gainful employment, who will provide for the child’s upkeep? As the right of access has been restricted by judicial decisions, what measures will be taken to ensure that the exercise of the right of access does not harm the child’s physical and psychological welfare?’ In its letter of 12 March 2007 the Israeli Central Authority did not really answer the questions put to it, so it is impossible to be satisfied about the interests of the child. The Central Authority merely mentioned the appellant’s intentions concerning his son if his son should return to Israel without his mother, in the following terms: ‘[I]n the event that Noam’s mother refuses to return to Israel, the father will take care of the child. He currently lives in an apartment with a roommate; however if the child is returned to Israel, he states that he will immediately secure an apartment to live in with the child. He is currently working and studying at an institution for religious learning, from 9 a.m. to 3 p.m. The child would be in day care/nursery school during those hours. Mr Shuruk points out that prior to the child’s abduction to Switzerland, he was in day care as the mother worked. Mr Shuruk advises that his extended family would provide a back-up system for him in the event that he needs assistance from time to time.’ As to the issue of how Shai Shuruk would be able to take care of the child, given that he has only a restricted right of access, the Israeli Central Authority emphasised: ‘As we stated in our findings of 28 September 2006, according to the report of the social worker in Israel, the father and child had a wonderful relationship. There were plans to expand the visitation, to include overnight visits; however these plans were interrupted as a result of the mother’s abduction of the child.’ The Israeli Central Authority concluded that ‘[i]f the mother were to refuse to return to Israel with the child, she would in effect be agreeing to the father having de facto custody, and Mr Shuruk could apply to the Israeli court to grant an order reflecting the new reality’. It should be noted that neither the conclusions of the child psychiatrist’s report nor the information provided by the Israeli Central Authority are conducive to Noam’s return to Israel. Not only would such a return entail a grave risk of exposure to psychological harm, whether or not he is accompanied by his mother, it would also place him again in an intolerable situation. Firstly, the psychiatric expert observes that if the child returns to Israel with his mother, he will risk being exposed to psychological harm whose intensity cannot be assessed without knowledge of the conditions of that return. In that connection, the Guardianship Division is of the opinion that, since the child’s removal to Israel, even if his mother accompanies him, may expose the child to psychological harm and since, unlike the ‘classic scenario’ envisaged by the Hague Convention, the respondent has custody of her son, she cannot reasonably be required to return to Israel. An additional factor is that the mother’s return to Israel would also undermine the child’s economic security, since the mother would be required to find a job there, in order to provide not only for her own needs but also for those of her son. The fact that the appellant has never provided for his child’s upkeep and that he is known to earn only 300 [Swiss] francs per month cannot be disregarded when the interests of the child are taken into consideration in that context. Lastly, it must be considered that the requirement of the mother’s return is disproportionate to the reason for the return: the object of the Hague Convention is to put the child back into the legal situation in which he was before he was abducted. However, the present return is requested in order to allow the appellant to exercise his right to a personal relationship, a right which is shown to have been exercised before the child’s departure under the supervision of the social services in the form of two weekly meetings of two hours each. To require a mother to uproot herself in order to permit the exercise of such a restricted right of access, when the child’s return certainly entails a risk of grave psychological harm, in view of the conditions of insecurity in which the return will take place, constitutes an intolerable situation for the child within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. As to Noam’s return to Israel without his mother, the expert is of the opinion that it would be psychologically highly traumatic, involving extreme separation anxiety and a major risk of severe depression, which can be explained by his young age and his total lack of recollection of his first years in Israel, including of his father. That element is sufficient for a finding that the condition laid down in Article 13, sub-paragraph (b), is satisfied. In addition, the information provided by the Israeli Central Authority about the arrangements envisaged in the event that the child returns without his mother are, at the very least, a matter for concern: although the appellant has, legally speaking, only a very restricted right of access, under supervision, it is envisaged, according to the information provided by the Central Authority, that the appellant will take his son home (without any guarantee that he will by then have an individual flat) and will thus have de facto custody. In that connection, the Israeli Central Authority claims that by refusing to return to Israel with her son, the respondent is implicitly acquiescing in that change of situation – a new reality of which the appellant will then seek validation by the Israeli judicial authorities. That does not correspond to the aim pursued by the Hague Convention, which provides for the immediate return of the unlawfully removed child in order to put it back in the status quo ante. Such a return cannot therefore be ordered on the basis of the Hague Convention, and it is emphasised that there is no doubt that Noam’s return to Israel in such circumstances would definitely expose him to a risk of major psychological harm, owing not only to the fact that he would be abruptly separated from his mother, when she has been his principal parental reference since he was born and has been the only one to provide for his upkeep, but also to the fact that he will be just as abruptly faced with a father of whose existence he has just learnt. In the light of the foregoing, the appeal on this point must be dismissed. ... 5. ... In the present case, it is apparent from the file that Noam Shuruk has lived with his mother, who has custody of him, for at least one year in Lausanne. Thus, the Justice of the Peace of the District of Lausanne had jurisdiction, ratione loci and ratione materiae, to take the disputed protective measure. As to the merits, it is sufficient to state that, since the child has no recollection of his father, owing to the process of physiological amnesia attributable to his very young age, there are valid grounds for avoiding an abrupt reunion, as the welfare of the child requires that the resumption of a personal relationship with his father should take place calmly and gradually, after he has been properly prepared for that new situation, as may be seen from the expert’s convincing submissions on that point. The ground of appeal is therefore ill-founded and must be rejected ...” 42. The father lodged a civil appeal with the Federal Court seeking the quashing of the Cantonal Court’s judgment and the return of the child to Israel. He alleged that the court had misapplied Article 13, sub-paragraph (b), of the Hague Convention, principally, and Article 3 of the United Nations Convention on the Rights of the Child, secondarily. 43. In a decision of 27 June 2007, the President of the appropriate division of the Federal Court granted the father’s request for immediate suspension of the judgment. 44. In a judgment of 16 August 2007, served on the first applicant’s lawyer on 21 September 2007, the Federal Court allowed the father’s appeal. The relevant passages of its judgment read as follows: “3. The object of the Hague Convention on the Civil Aspects of International Child Abduction is to secure the prompt return of children wrongfully removed to or retained in any Contracting State (Article 1, sub-paragraph (a)). The removal or the retention of a child is to be considered wrongful where it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention (Article 3, sub-paragraph (a)). ‘Rights of custody’ include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence (Article 5 (a)). In the present case it is not in dispute that the child’s removal to Switzerland was wrongful, since the father retained, jointly with the respondent, the right of ‘guardianship’, which under Israeli law includes the right to decide on the child’s residence. Moreover, since the application for return was presented within a period of one year after the removal, the respondent cannot deny either that, in principle, pursuant to Article 12 of the Hague Convention, the child’s prompt return should be ordered. The only matter in dispute is therefore the question whether an exception to that return may be applied under Article 13, sub-paragraph (b), of the Hague Convention. 4. According to the appellant, by refusing to order the child’s return to Israel, the Cantonal Court misapplied Article 13, sub-paragraph (b), of the Hague Convention. 4.1 Under Article 13, sub-paragraph (b), of the Hague Convention, in respect of which the Federal Court is entitled to examine matters of compliance freely (section 95(b) of the Federal Court Act), the judicial authority of the requested State is not bound to order the child’s return when the person opposing that return establishes that there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The exceptions to return provided for under Article 13 of the Hague Convention must be interpreted restrictively; the parent who has abducted the child cannot take advantage of his or her unlawful conduct (judgment 5P.71/2003 of 27 March 2003, recital 2.2, in FamPra.ch 2003, p. 718). Only grave risks must be taken into consideration, excluding any grounds relating to the parents’ child-rearing capacities, as the purpose of the Hague Convention is not to attribute parental authority (Federal Court judgment 131 III 334, recital 5.3; 123 II 419, recital 2b, p. 425). An exception to return under Article 13, sub-paragraph (b), of the Hague Convention, is therefore not open to consideration unless the child’s intellectual, physical, moral or social development is under serious threat (judgment 5P.65/2002 of 11 April 2002, recital 4c/bb, in FamPra.ch 2002, p. 620 and the reference cited therein). The burden of proof lies with the person who opposes the child’s return (ibid., recital 4b, in FamPra.ch 2002, p. 620 and the reference cited therein). 4.2 The Cantonal Court observed that the case concerned a very young child in the custody of his mother, who had always provided for him. The father, for his part, lived in a religious community where he was fed, and from his activity as a sports and art teacher he had a monthly income of only 300 [Swiss] francs. The custody of the child had been withdrawn from him on account of the atmosphere of fear that he had created at the family home. For the same reason, the Israeli courts ordered him to live separately and prohibited him from approaching the mother’s flat. Before the child’s removal to Switzerland he had only had a restricted right of visitation, limited to two hours twice a week, under the supervision of the Israeli social services. Concerning the conditions of a possible return of the child without his mother, according to the information provided by the Israeli Ministry of Justice on 12 March 2007, the father, who now shares a flat with one other tenant and still works in an institution for religious education, would be prepared to take care of the child. Taking into account the laconic and not very reassuring nature of this information, together with the expert’s report by Dr ..., a psychiatrist, the Cantonal Court considered that a return to Israel involved a risk of psychological harm for the child and might place him in an intolerable situation, whether or not he was accompanied by his mother. The court added that, in view of the father’s low income, the return to Israel of the respondent would also undermine the child’s economic stability and the mother would have to find a job in order to provide for them both. In his appeal, the appellant does not criticise the Cantonal Court’s finding that there was a grave risk that the child would be exposed to psychological harm if he returned to Israel without his mother. He is of the opinion, however, that such a risk would not exist if the child’s mother accompanied him to Israel, as could be reasonably expected of her. As regards that latter hypothesis, the judgment of the Cantonal Court fails to provide any evidence of such a grave risk of harm, or of any intolerable situation for the child. The expert psychiatrist failed, in particular, to address that question, simply explaining that the risk could not be assessed without ascertaining the conditions of a possible return. As to the appellant’s aggressive behaviour towards the respondent, it does not appear from the Cantonal Court’s judgment that the child would be threatened directly or indirectly as a result of witnessing such violence against his mother. She stated that the father had complied with the arrangements for his right of visitation and that the visits had gone well. The social worker appointed to supervise the right of visitation had described as ‘wonderful’ the father-son relationship as established just before the child’s abduction by his mother. She has not claimed that the appellant breached the judicial instructions which required him not to approach her flat or to disturb and/or harass her. As to the considerations relating to the father’s low income and his ties with the ‘Lubavitch’ religious community, as they stand they do not indicate a grave risk that the child would be exposed to harm within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. Whilst such considerations may help to determine which of the two parents offers the best child-rearing capacities for the purpose of deciding on the attribution of the right of custody – a matter that is decided by the judicial authorities of the place of habitual residence (Article 16 of the Hague Convention) – they are not pertinent, however, for a decision about the return of a child after a wrongful abduction (see recital 4.1 above). As to the mother’s threat not to return to Israel, the judgment of the Cantonal Court did not deal at all with the reasons for her refusal, whereas it should have established the existence of objective circumstances justifying that attitude. The Cantonal Court judges quoted the expert psychiatrist who had referred to the ‘judicial risks’ that would be entailed in the event of a return to Israel, without any indication as to whether the respondent actually faced a prison sentence as a result of the abduction. Supposing that such a risk were proven, she could not be expected to return to Israel with the child – and that would accordingly rule out the return of [the child] in view of the major psychological harm that would be caused to him by the separation from his mother. She made no comment on that question in her reply to the Federal Court; in particular, she has not claimed that immediate imprisonment, or even any criminal sanction at all, would be imposed on her. Neither has she argued that in the event of her return to Israel it would be impossible or very difficult for her to integrate, or, in particular, to find a new job. Consequently, it cannot be said that the mother’s return, and therefore that of the child, would be unbearable for economic reasons either. Therefore, as the respondent has failed to establish the existence of reasons that would objectively justify a refusal on her part to return to Israel, it must be accepted that she could reasonably be expected to return to that State of origin accompanied by the child. In these circumstances, it is of no import that the information provided by the Israeli Central Authority (see recital 4.2 above) on which the Cantonal Court based, in particular, its justification of the exception to the child’s return as provided for by Article 13, sub-paragraph (b), of the Hague Convention, was deemed not very reassuring, because that information was based only on the hypothesis of the child’s return without his mother. Accordingly, the Cantonal Court judges breached Article 13, sub-paragraph (b), of the Hague Convention in finding that they were entitled to apply an exception to the child’s return to the State of his habitual residence. The appeal must therefore be allowed and the judgment of the court below quashed, without it being necessary to examine the complaint concerning a violation of Article 3 of the Convention on the Rights of the Child. It is incumbent on the respondent to secure the return of the child ... to Israel by the end of September 2007. ... The Federal Court therefore finds as follows: 1. The appeal is allowed and the judgment of the court below is quashed. 2. The respondent is ordered to secure the return of the child ... to Israel by the end of September 2007. ...” 45. On 20 August 2007 the child’s father, through counsel, lodged an application with the Lausanne District Justice of the Peace, who was responsible for the enforcement of the return decision, seeking the appointment of an ad hoc administrator for the child who would be entrusted with the organisation of his departure. On 1 October 2007 he withdrew that application after the Court had decided, on 27 September 2007, to indicate interim measures to the Government. 46. Subsequently, the applicants transmitted to the Court a medical certificate issued on 23 February 2009 by Dr M.-A., a paediatrician in Lausanne, which reads as follows: “I, the undersigned, certify that I have seen the child Noam Shuruk, born on 10 June 2003, on a number of occasions since 7 October 2005. On each occasion Noam has been accompanied by his mother, with whom he has a very good relationship. His behaviour is appropriate and his level of psychomotor development and language are above average. He does not appear to suffer from any psychological trauma or from any emotional or educational deficiencies. He is a confident boy, capable of forming good relationships, in particular with adults. He is in good physical health, with little trace of intercurrent infections. An abrupt return to Israel without his mother would constitute a significant trauma and a serious psychological disturbance for this child.” 47. In a provisional-measures order of 29 June 2009 the President of the Lausanne District Court, at the request of the first applicant, decided that Noam should live at his mother’s address in Lausanne, suspended the father’s right of access in respect of his son and granted parental authority to the mother, so as to allow her to renew the child’s identity papers. The decision was based on the following grounds in particular: “[I]t is noted that the respondent was summoned to appear by court order served at his last known address in Israel. The letter was returned marked ‘gone away’, which can be translated as ‘ parti sans laisser d’adresse ’ (gone without leaving a forwarding address). ... It appears that the mother has custody of the child while parental authority is still held jointly. The father was apparently required to ‘exercise a right of visitation’ under the supervision of the social services ... In the context of the proceedings, the respondent never appeared at the hearings but was represented by counsel, who is apparently no longer acting for his client ... According to case-law, the wrongful removal of a minor does not in itself preclude the establishment of a new habitual residence for the child in the country to which it has been taken (see Federal Court judgment 125 III 301, Journal des Tribunaux 1999 I 500). In the present case, Noam has been living in Switzerland continuously since June 2005. He attends school there. He has family ties there on his mother’s side. He receives medical attention there. He is also a national of Switzerland, of which he speaks the language, in this case French. Interim measures in favour of the applicant were decided by the European Court of Human Rights, which requested the Swiss Government not to return Noam to Israel in spite of the Federal Court’s decision. Despite his legal battle, the respondent has never sought to see his child, and his place of residence is unknown. He appears to have lost interest in the present case. Consequently, the child now has a stable relationship only with his mother. It is therefore appropriate to allow her application and to decide provisionally that Noam should reside in Lausanne, Switzerland, at the place of his habitual residence, with his mother. Article 273 § 1 of the Civil Code provides that the father or mother not having parental authority or custody and the minor are reciprocally entitled to maintain such personal relations as may be appropriate in the circumstances. The right to personal relations is intended to preserve the bond between parents and children ... The maintaining and development of this bond is obviously beneficial to the child. Personal relations must accordingly be fostered, unless the child’s welfare is endangered. The scope of personal relations and the manner in which they are carried on should be appropriate to the situation, in other words taking fair account of the particular circumstances of the case. The child’s welfare is the most important assessment criterion (see Federal Court judgment 127 III 295, с 4a). The entitled person’s situation and interests should also be taken into consideration: his or her relationship with the child, personality, place of abode, free time and environment. Special conditions for the exercise of access rights may be imposed ... The applicant has requested the withdrawal of the respondent’s access right in respect of their son Noam. In the circumstances of the case, the respondent’s access right was already limited by decisions given by the Israeli authorities before the child’s departure for Switzerland. The child has not seen his father since 2005. They apparently have no common language. In any event, the resumption of access rights, if requested by the respondent, could only be gradual. The respondent’s place of residence is currently unknown. In the circumstances it appears appropriate to order the provisional suspension of the respondent’s access rights in respect of his son Noam. The applicant requests that ‘parental authority in respect of Noam, born on 10 June 2003, be exclusively and provisionally granted to his mother Isabelle Neulinger in Lausanne for the purposes of renewing his identity papers’. The applicant has explained that her son, who has dual Israeli and Swiss nationality, currently has no identity documents. He had a Swiss passport until recently. However, when it expired the administrative authorities refused to issue him with a new one without the father’s consent, as the parties had joint parental authority in respect of the child. The respondent’s place of abode is currently unknown. The applicant is thus unable to ask him for such consent. The child lives in Switzerland with her, and she has custody of him. The present case, on the merits, admittedly concerns a change in the attribution of parental authority, since the applicant requests that by virtue of Swiss law it be exclusively granted to her. It may appear that the provisional measure requested, if granted, settles the case on the merits. However, the requested measure is far more limited in scope since it is only to ensure the possibility of obtaining identity papers for the applicant’s child. The child is a Swiss national resident in Switzerland. It is therefore necessary for him, like any other citizen, to obtain identity papers. The applicant’s request is therefore granted. ...” It does not appear, from the information currently before the Court, that either party to the dispute has appealed against that decision. | The first applicant, a Swiss national, settled in Israel, where she got married and the couple had a son. When she feared that the child (the second applicant) would be taken by his father to an ultra-orthodox community abroad, known for its zealous proselytising, the Tel Aviv Family Court imposed a ban on the child’s removal from Israel until he attained his majority. The first applicant was awarded temporary custody, and parental authority was to be exercised by both parents jointly. The father’s access rights were subsequently restricted on account of his threatening behaviour. The parents divorced and the first applicant secretly left Israel for Switzerland with her son. At last instance, the Swiss Federal Court ordered the first applicant to return the child to Israel. |
829 | Following annulment of simulated marriage | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1964 in Egypt and currently lives in Hamrun, Malta. A. Background to the case 7. The applicant had a Maltese tourist visa, which had been issued in 1991 and had been valid for three months. Having overstayed this visa, he remained in Malta illegally. 8. In 1993, when the applicant was 29 years of age and still living in Malta illegally, he met MP, a Maltese citizen, who at the time was 17 years of age. Three months later, on 13 October 1993, they married in a civil ceremony. On 26 February 1994 they also married in accordance with the Catholic rite. 9. On 18 November 1993 the applicant enquired about his “exempt person status” (see paragraph 34 below) and on 23 November 1993 started the process to obtain Maltese citizenship on the basis of his marriage to a Maltese national. 10. The applicant’s exempt person status was confirmed on 2 March 1994. On 19 April 1994, following the processing of his application and consequent to the marriage, he was registered as a Maltese citizen. On 12 September 1994, he therefore lodged an application to renounce his Egyptian nationality (a copy of the relevant application form has not been submitted to the Court). It transpires from a letter issued by the Consul of the embassy of the Arab Republic of Egypt in Malta that on 29 September 1994 the applicant’s request was approved and his Egyptian passport withdrawn. At the relevant time, dual nationality was not possible under either Egyptian or Maltese law. 11. According to the Government, in 1994 the applicant and MP had various marital problems, which led the applicant to leave the matrimonial home on two occasions. The applicant had behaved aggressively, and in particular on 5 June 1994 he had physically assaulted his pregnant wife, causing her a permanent disability. MP left the matrimonial home thereafter. 12. The applicant was charged, remanded in custody, and eventually tried and found guilty in respect of the act of assault. He was given a suspended sentence. 13. In the meantime, on 13 December 1994 a child, LR, was born of the marriage. LR is a Maltese citizen. The various family disputes continued between the couple. 14. On 8 February 1995 MP instituted court proceedings to annul the marriage. Following adversarial proceedings where both parties were represented by a lawyer, the applicant’s marriage was annulled by a judgment of 19 January 1998. The court delivering the judgment was satisfied (to the degree necessary in civil proceedings, namely on a balance of probabilities) that the applicant’s only reason for marrying had been to remain in Malta and acquire citizenship; thus he was positively excluding marriage itself, and there had been a simulation of marriage. Since no appeal was lodged against the judgment, it became final. 15. The applicant did not inform the authorities of the judgment concerning the annulment of his marriage and he remained resident in Malta and retained his Maltese citizenship. 16. On 30 June 2003 the applicant married VA, a Russian citizen, four months after their first encounter. The applicant enquired about the exempt person status of his Russian wife and was asked to produce a copy of the judgment of annulment of his first marriage. On 4 July 2003 the applicant produced a copy of the judgment and it was only at this point that the authorities became aware of the reason for the annulment of his first marriage. 17. Following an application to that effect, on 27 September 2004 VA was granted exempt person status and thus had full freedom of movement (see “Relevant domestic and international law and practice” below). According to the Government, although this was contested by the applicant, attention was drawn to the fact that the benefit of such status would cease if the applicant lost his citizenship. Two sons were born of this marriage, VR and VL, in 2004 and 2005 respectively. They are both Maltese citizens. 18. On 8 May 2006 the applicant was informed that an order was to be made to deprive him of his Maltese citizenship (under Article 14 § 1 of the Maltese Citizenship Act – “the Citizenship Act”; see “Relevant domestic and international law and practice” below), which, according to the judgment of 19 January 1998, appeared to have been obtained by fraud. He was informed of his right to an inquiry. 19. The applicant challenged that decision, claiming that it was not true that he had obtained his marriage by fraud and stressing that he had three Maltese children. 20. In consequence, proceedings were instituted to investigate the applicant’s situation and if necessary divest him of his Maltese citizenship. A committee was set up for this purpose in accordance with Article 14 § 4 of the Citizenship Act. A number of hearings were held before the committee where the applicant was assisted by a lawyer. He was allowed to make oral and written submissions and submit evidence, including witness testimony. It appears from the documents available that the applicant contested the basis of the annulment decision and claimed that he had not been aware that he could have appealed against it. He also contested the findings of a court of criminal jurisdiction that had found him guilty of injuring his wife and causing her a permanent disability. 21. The applicant’s ex-wife and an official from the Department of Citizenship and Expatriate Affairs, as well as a priest, also gave testimony. 22. The committee’s final recommendation to the Minister of Justice and Internal Affairs was not made available to the applicant. Requests by the applicant’s lawyer for a copy of the records of those proceedings remained unsatisfied. 23. On 31 July 2007 the Minister ordered that the applicant be deprived of his citizenship with immediate effect, in accordance with Article 14 § 1 of the Citizenship Act. 24. By a letter of 2 August 2007 from the Director of the Department of Citizenship and Expatriate Affairs, the applicant was informed that the Minister of Justice and Internal Affairs had concluded that the applicant had obtained citizenship by fraudulent means and that therefore on 31 July 2007, in accordance with Article 14 § 1 of the Citizenship Act, the Minister had ordered that he be immediately divested of his citizenship. He was required to return his certificate of registration as a Maltese citizen and his passport. B. Constitutional redress proceedings 25. The applicant instituted constitutional redress proceedings, complaining under Articles 6, 8 and 14 of the Convention. He claimed that he had not had a fair trial and appropriate access to a court for the determination on his right to citizenship. Moreover, the revocation of his citizenship had not been in accordance with the law. The prerequisites for such action had not existed, as his first marriage had not been one of convenience. 26. By a judgment of 12 July 2011 the Civil Court (First Hall) in its constitutional jurisdiction rejected the applicant’s complaint under Article 6, finding that the committee set up for that purpose had not been a tribunal, but solely an investigative body capable of giving recommendations but not making final decisions. The court, however, found that the applicant’s Article 8 rights would be breached if, as a result of his being divested of his citizenship, he became an alien. His de jure family (in respect of the second marriage) would suffer irremediable harm if, as a father (of the two Maltese children of that marriage), he were required to move to another country. Thus, the revocation of citizenship in the present case was in breach of Article 8. Consequently, the court annulled the order of 31 July 2007 and considered that it was not necessary to rule on any further complaints. 27. On appeal, by a judgment of 25 May 2012 the Constitutional Court overturned the first-instance judgment in part. It rejected the Article 6 complaint on the basis that the provision was not applicable in the absence of a civil right. In that connection, it rejected the applicant’s contention that the revocation of citizenship affected his right to a family life and therefore was civil in nature, as citizenship was a matter of public law and fell under the prerogatives of the State. It also reversed the part of the judgment in respect of Article 8, commenting that it had not been established that the applicant had a family life in Malta, and, even if this were so, the revocation of his citizenship would not necessarily result in his having to leave Malta. Indeed, it had not transpired that the applicant would be denied the right to reside in Malta or that he had applied to reside in Malta and been refused, nor had a removal order been issued. C. Other developments 28. Following the lodging of the application with the Court, on 16 November 2012 the applicant’s lawyer wrote to the relevant authorities informing them that the case was pending before the Court and that therefore no action should be taken on the basis of the order of 31 July 2007. No feedback, apart from an acknowledgment of receipt, was received concerning that letter. However, although the order to deprive the applicant of his citizenship with immediate effect remains in force, no action has been taken to date in pursuit of the order and no removal order has been issued. 29. Although the applicant considers that the implementation of the order is only a matter of time, he is currently still residing and carrying out his business in Malta. He has a trading licence, which is renewed periodically. He continued using a Maltese passport to travel until 2014, when it expired, as he had failed to return it to the authorities despite their request. 30. The applicant does not appear to have any contact with his first son, but claims to be in a family environment with his second wife and their children. Following the revocation of his citizenship, the applicant’s second wife lost her exempt person status and the attached rights to freedom of movement. | The applicant, originally an Egyptian citizen, acquired Maltese citizenship following his marriage to a Maltese national. It was revoked by the Minister of Justice and Internal Affairs following a decision by the relevant domestic court to annul the marriage on the ground that the applicant’s only reason to marry had been to remain in Malta and acquire Maltese citizenship. The applicant complained about the decision to deprive him of his Maltese citizenship, asserting among other things that he was now stateless since he had had to renounce his Egyptian citizenship in order to become a citizen of Malta and was currently at risk of removal. |
223 | Scope | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1956 and lives in Vilnius. He is currently a member of the European Parliament. 10. On 5 January 2003 the applicant was elected President of the Republic of Lithuania. He took office on 26 February 2003, following his inauguration. On that occasion, in accordance with Article 82 of the Constitution, he took an oath to be loyal to the Republic of Lithuania and the Constitution, to fulfil the duties of his office conscientiously, and to be equally just to all. 11. On 11 April 2003 the applicant issued Decree no. 40, countersigned by the Minister of the Interior, granting Lithuanian citizenship “by way of exception” ( išimties tvarka ) to a Russian businessman, J. B. , who had been awarded the Medal of Darius and Girėnas in 2001 by the applicant's predecessor, Valdas Adamkus, for services to Lithuania ( he was subsequently divested of the medal following the events outlined below ). A. Proceedings concerning the lawfulness of Presidential Decree no. 40 12. On 6 November 2003 the Seimas (the Lithuanian Parliament) requested the Constitutional Court to determine whether Presidential Decree no. 40 was in compliance with the Constitution and the Citizenship Act. The Seimas submitted that the procedure of granting citizenship by way of exception appeared to have been applied inappropriately in this case. In particular, it asserted that J. B. had no special merit warranting his exceptional treatment and that the applicant had in fact granted him citizenship as a reward for his substantial assistance by financial and other means to the applicant's election campaign. 13. On 10 November 2003 the Constitutional Court accepted the request for consideration as case no. 40/03. On 10 December 2003 it held a public hearing and examined witnesses. 14. On 12 December 2003 an article was published in a Lithuanian daily newspaper, Respublika, reporting that the President of the Constitutional Court had been seen in a coffee bar with the Deputy Speaker of the Seimas, who had been closely involved in the inquiry into the applicant's activities. The newspaper implied that during this informal meeting the two officials had discussed the proceedings taking place in the Constitutional Court, thus casting a shadow of suspicion over that court's objectivity. The two men had subsequently said that they often met professionally and socially, and denied discussing the merits of the case. 15. Referring to the above-mentioned newspaper article, the applicant's lawyers challenged the President of the Constitutional Court for bias, seeking his removal from the examination of case no. 40/03. Their challenge was dismissed on the ground that the mere fact that the two officials had met informally did not constitute a basis for the withdrawal of a judge from proceedings before the Constitutional Court. 16. On 30 December 2003 the Constitutional Court gave its ruling in case no. 40/03, finding that Decree no. 40 was not in compliance with Article 29 § 1, Article 82 § 1 and Article 84 § 21 of the Constitution, the constitutional principle of the rule of law and section 16 ( 1 ) of the Citizenship Act. 17. On the last point, the Constitutional Court observed that citizenship could be granted by way of exception only to persons who had never been Lithuanian citizens. It noted in that connection that J. B. , a Russian citizen by birth from a Soviet military family, had acquired Lithuanian citizenship under the Citizenship Act of 3 November 1989, by which citizenship could be granted, inter alia, to persons who on that date had had their permanent residence and permanent place of work or source of income in Lithuania. In 1994 the Constitutional Court had ruled that “soldiers of the Soviet Union who previously served in the Soviet occupying military forces unlawfully stationed in the territory of Lithuania [ could ] not be regarded as permanently residing and working in Lithuania ”. On 4 November 1999 the Citizenship Commission (established in 1998 under section 4 of the 1995 Implementing Act for the Citizenship Act) had found that J. B .'s status was unlawful, since he had served in the Soviet armed forces. It had nevertheless recommended that his status be regularised in accordance with the above - mentioned section 4, by which exceptions could be made for persons who had acquired citizenship in good faith before 31 December 1993 on that unlawful ground. On 11 November 1999 the Migration Department of the Ministry of the Interior had followed that recommendation. However, in 2000 J. B. had applied for Russian citizenship, which he had been granted in June 2002; on 18 March 2003 he had been issued with a Russian passport, thereby losing his Lithuanian citizenship. The Constitutional Court observed that the applicant had signed Decree no. 40 on 11 April 2003 even though the Migration Department of the Ministry of the Interior had reminded him the day before that J. B. had previously lost his Lithuanian citizenship. 18. The Constitutional Court held that, as a result, Decree no. 40 was also in breach of Article 84 § 21 of the Constitution – which provides that the President is to grant citizenship in accordance with the procedure established by law – and the constitutional principle of the rule of law. 19. The Constitutional Court went on to note that, although the Lithuanian authorities had already made an exception in his favour by regularising his status in 1999, J. B. had acquired Russian citizenship in 2000. This showed that “citizenship of the Republic of Lithuania was of less value to [J.B.] than citizenship of the Russian Federation ”. The Constitutional Court further noted that the Director of the State Security Department had informed the applicant, prior to 11 April 2003, that an investigation was being carried out into J. B .'s activities as director of an aviation company and, on 17 March 2003, that J. B. had threatened to disseminate information discrediting the applicant if the latter failed to keep his promise to appoint him as an adviser. In the Constitutional Court's view, the applicant had knowingly ignored these circumstances, although they were of crucial importance in deciding whether or not to grant citizenship to J. B. by way of exception. Having regard also to the fact that J. B. had made a significant financial contribution to the applicant's election campaign, it concluded that the decision to grant him citizenship had been “ determined not by any merit rendering [J. B. ] worthy of becoming a citizen of the Republic of Lithuania, but by his significant assistance by financial and other means to [the applicant's ] election campaign in 2002 ”. Thus, “the granting of citizenship to [J. B. ] by way of exception was nothing but a reward by the President of the Republic R. Paksas to [J. B. ] for the aforesaid support ”; consequently, in issuing Decree no. 40, the President had heeded “ neither the Constitution ... nor the law, nor the interests of the people and the State, but purely his own interests ”. The court therefore concluded that the applicant had “ afforded [J. B. ] exceptional treatment and knowingly disregarded the fundamental principles enshrined in Article 29 § 1 and Article 82 § 1 of the Constitution respectively, whereby all persons are equal before State institutions or officials, and the President of the Republic must be equally just to all”. 20. In a public speech on 31 December 2003, and again in his New Year speech, the applicant declared that “politics [ had ] taken precedence over the law” in the Constitutional Court's ruling. In reply, on 5 January 2004 the Constitutional Court issued a public statement emphasising its independence and noting, inter alia, that the applicant had attempted to undermine its authority. B. Impeachment proceedings 21. On 18 December 2003, eighty-six members of the Seimas submitted a proposal to initiate impeachment proceedings against the applicant. On 23 December 2003 the Seimas set up a special commission to investigate the reasonableness and seriousness of certain allegations about the applicant's conduct, in order to determine whether such proceedings should indeed be initiated. 22. On 19 February 2004 the special investigation commission concluded that some of the charges levelled against the applicant were founded and serious. Accordingly, it recommended that the Seimas institute impeachment proceedings. The State Security Department had apparently provided the commission with transcripts of secretly taped telephone conversations involving the applicant. The applicant's lawyers were not given access to the transcripts by the Department or by the commission, because it had decided not to rely on them. 23. Also on 19 February 2004 the Seimas decided to follow the special investigation commission's recommendation and requested the Constitutional Court to determine whether the specific acts of the applicant cited by the commission had breached the Constitution. The impeachment charges submitted to the Constitutional Court included the following allegations in particular, involving purely private interests to the detriment of those of the nation, thus discrediting the institution of the presidency : – that the applicant had undertaken to perform a number of actions in J. B .'s favour in exchange for financial and other forms of support during his election campaign, and had later acted under J.B.'s influence; – that, as a reward for this support, the applicant had unlawfully granted Lithuanian citizenship to J. B. ; – that he had disclosed a State secret by informing J. B. that the secret services were investigating his activities, notably by telephone tapping; and – that he had exercised undue pressure on the management decisions of a private company in order to secure pecuniary advantages for certain people close to him. 24. On 1 March 2004 the Constitutional Court accepted the request for consideration as case no. 14/04. 25. The applicant's lawyers sought the removal of the President of the Constitutional Court and all its members on grounds of bias, arguing that they had in effect already determined the case in the previous ruling of 30 December 2003 in case no. 40/03. The challenge was dismissed. 26. In a declaration of 25 March 2004 the Seimas unsuccessfully proposed that the applicant tender his resignation in order to avoid protracted impeachment proceedings. The declaration alleged that his actions had become increasingly unpredictable and represented a danger to the State, its citizens and the prestige of the presidency. 27. On 31 March 2004 the Constitutional Court concluded that the applicant had committed gross violations of the Constitution and a breach of his constitutional oath on account of the following acts: – unlawfully granting citizenship to J.B. by Decree no. 40 as a reward for the latter's financial and other forms of support, in breach of section 16( 1 ) of the Citizenship Act and Article 29 § 1, Article 82 § 1 and Article 84 § 21 of the Constitution; – knowingly hinting to J. B ., in breach of sections 3(7), 9(2) and 14(1) of the Official Secrets Act and Article 77 § 2 and Article 82 § 1 of the Constitution, that the law- enforcement institutions were investigating him and tapping his telephone conversations; and – exploiting his official status to influence decisions by the Žemaitijos keliai company concerning the transfer of shares with a view to defending the property interests of certain private individuals close to him, in breach of section 3 of the Adjustment of Private and Public Interests in the Public Service Act and Article 29 § 1, Article 77 § 2 and Article 82 § 1 of the Constitution. 28. The applicant sought clarification of these conclusions under section 61 of the Constitutional Court Act, but his request was refused by the Constitutional Court on 6 April 2004 on procedural grounds. 29. On 6 April 2004 the Seimas decided to remove the applicant from the office of President on account of the gross violations of the Constitution found by the Constitutional Court. Its decision was taken by eighty-six votes to seventeen for the first breach, eighty-six votes to eighteen for the second and eighty-nine votes to fourteen for the third. C. Disqualification from elected office 30. The applicant wished to stand as a candidate in the presidential election called for 13 June 2004. On 22 April 2004 the Central Electoral Committee (CEC) found that there was nothing to prevent him from standing. By 7 May 2004 the applicant had gathered the required number of signatures in support of his candidacy, and submitted them to the CEC with a view to his registration as a candidate. 31. However, on 4 May 2004 the Seimas amended the Presidential Elections Act by inserting the following provision : “A person who has been removed from parliamentary or other office by the Seimas in impeachment proceedings may not be elected President of the Republic if less than five years have elapsed since his removal from office. ” 32. Following this amendment, the CEC refused to register the applicant as a candidate in the forthcoming election. The applicant lodged a complaint with the Supreme Administrative Court on 10 May 2004, arguing in particular that that decision thwarted the legitimate expectations of his supporters and ran counter to the principles of the rule of law and the prohibition of retrospective legislation. 33. On an unspecified date, a number of members of the Seimas requested the Constitutional Court to review the constitutionality of the amendment to the Presidential Elections Act, arguing that barring a person who had been removed from office from running for election as President was in itself in breach of the Constitution. The request was registered as case no. 24/04. 34. The Constitutional Court held on 25 May 2004 that disqualifying a person who had been removed from office from standing in presidential elections was compatible with the Constitution, but that subjecting such a restriction to a time-limit was unconstitutional. The court held, inter alia : “... The Constitutional Court has held that a breach of the oath is, at the same time, a gross violation of the Constitution, while a gross violation of the Constitution is, at the same time, a breach of the oath to the nation (Constitutional Court ruling of 30 December 2003; Constitutional Court conclusion of 31 March 2004) ... A gross violation of the Constitution or a breach of the oath undermines trust in the institution of the presidency and in State authority as a whole ... Removal from office of a president who has grossly violated the Constitution or breached the oath is one of the ways of protecting the State for the common good of society, as provided for in the Constitution. It needs to be stressed that, under the Constitution, a person in respect of whom the Seimas – following a finding by the Constitutional Court that he, as President, has committed a gross violation of the Constitution and breached the oath – has applied the constitutional sanction, namely removal from office, may not evade constitutional liability through fresh presidential elections, a referendum or any other means... The Constitution does not provide that, after a certain time has elapsed, a president whose actions have been recognised by the Constitutional Court as having grossly violated the Constitution, and who has been found to have breached the oath and has been removed from office by the Seimas [ on that account ] ..., may [subsequently] be treated as though he had not breached the oath or committed a gross violation of the Constitution ... [ A person]. .. who has been removed from office by the Seimas, the body representing the people, will always remain someone who has breached his oath to the nation and grossly violated the Constitution, and who has been dismissed as President for those reasons ... [A person removed from the office of President ] may never again ... give an oath to the nation, as there would always exist a reasonable doubt ... as to its reliability ... Impeachment is a form of public and democratic scrutiny of those holding public office, a measure of self-protection for the community, a ... defence against high-ranking officials who disregard the Constitution and laws... Where a person has been removed from the office of President ... for a gross violation of the Constitution or a breach of the oath ... he may never again be elected President of the Republic [or] a member of the Seimas; [he] may never hold office as ... a member of the Government, [or] the National Audit Officer, that is, [he] may not hold an office provided for in the Constitution for which it is necessary to take an oath in accordance with the Constitution ... ” 35. On 28 May 2004 the Supreme Administrative Court dismissed the applicant's complaint against the decision of the CEC, referring, inter alia, to the Constitutional Court's ruling of 25 May 2004. It noted in particular : “ ... It appears from the reasoning of the Constitutional Court that ... the applicant has forfeited the right to be elected President with effect from 6 April 2004. Therefore, he ... cannot take part in the election announced on 15 April 2004... Until it was amended on 4 May 2004, the Presidential Elections Act did not specify the [residual] rights of a person who had forfeited the right to be elected President. Article 6 § 1 of the Constitution provides that the Constitution is directly applicable ... [I]t follows that, from the moment ... the applicant submitted his candidacy for the election, his situation was governed by the Constitution, which, as the Constitutional Court has found, bars [ a person removed from the office of President ] from standing in presidential elections. In these circumstances ... there has been no breach of the principle of the prohibition of retrospective legislation ...” 36. On 15 July 2004 the Seimas passed an amendment to the Seimas Elections Act, to the effect that any official who had been removed from office following impeachment proceedings was disqualified from being a member of parliament. D. Criminal proceedings against the applicant 37. In autumn 2004 the Prosecutor General discontinued the investigation into allegations that while in office, the applicant had abused his authority in relation to a private company (Article 2 28 of the Criminal Code). 38. On an unspecified date the applicant was charged with disclosing information classified as a State secret (Article 125 § 1 of the Criminal Code). On 25 October 2004 the Vilnius Regional Court acquitted him for lack of evidence. On 1 March 2005 the Court of Appeal reversed that decision, finding the applicant guilty. It held, however, that owing to new circumstances, namely the applicant's removal from office as President and disqualification from elected office, it was reasonable to discharge him from criminal liability and to discontinue the criminal proceedings. On 13 December 2005 the Supreme Court quashed the Court of Appeal's judgment, upholding the acquittal delivered by the Vilnius Regional Court. E. Criminal proceedings against J. B. 39. On account of his threat to disseminate information discrediting the applicant if he failed to keep his promise to appoint him as an adviser ( see paragraph 19 above), J. B. was convicted of having, for his own benefit and “by means of mental coercion, required a civil servant or person in a position of public authority to carry out or refrain from certain actions” (Article 287 § 1 of the Criminal Code). He was fined 10, 000 Lithuanian litai, equivalent to approximately 2,900 euros (judgments of the Vilnius City 1st District Court of 22 November 2004, the Vilnius Regional Court of 6 April 2005, and the Supreme Court of 18 October 2005). III. GUIDELINES ON ELECTIONS ADOPTED BY THE VENICE COMMISSION 59. The relevant passages of the Guidelines on Elections adopted by the European Commission for Democracy through Law (“the Venice Commission”) at its 51st session (5-6 July 2002) read as follows: “ I. Principles of Europe's electoral heritage The five principles underlying Europe's electoral heritage are universal, equal, free, secret and direct suffrage. Furthermore, elections must be held at regular intervals. 1. Universal suffrage 1.1. Rule and exceptions Universal suffrage means in principle that all human beings have the right to vote and to stand for election. This right may, however, and indeed should, be subject to certain conditions: a. Age ... b. Nationality ... c. Residence ... d. Deprivation of the right to vote and to be elected: i. provision may be made for depriving individuals of their right to vote and to be elected, but only subject to the following cumulative conditions: ii. it must be provided for by law; iii. the proportionality principle must be observed; conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them; iv. the deprivation must be based on mental incapacity or a criminal conviction for a serious offence; v. furthermore, the withdrawal of political rights or finding of mental incapacity may only be imposed by express decision of a court of law. ...” The Explanatory Report, adopted by the Venice Commission at its 52nd session (18-19 October 2002), reads as follows (footnote omitted): “... provision may be made for clauses suspending political rights. Such clauses must, however, comply with the usual conditions under which fundamental rights may be restricted; in other words, they must: – be provided for by law; – observe the principle of proportionality; – be based on mental incapacity or a criminal conviction for a serious offence. Furthermore, the withdrawal of political rights may only be imposed by express decision of a court of law. However, in the event of withdrawal on grounds of mental incapacity, such express decision may concern the incapacity and entail ipso jure deprivation of civic rights. The conditions for depriving individuals of the right to stand for election may be less strict than for disenfranchising them, as the holding of a public office is at stake and it may be legitimate to debar persons whose activities in such an office would violate a greater public interest. ...” | The applicant, a former President of Lithuania, was removed from office by Parliament following impeachment proceedings for committing a gross violation of the Constitution and breaching the constitutional oath. Criminal proceedings were also brought against him on a charge of disclosing information classified as a State secret, but he was eventually acquitted. The applicant alleged, inter alia, that the institution of impeachment proceedings followed by criminal proceedings against him had amounted to trying him twice for the same offence. |
612 | Doctors and health workers | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1961 and lives in Berlin. She had been working as a geriatric nurse for Vivantes Netzwerk für Gesundheit GmbH (hereinafter referred to as “Vivantes”), a limited liability company specialising in health care, geriatrics and assistance to the elderly which is majority-owned by the Land of Berlin, from 16 September 2000 until 9 February 2005, when she was dismissed. A. The events leading to the applicant’s dismissal 7. Since January 2002 the applicant had been working in a geriatric nursing home operated by Vivantes, where the patients were partly bedridden, disorientated, and generally dependent on special assistance. In 2002 the Medical Review Board of the Health Insurance Fund ( Medizinischer Dienst der Krankenkassen, hereinafter referred to as “MDK”) established serious shortcomings in the daily care provided there, caused by a shortage of staff. 8. Between 24 January 2003 and 19 October 2004 the applicant and her colleagues regularly indicated to the management that they were overburdened on account of staff shortages and therefore had difficulties carrying out their duties. They specified the deficiencies in the care provided and also mentioned that services were not properly documented. In a notification dated 18 May 2003 the applicant further mentioned that she was no longer in a position to assume responsibility for the shortcomings in care resulting from staff shortages. From 19 May 2003 onwards the applicant repeatedly fell ill and was sometimes unable to work. One medical certificate stated that this was the result of overworking. 9. In November 2003, following a further inspection, the MDK, established serious shortcomings in the care provided, on grounds of, inter alia, staff shortages, inadequate standards and unsatisfactory care as well as inadequate documentation of care, and accordingly threatened to terminate the service agreement with the applicant’s employer. Subsequently, restructuring took place. 10. Following a number of further notifications to her superiors explaining the situation, in particular in October 2004, the applicant again fell ill and finally consulted a lawyer. 11. In a letter dated 9 November 2004 the applicant’s legal counsel wrote to the Vivantes management. He pointed out that, on account of the lack of staff, the patients’ basic hygienic care ( ausreichende hygienische Grundversorgung ) could no longer be guaranteed. He also requested the management to specify how they intended to avoid criminal responsibility – also for the staff – and how they intended to ensure that the patients could be properly cared for. He pointed out to the management that only then could they avoid a criminal complaint or a public discussion of the situation, with all its negative implications. He gave the management until 22 November 2004 to respond. 12. On 18 November 2004 the MDK again visited the premises without prior notice. It was subsequently in dispute between the parties whether the MDK had in fact established that the staffing situation, although difficult, was not critical. 13. On 22 November 2004 the management rejected the applicant’s accusations. 14. On 7 December 2004 the applicant’s lawyer lodged a criminal complaint against Vivantes for aggravated fraud and requested the public prosecutor to examine the circumstances of the case under all its relevant legal aspects. He specified that the complaint also served the purpose of avoiding criminal responsibility for the applicant herself following her numerous complaints to Vivantes which had not brought any improvements in the care provided. It was argued that, owing to the lack of staff and the inadequate standards, her employer knowingly failed to provide the high-quality care announced in its advertisements and hence did not provide the services paid for and was putting the patients at risk. He also alleged that Vivantes had systematically tried to cover up the existing problems and urged staff to falsify records of services rendered. The applicant’s complaint referred to the report produced by the MDK following their visit in 2003, and stated that she would be willing to attest to the bad conditions at the nursing home. It further included statements by the applicant concerning overworking and referred to minutes of a team meeting advising Vivantes staff, in order to avoid disciplinary consequences, not to disclose staff shortages and time pressures to patients and their relatives. The criminal complaint included the following passage: “The company Vivantes GmbH, which has financial difficulties and is aware of this, has deceived family members, because the care provided does not in any way correspond to or justify the fees paid. Vivantes GmbH is therefore enriching itself and accepts the inadequacy of the medical and hygienic care. ... This demonstrates how it systematically – including by intimidating staff – tries to cover up existing problems. Staff are requested to draw up records of care provided which do not reflect the way such care was actually given ... Similar problems exist in other institutions; therefore considerable damage is at issue.” 15. On 10 December 2004 the applicant’s lawyer also contacted the board of directors of the applicant’s employer and stated that there was a shortage of staff at the nursing home and that it failed to meet hygiene standards. 16. On 5 January 2005 the Berlin Public Prosecutor’s Office discontinued the preliminary investigations against Vivantes pursuant to Article 170 § 2 of the Code of Criminal Procedure ( Strafprozessordnung - see “Relevant domestic law and practice” below). 17. By a letter dated 19 January 2005 the nursing home dismissed the applicant, on account of her repeated illness, with effect from 31 March 2005. The applicant challenged the dismissal before the Berlin Labour Court (file No. 35 Ca 3077/05). 18. Subsequently, the applicant contacted friends and also her trade union, Vereinte Dienstleistungsgewerkschaft (ver.di). On 27 January 2005 they issued a leaflet headed as follows: “Vivantes wants to intimidate colleagues!! Not with us! Immediate revocation of the dismissal of our colleague Brigitte who used to work at Vivantes Forum for Senior Citizens Call for the foundation of a non-party solidarity group” The leaflet also stated that the applicant had lodged a criminal complaint but that this had not resulted in a criminal investigation and that she had been dismissed on account of her illness. It further stated as follows: “Let’s answer back at last ... The insanity that private operators, together with the Berlin SPD/PDS senate, are destroying our manpower out of greed ... Vivantes flagrantly takes advantage of our social commitment. ... This is more than just a dismissal! This is a political disciplinary measure taken in order to gag employees ...” 19. On 31 January 2005 the applicant sent one such leaflet by fax to the residential home, where it was distributed. Only then did Vivantes become aware of the applicant’s criminal complaint. 20. On 1 February 2005 the applicant’s employer gave her the opportunity to make a statement regarding the leaflet; the applicant declined to do so, however. On 4 February 2005 Vivantes informed the works council that it intended to dismiss the applicant without notice. On 8 February 2005 the works council declared that it would not agree to the applicant’s dismissal. 21. On 9 February 2005 the applicant’s employer dismissed her without notice or, alternatively, by 31 March 2005 on suspicion of having initiated the production and dissemination of the leaflet. 22. A new leaflet was subsequently issued reporting on this dismissal; in addition, the situation was reported in a TV programme and in two articles published in different newspapers. 23. On 21 February 2005 the preliminary investigation proceedings against Vivantes were resumed by the Berlin Public Prosecutor’s Office at the applicant’s request. 24. On 25 February 2005 the applicant lodged a claim with the Berlin Labour Court (file no. 39 Ca 4775/05) against her dismissal without notice of 9 February 2005. 25. On 25 April 2005 the applicant’s former employer issued a further notice of dismissal. The applicant’s claim of 25 February 2005 was then extended accordingly. 26. On 12 May 2005 the applicant was heard as a witness by the public prosecution in preliminary investigation proceedings against Vivantes. The preliminary proceedings were again discontinued on 26 May 2005 pursuant to Article 170 § 2 of the Code of Criminal Procedure. B. Civil proceedings following the applicant’s dismissal without notice 27. By a judgment of 3 August 2005 (file No. 39 Ca 4775/05) the Berlin Labour Court ( Arbeitsgericht ) established that the employment contract had not been terminated by the dismissal of 9 February 2005 since this could not be justified under Article 626 of the German Civil Code ( Bürgerliches Gesetzbuch ) or section 1(1) of the Unfair Dismissal Act ( Kündigungsschutzgesetz - see “Relevant domestic law and practice” below). In this connection it found that the leaflet – the content of which was attributable to the applicant, since she had transmitted it to her employer without any further declaration – was covered by her right to freedom of expression and did not amount to a breach of her duties under the employment contract. Although it was polemical, it had been based on objective grounds and had not upset the “working climate” in the nursing home. 28. Following a hearing on 28 March 2006, the Berlin Labour Court of Appeal ( Landesarbeitsgericht ), by a judgment of the same date, quashed the judgment of the Labour Court and found that the dismissal of 9 February 2005 had been lawful as the applicant’s criminal complaint had provided a “compelling reason” for the termination of the employment relationship without notice under Article 626 § 1 of the Civil Code and had made continuation of the employment relationship unacceptable. It found that the applicant had frivolously based the criminal complaint on facts that she could not prove in the course of the proceedings since, in particular, merely referring to the shortage of staff was not sufficient to enable her to allege fraud, and since she had failed to further specify the alleged instruction to falsify records, which was also evidenced by the fact that the public prosecutor had not opened an investigation. The Labour Court of Appeal further held that the criminal complaint amounted to a disproportionate reaction to the denial by Vivantes of any staff shortages, since the applicant had never attempted to have her allegation of fraud examined internally and since, moreover, she had intended to put undue pressure on her employer by provoking a public discussion of the issue. It also pointed out that the nursing home was under the supervision of the MDK, which had carried out a further inspection there on 18 November 2004, shortly before the applicant had lodged her complaint. She could have awaited the outcome of that visit and therefore her criminal complaint had been unnecessary. The court, referring also to the principles established by the Federal Labour Court in its relevant case-law (see “Relevant domestic law and practice” below), concluded that the applicant had not been acting within her constitutional rights and had breached her duty of loyalty towards her employer. 29. On 6 June 2007 the Federal Labour Court ( Bundesarbeitsgericht ) dismissed an appeal by the applicant against the decision refusing her leave to appeal on points of law. 30. By a decision of 6 December 2007, which was served on the applicant on 12 December 2007, the Federal Constitutional Court refused, without stating further reasons, to accept her constitutional complaint for adjudication. | This case concerned the dismissal of a geriatric nurse after having brought a criminal complaint against her employer alleging deficiencies in the care provided. The applicant complained that her dismissal and the courts’ refusal to order her reinstatement had violated her right to freedom of expression. |
337 | Journalists covering demonstrations | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1967 and lives in Baku. A. The alleged ill-treatment 6. The applicant was a journalist and the editor-in-chief of a newspaper named Boz Qurd. 7. On 9 October 2005 a number of opposition parties held an unauthorised demonstration in Baku. The applicant, together with five other journalists, was present at the demonstration to report on the events. The applicant was not wearing a special blue vest identifying him as a journalist, but he was wearing a journalist badge on his chest. 8. During the dispersal of the demonstration by the police, the applicant and his colleagues were beaten up and received various injuries. According to the applicant, he told the police officers that he was a journalist and asked them to stop. The applicant was hit on the head and lost consciousness following his beating. 9. The applicant was taken to hospital the same day. On 26 October 2005 he received a medical certificate with a diagnosis of closed cranio-cerebral trauma, concussion and soft-tissue damage to the crown of the head. 10. On 10 July 2006 the applicant obtained a medical certificate from Baku City Polyclinic no. 19. That certificate indicated that the applicant had been registered as a patient diagnosed with closed cranio-cerebral trauma and concussion, and that his condition required long-term treatment. B. The criminal proceedings 11. The six journalists who had been beaten up on 9 October 2005 lodged a joint criminal complaint. On 9 November 2005 the Sabail District Police Department instituted criminal proceedings under Article 132 (beating) of the Criminal Code. On 22 December 2005 the case was re-qualified under Article 163 (obstruction of the lawful professional activity of journalists) of the Criminal Code and transferred to the Sabail District Prosecutor’s Office. 12. On 12 January 2006 the applicant was questioned by the investigator in charge of the case. The applicant stated that he had been beaten with truncheons by a group of police officers while he was observing the demonstration as a journalist. The applicant also stated that he did not know the police officers who had hit him, although he did know the police officers who were in charge of the police unit. The applicant submitted a photo of an officer (A.V.) who was the head of the Riot Police Regiment of the Baku Police Office. The applicant’s version of the events was also confirmed by statements from two other journalists, E.M. and N.A., who were present at the relevant time at the place of the incident. 13. According to the Government, on 28 January 2006 the investigator ordered a forensic examination of the applicant, but the applicant did not appear for this examination. No copy of any decision in this respect was submitted by the Government to the Court. The applicant alleged that he had not been informed of this decision by the investigator. 14. By a letter of 2 February 2006, the investigator in charge of the case requested the Sabail District Police Department to identify the police officers who had hit the applicant. In reply to the investigator’s letter, on 25 February 2006 the Head of the Sabail District Police Department wrote that they had not been able to identify the relevant police officers, however they would continue to take measures in this respect and inform the investigator of any result. 15. On 1 March 2006 the investigator heard A.V., who denied involvement in the applicant’s beating. A.V. stated that neither he nor the police officers under his supervision had done anything unlawful to the applicant in his presence. 16. On 9 March 2006 the Sabail District Prosecutor’s Office investigator issued a decision suspending the criminal proceedings until the perpetrators of the beating had been identified. The investigator relied on the fact that the police officers allegedly involved in the applicant’s beating had not been identified. As to A.V.’s alleged involvement, the investigator relied on A.V.’s statements, noting that the latter had not carried out any unlawful actions against the applicant. 17. The applicant was not provided with any information concerning the criminal investigation until May 2006. On 9 May 2006 the applicant contacted the Sabail District Prosecutor’s Office investigator and inquired about the state of the proceedings. The investigator informed him that the criminal investigation had been suspended on 9 March 2006, but did not provide the applicant with a copy of the decision suspending the investigation. 18. On 12 May 2006 the applicant lodged a complaint with the Sabail District Court. He complained that the investigator had failed to provide him with a copy of the decision suspending the investigation, thus making it impossible for him to lodge a proper complaint against it. He also asked the court to quash this decision and remit the case for investigation. He insisted, in particular, that the group of police officers who had hit him had been under A.V.’s command, and that the photo of A.V. taken at the time of the incident had been submitted to the police. 19. On 26 May 2006 the Sabail District Court dismissed the applicant’s complaint, finding that the decision suspending the investigation had been lawful and had been sent to the applicant on 9 March 2006. The decision was silent as to A.V. and his alleged role in the applicant’s beating. It appears that the court did not hear any witness at the hearing. 20. On 1 June 2006 the applicant lodged an appeal reiterating his previous complaints. In particular, he argued that the suspension of the investigation, for which the reason given was that it was impossible to identify the policemen who had beaten him, was wrong, and that the investigation authorities knew who the perpetrators were. In this connection, he noted that he and other journalists had specifically identified A.V., who was present at the scene of the incident at the relevant time. 21. On 13 June 2006 the Court of Appeal dismissed the applicant’s appeal and upheld the Sabail District Court’s decision of 26 May 2006. C. The civil proceedings 22. On 9 November 2006 the applicant lodged a separate civil action against the Ministry of Internal Affairs, asking for compensation for pecuniary and non-pecuniary damage caused by his beating on 9 October 2005. He relied on Articles 3, 10 and 11 of the Convention. 23. On 20 November 2006 the Sabail District Court refused to admit the action for non-compliance with the formal requirements. The court held that the applicant had failed, in particular, to provide a forensic report showing the cause of the injuries and had not supplied a copy of any document showing that a police officer had been found responsible for the applicant’s beating. The court also noted that the applicant had failed to identify actual individuals, rather than the Ministry of Internal Affairs in general, as defendants. 24. On 6 December 2006 the applicant appealed against the first-instance court’s inadmissibility decision, reiterating his previous complaints. 25. On 26 January 2007 the Court of Appeal upheld the Sabail District Court’s decision of 20 November 2006. 26. On 14 June 2007 the Supreme Court upheld the decisions of the lower courts. | In October 2005, the applicant, a journalist, was sent to cover an unauthorised demonstration, organised by opposition parties, in Baku. During the dispersal of the demonstration by the police, the applicant and his colleagues were beaten up and received various injuries. He submitted in particular that he had been beaten up by police and that the authorities had failed to carry out an effective investigation, letting those police officers responsible go unpunished. |
994 | Cases declared inadmissible under Article 18 in conjunction with Article 5 | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1952 and lives in Tbilisi. 8. The applicant was chairperson of the Civil Aviation Agency of Georgia (“ the CAA”) between 12 March 2002 and 13 March 2004, when he resigned. The CAA has legal personality under public law. A. Background of the case – the Constitutional Court judgment of 10 January 2003 9. By a judgment dated 10 January 2003, delivered in the case of Airzena Georgian Airlines Ltd. v. Parliament and the Ministry for Transport and Communications, the Constitutional Court declared that it was unconstitutional to use the legal term “annual regulation fee for transport activities” ( რეგულირების საფასური ), which appeared in various relevant legal acts – the Act of 20 July 2001 on the Rules of State Management and Regulation of Transport and Communications ( “ the Regulation Act”), and the Orders of 28 December 2001, nos. 109 and 110, of the Minister for Transport and Communications ( see paragraphs 59 ‑ 80 below ). 10. The Constitutional Court considered that the aforementioned “ annual regulation fee for transport activities”, which was a compulsory payment provided for in section 9 ( 5 ) of the Regulation Act, was strictly speaking neither a tax nor a levy. However, Article 94 of the Constitution only recognised the latter two kinds of compulsory payment to the State. Furthermore, unlike taxes and levies, the regulation fee was not paid into the State ’ s coffers or to a local authority, but directly to the CAA. The Constitutional Court considered that in those circumstances the fee amounted to a special form of tax, which was a compulsory payment and which had the features of both a traditional levy (payable in exchange for a service or the granting of a right) and of a tax (payable on the annual income of the body concerned). 11. The defendant authorities – Parliament and the Ministry for Transport and Communications – argued before the Constitutional Court that there was a need for some kind of compulsory regulation fee for transport activities because it was not possible for the CAA to sign contracts with civil aviation companies. The Constitutional Court dismissed that argument, pointing out that the regulation of transport activities meant the provision of a service by a public authority in exchange for the payment of a fee for that service. Such relationships could only arise within the framework of a mutual contract, freely entered into by the parties concerned. A fee received by a public authority for a service should therefore take the form of income received for work carried out on a contractual basis, in accordance with section 13 ( d) of the Public-Law Entities Act. 12. The Constitutional Court further observed that the claimant, a private airline, would obviously never be able to carry out its business without the transport service provided by the CAA. However, regard being had to the principle of the freedom to choose services, even an undeniably necessary service should be the subject of a free agreement between the parties. The Constitutional Court thus concluded that if the matter at issue were settled in that way, then future situations in which the payment of considerable amounts imposed unilaterally by a public authority, in total disregard of the opinions of the companies concerned, would be avoided. The Constitutional Court emphasised that not even constitutional provisions could prevent a public authority in charge of the regulation of civil aviation from signing a contract with a private entity which included conditions and rules for services to be provided under that contract. 13. The Constitutional Court ruled that its judgment of 10 January 2003 would become effective on 1 April 2003. B. Criminal proceedings against the applicant 14. On 13 February 2004 criminal proceedings were instituted for abuse of power against unnamed officers of the Ministry of Transport and Communications, the CAA and two State-owned civil aviation companies. That decision was taken on the basis of information provided by “an investigative journalism organisation carrying out research into corruption”. 15. On 16 March 2004 a charge of repeated abuse of power was brought against the applicant himself, under Article 332 §§ 1 and 3 ( a) of the Criminal Code, by the General Public Prosecutor ’ s Office (“ the GPPO”). He was accused in particular of having entered into civil contracts in his capacity as chairperson of the CAA on 28 March and 13 August 2003 with three civil aviation companies – Sakaeronavigatsia, Tbilisi International Airport and Air-GP-Georgia – which undertook to pay the CAA on a monthly basis a “fee for services rendered in relation to the regulation of activities” ( მომსახურების საფასური ). Accordingly, between April and September 2003 the CAA received 600,000 Georgian laris ( GEL ) (about 280,000 euros (EUR)). According to the investigator, the applicant ’ s actions in using the words “fee for services rendered in relation to the regulation of activities” (hereinafter “fee for services”) had concealed what had actually in fact amounted to the old “annual regulation fee for transport activities”, a legal term and obligation which had become unconstitutional after 1 April 2003, when the Constitutional Court judgment of 10 January 2003 had entered into force (see paragraph 13 above). 16. The applicant was further accused of having issued Order no. 1 of 25 November 2003, and of applying it retroactively, again in breach of the Constitutional Court ’ s judgment of 10 January 2003 (see paragraph 81 below). The order had allowed the CAA to charge Sakaeronavigatsia and Tbilisi International Airport the sum of GEL 134,609 (about EUR 64,000) between 1 October and 5 December 2003 in respect of the regulation fee. 17. Thus, by having wilfully circumvented the legal effects of the Constitutional Court ’ s judgment of 10 January 2003, the applicant “ had acted unlawfully and had therefore committed an abuse of power”. 18. The applicant was arrested on 16 March 2004. He was charged on 17 March 2004 but pleaded not guilty. 1. Pre-trial proceedings 19. On 19 March 2004 the Krtsanisi-Mtatsminda District Court of First Instance in Tbilisi (“ the Krtsanisi-Mtatsminda Court”), allowing an application by the GPPO, ordered the applicant ’ s detention for three months, pending investigation and trial. 20. By a final decision of 25 March 2004, the Tbilisi Regional Court dismissed an appeal by the applicant as inadmissible and upheld the detention order of 19 March 2004. 21. On 14 June 2004 the Tbilisi Regional Court, after hearing both parties ’ arguments, allowed an application by the GPPO to extend the applicant ’ s pre-trial detention until 16 September 2004. No appeal lay against that decision, and it was therefore final. 22. On 2 0 July 2004 an accountancy expert from the crime detection department of the Ministry of the Interior, whose services had been solicited by the GPPO as part of the investigation of the applicant ’ s case, drew up an audit of the CAA ’ s regulatory activities (“the audit report of 2 0 July 2004”). Firstly, the expert listed the acts which constituted the legal basis for the activities of the CAA and which were in force before and after 1 April 2003, when the Constitutional Court ’ s judgment of 10 January 2003 had entered into force. He then distinguished three periods of activity: (i) the period between 1 January 2002 and 1 April 2003, corresponding to the imposition of “the annual regulation fee for transport activities” by the CAA on the civil aviation companies concerned; (ii) the period between 1 April and 1 October 2003, corresponding to the regulation by the CAA of the activities of the companies in question in accordance with conditions negotiated as part of the contracts it entered into; and (iii) the period between 1 October 2003 and 13 March 2004, when the CAA had collected regulation fees on the basis of Order no. 1, which had been issued by its chairperson, the applicant, on 25 November 2003. 23. The expert noted that the adoption of the Constitutional Court ’ s judgment of 10 January 2003 had led to “the suppression of the imposition by the CAA, in the form of an order, of the ‘ annual regulation fee for transport activities ’ on companies operating within civil aviation and the removal of the compulsory nature of the payment of that fee”. However, “the judgment in question had not declared that it was unlawful for the CAA to provide its services to the companies concerned on the basis of negotiated contracts”. According to the expert, the judgment indicated, on the contrary, that there was a “need for such contracts and a legal settlement of the issue in this way”. The expert assumed that the applicant had taken the latter route, “which had been suggested to him by the Constitutional Court ”. That had brought him to sign the impugned contracts with Sakaeronavigatsia and Tbilisi International Airport on 28 March 2003, that is to say, three days before the entry into force of the judgment in question. On 13 August 2003 the applicant had signed the same kind of contract with Air-GP-Georgia. In each case, the CAA ’ s remuneration had been calculated on a monthly basis and was referred to as a fee for services provided in the field of regulation. The three contracts had been terminated on 1 October 2003. 24. As regarded Order no. 1, which had been issued by the applicant on 25 November 2003, the expert noted that the order, approved for entry into force by the Ministry of Justice on 27 November 2003, had been able to be applied retrospectively, that is as of 1 October 2003, which was the date of the termination of the three above-mentioned contracts. He said the order showed good conduct in the financial activities relating to the functioning of civil aviation in the country which, by its very nature, had to be a continuous process. 25. After examining the available evidence, the expert concluded that the CAA ’ s charging of the fees for the three above-mentioned periods of activity “was based on the relevant laws and regulatory acts”. He established, moreover, that the regulation fee at that time constituted the sole source of revenue for the CAA, a public-law entity not financed by the State. Had it not charged those amounts, the CAA would have been obliged to continue functioning without, though, paying its employees ’ salaries. The expert reiterated that the regulation fee paid to the CAA by the companies concerned was included in the price for the service that those companies offered to individuals ( air travel tickets) or other companies (carriage of goods). Payment of the fee to the CAA did not therefore cause them any financial damage and, even if there had nevertheless been a loss, it would in the end have been passed on to the consumer. 26. Generally, the expert established that the CAA had received, between 1 April 2003 and 13 March 2004, GEL 630,000 (some 310,000 euros (EUR) ) in fees for the regulatory services provided under the three impugned contracts with Tbilisi International Airport, Air-BP-Georgia and Sakaeronavigatsia, and GEL 774, 376 (some EUR 380,000) by way of the fee collected on the basis of Order no. 1. In any event, the expert emphasised that the charging of those sums by the CAA to the various private companies had been continuous in time and had been based on valid legal acts (either statutes or other legal instruments ). Out of all the above ‑ mentioned amounts received by the CAA between 1 April 2003 and 13 March 2004, the applicant had made a personal profit of GEL 15,618 and 17,090 (some EUR 7,500 and 8,200 ) by way of, respectively, the salary and business trips allowances he had received over the same period of time. A further GEL 490,473.40 (some EUR 225,000) had been paid to the State Budget in income tax and social security charges, while the remaining funds had been spent on the salaries of other CAA employees and various business trips and management expenses. 27. On 31 August 2004 the preliminary investigation was terminated and a bill of indictment was served on the applicant. According to the bill, between 1 April and 1 October 2003 the CAA had carried out three unlawful activities: (i) firstly, it had received, in breach of the judgment of the Constitutional Court of 10 January 2003, a regulation fee from eight civil aviation companies; (ii) secondly, twenty -two companies had paid the CAA the same regulation fee on the basis of Order no. 1, issued by the applicant; (iii) and, thirdly, the three companies – Sakaeronavigatsia (a government-owned undertaking), Tbilisi International Airport and Air ‑ BP ‑ Georgia – had paid the fee for services to the CAA on the basis of contracts concluded by the applicant. The pecuniary damage thus incurred by the companies concerned amounted to GEL one million, of which GEL 517,341.51 (some EUR 250,000) was caused to Sakaeronavigatsia. The applicant had used the amounts received to pay salaries and expenses for the management and business trips. 28. On 15 September 2004 the applicant challenged the indictment before the investigator of the Chief Prosecutor ’ s Office handling the case, arguing that the evidence that had been gathered did not support the charges. In particular, the investigation authorities had not explained how, within the meaning of Article 332 of the Criminal Code, the acts committed had damaged the “interests of the civil service”; what unlawful “personal profit” he had derived; what unlawful personal profit had been derived by third parties and who those people actually were; which of the rights of the companies concerned had been breached by his action; what legal interests of the State had been disregarded; and in what way that “disregard” had been “substantial” (see Article 332 of the Criminal Code, at paragraph 58 below). He again pointed out that the judgment of the Constitutional Court at issue authorised the CAA to continue to charge the fee for services, provided that the payment was based on negotiated contracts and not imposed, as hitherto. Contrary to the argument put forward by the investigator, the companies concerned could not be deemed to have incurred any substantial losses simply by having fulfilled contractual obligations which had been freely negotiated with the CAA. Moreover, those companies had never complained of the unlawfulness of the contracts in question. Lastly, the applicant argued that “ none of the State ’ s legal interests ” had been disregarded, given that the State could not claim to be a victim of contractual relationships between two entities which were independent of it. 29. On 16 September 2004 the investigator rejected that complaint as ill ‑ founded. He pointed out that the indictment of 31 August 2004 had been based on evidence gathered during the investigation, and that such evidence was sufficient to dispel any doubts that the applicant had committed the offence provided for in Article 332 §§ 1 and 3 ( a) of the Criminal Code. In particular, the investigator pointed out that everyone had to comply with the judgment of the Constitutional Court of 10 January 2003, which had the force of law, but which the applicant had failed to do. After 1 April 2003, the date of entry into force of that judgment, the applicant had continued to charge the regulation fee, referring to it as a “fee for services provided in the field of the regulation of activities” in order to conceal the nature of the activity. The Constitutional Court had considered, however, that revenues gained by the CAA in the form of a regulation fee were unconstitutional. The applicant and his employees had derived a personal profit from the amounts at issue in the form of salaries, and management and business trip fees. For example, the applicant had received total salary of GEL 15,618 (some EUR 7,500). According to the investigator, even if most of the companies concerned had declared that they had not incurred any loss from the applicant ’ s activities, the charging by the CAA of the disguised regulation fee in breach of the judgment of the Constitutional Court had damaged the legal interests of the State. Furthermore, by giving retrospective effect to Order no. 1, registered by the Ministry of Justice on 27 November 2003, the applicant had jeopardised the well-being of the companies concerned. 30. On 18 September 2004 the applicant lodged an appeal against that decision with the Chief Prosecutor. He stated that the investigator had failed properly to assess the circumstances of the case. He reiterated the arguments made in his complaint of 15 September 2004 ( see paragraph 28 above). 31. On 18 September 2004 a prosecutor from the Chief Prosecutor ’ s Office replied to the applicant, stating that his appeal had been rejected because the decision of 16 September 2004 had properly and exhaustively addressed all his claims. 32. On 20 September 2004 the indictment was approved by a deputy chief prosecutor and the case sent for trial before the Vake-Saburtalo District Court of First Instance in Tbilisi (“the Vake-Saburtalo Court”). 33. On 1 February 2005 the applicant applied to the Vake-Saburtalo Court, claiming that he had been unlawfully detained since 16 September 2004. In particular, the period of his pre-trial detention had expired on that date and had not been extended. He asked that he be released immediately. 34. On 16 March 2005 the Vake-Saburtalo Court held a pre-trial conference hearing in the case, ruling to commit the applicant for trial as a defendant (Article 417 §§ 1 and 3 of the CCP). Without replying to the applicant ’ s complaint of 1 February 2005 of the unlawfulness of his pre-trial detention, the court upheld the restraint measure on the basis of the “nature of the charges” and the inability to conduct a comprehensive judicial assessment of his arguments for release at the admissibility stage. 35. On an unspecified date, subsequent to a reform of the judicial system and the associated liquidation of the Vake-Saburtalo District Court, the applicant ’ s case was assigned for trial to the newly created Tbilisi City Court. 2. Trial conducted by the Tbilisi City Court between 23 March and 3 August 2005 36. When questioned by the Tbilisi City Court during the trial, the acting director and the chief accountant of Sakaeronavigatsia confirmed that their company had paid the relevant fee to the CAA even after the Constitutional Court ’ s judgment of 10 January 2003, either on the basis of a contract or on the basis of Order no. 1. They did not know at the time that they were exempted from paying the fee by the Constitutional Court ’ s ruling. 37. The managers of Tbilisi International Airport and Air - BP - Georgia, which specialised in fuel distribution, confirmed to the trial court that their companies had paid the amounts at issue pursuant to contracts that they had freely entered into with the CAA. They specified that in exchange for the fee the CAA licensed their companies ’ activities, and that without such certification it would have been impossible for Tbilisi International Airport to host international flights. 38. When questioned by the trial court, Mr Dj.K., the first deputy chairperson of the CAA, explained that at the material time, a new law, which should have been passed following the judgment of the Constitutional Court of 10 January 2003, had been delayed and that, if the applicant had not decided to enter into contracts with companies whose activities were subject to regulation, the CAA, which received no funding from the State, would have had to cease operations. That would have meant that employees of Georgian airports would no longer have been certified, that no aircraft would have been able to land at those airports and that no country would have allowed aircraft that had taken off from those airports onto its territory. By way of an example, Airzena, the airline behind the request which had resulted in the judgment of the Constitutional Court of 10 January 2003, leased its aircraft in Germany on the condition that the CAA, under an agreement entered into with the German civil aviation authority, assumed responsibility for supervising those aircraft and regulating the corresponding activities. If the CAA were to cease operations, Germany would no longer lease its aircraft to Airzena. It was to prevent any such blockages in the field of civil aviation in Georgia that the applicant had entered into the contracts, in accordance with the Public-Law Entities Act and the judgment of the Constitutional Court at issue. 39. The second deputy chairperson of the CAA told the court that he had personally worked on drafting contracts which were subsequently entered into with the three civil aviation companies. He maintained that those contracts, which had become the only source of funding for the CAA, had become necessary after the Constitutional Court had invalidated the relevant legal provisions by declaring them unconstitutional. 40. The CAA ’ s accountant explained before the trial court that on 1 January 2002 the CAA had been split from the Ministry of Transport, on the recommendation of the World Bank, and that it had become legally fully independent. The exercise of public duties had been delegated to it, including the supervision of flight safety. Since that date, the CAA had not been funded from the State budget, and had therefore been obliged to collect duties from the various private companies working in civil aviation. However, since the relevant legal provisions regulating the collection of “the annual collection fee for transport activities” had been declared invalid by the Constitutional Court, the CAA, pending the passing by Parliament of new legislation on the matter, had been forced to make contracts with civil aviation companies. Subsequently, after the amendment of the Regulation Act on 14 August 2003 (see paragraphs 77 ‑ 80 below), the chairperson of the CAA, the applicant, had become entitled to issue orders setting the amount of fees payable by the companies. 41. When questioned by the trial court, the representatives of various other private companies working in civil aviation, who were contractors of the CAA, stated that prior to 1 April 2003, they had paid the regulation fee in accordance with the law. Following the judgment of the Constitutional Court of 10 January 2003, they had stopped doing so and had only resumed payments on 1 October 2003, as a result of Order no. 1, issued by the applicant. 42. When questioned by the trial court, the accountancy expert from the Ministry of the Interior who had authored the audit report on the CAA ’ s activities confirmed the conclusions in the report relating to the legality of the CAA ’ s transactions between 1 April 2003 and 13 March 2004. 43. In his submissions before the court, the applicant first reiterated the arguments he had made during the investigation, notably in his complaint of 15 September 2004 ( see paragraph 28 above). The applicant then argued that of the amounts which he had been unjustifiably accused of charging unlawfully, he had paid GEL 490,473 (some EUR 225,000) to the State, while the remainder had been used to fund the CAA ’ s operations (see the aforementioned expert report cited at paragraphs 22-26 above). Consequently, neither he nor anyone else had derived any personal profit from the amounts in question. The applicant argued that the accountancy expert ’ s report confirmed the legality of his actions. He explained that the reason the Constitutional Court had delayed the entry into force of its judgment of 10 January 2003 had been to grant Parliament sufficient time to legislate and fill the gap arising from its judgment. In order not to leave the CAA without funds, which would have meant flight safety might have been compromised, the Constitutional Court had clearly indicated in its judgment that the CAA could enter into contractual relationships with the aviation companies concerned, which would thus be able to negotiate conditions freely. 44. It was for the very same reasons as those espoused by the Constitutional Court in its judgment that the Georgian President had issued Decree no. 364 on 25 July 2003 (see paragraph 8 2 below ). That decree, as well as section 13(d) of the Public-Law Entities Act, gave a direct right to the applicant, as chairperson of the CAA, to collect duties by entering into contractual relations with companies working in civil aviation. Furthermore, the new law, required as a result of the judgment of the Constitutional Court of 10 January 2003, had been passed on 14 August 2003 and had entered into force on 15 September 2003. The applicant had issued Order no. 1 in compliance with that law and had subsequently submitted it to the Ministry of Justice for registration. The Ministry of Justice had registered it on 27 November 2003, approving its retrospective application as of 1 October 2003 under sections 33 ( 4 ) and 54 of the Law on Normative Legal Acts, on the grounds that all the companies covered by the Order had the necessary legal identification numbers and codes. The applicant pointed out that if it had been unlawful to apply the order at issue retrospectively, the Ministry of Justice would have informed the CAA and instructed it to make the necessary amendments, in accordance with the law. The applicant concluded that the actions he had taken in the exercise of his official duties had not been contrary to the judgment of the Constitutional Court in question, or to any other legal provisions applicable at the material time, and thus could not qualify as abuse of power. 3. The applicant ’ s conviction for abuse of power 45. On 8 August 2005 the Tbilisi City Court found the applicant guilty of two of the three episodes of abuse of power which the GPO had accused him of ( see paragraph 27 above), but acquitted him of one. The one he was acquitted of was with respect to the CAA collecting “ an annual registration fee for transport activities” from eight private companies working in civil aviation, including Sakaeronavigatsia and Tbilisi International Airport, between 1 April and 1 October 2003. The court established that the relevant amounts corresponded to debts owed to the CAA by those companies for the period prior to 1 April 2003. 46. As for the other two episodes, the Tbilisi City Court considered that the applicant had unlawfully entered into the contracts of 28 March and 13 August 2003 with Sakaeronavigatsia, Tbilisi International Airport and Air ‑ BP ‑ Georgia, in breach of the Constitutional Court ’ s judgment of 10 January 2003. Thus, between 1 April and 1 October 2003, the CAA had unlawfully received the sums of GEL 425,000 (some EUR 208,000), 180,000 (around EUR 83,000) and 25,000 (some EUR 11,000) respectively, from which the applicant had unlawfully paid his own salary and the salaries of his employees, and had financed the CAA ’ s business trip and management expenses. Furthermore, the applicant was found guilty of unlawfully issuing Order no. 1, to which the applicant had moreover given retrospective effect, which served as the basis for collecting levies between 1 October 2003 and 13 March 2004 from twenty -two companies, amounting to GEL 281,344.23 (some EUR 133,000) which had been spent in the same, unlawful way. 47. The Tbilisi City Court stated that it disagreed with the applicant ’ s argument that the Constitutional Court judgment of 10 January 2003 had given him the right to enter into contracts with the companies concerned and that the CAA would have been unable to continue to operate if those contracts not been entered into. However, the court did not give any reasons to explain its position. 48. As to the audit report prepared by the accountancy expert on the CAA ’ s activities, the Tbilisi City Court restricted itself to noting that the expert in question was from the Ministry of the Interior and that he had confirmed his conclusions when he had been questioned during the trial. The court gave no explanation for why it did not take the expert ’ s statements into consideration. 49. The judgment of 8 August 2005 found the applicant guilty of the crime provided for in Article 332 §§ 1 and 3 (a) of the Criminal Code and sentenced him to five years ’ imprisonment. He was also banned from holding public office for two years. 50. The applicant appealed, stating that the Tbilisi City Court had not established which of the impugned actions had breached the notion of public service requirements, within the meaning of Article 332 § 1 of the Criminal Code, what exactly the criminal offence had consisted of, what had been the reasons for it, and what its objectives and consequences had been. Furthermore, the Tbilisi City Court had not explained how his actions had damaged the interests of twenty -two companies, when none of those companies had expressed any interest in joining the criminal proceedings as civil parties or had ever initiated any separate civil proceedings against the CAA. 51. When questioned by the Tbilisi Court of Appeal, representatives of fourteen of the companies concerned stated that they had incurred no financial damage as a result of having paid the fees for the services provided by the CAA, either on the basis of the relevant contracts or Order no. 1. Moreover, the cost of the amounts paid had not been borne by the companies, since it had been included in the price of airplane tickets sold to the end consumer, who was airline passengers (see also the accountancy expert ’ s report cited at paragraphs 22-26 above ). By a judgment of 30 December 2005 the Tbilisi Court of Appeal acquitted the applicant in respect of the charge relating to the aforementioned fourteen companies. It upheld the judgment of the lower court as to the remaining charges, notably the collection by the CAA of fees for services from the remaining eight companies on the basis of either contracts or Order no. 1. The applicant ’ s prison sentence was amended and set at four years. 52. The applicant appealed on points of law, arguing that his case had been examined superficially and that, amongst other things, the accountancy expert ’ s report of 20 July 2004 (see paragraphs 22- 26 above ) had not been taken into consideration. The applicant complained that in examining the question of the existence of a loss to the aforementioned eight companies, the Court of Appeal had failed to consider the case from the same point of view concerning the other companies, especially Sakaeronavigatsia, which had allegedly incurred the biggest loss. In fact, according to the applicant, the Court of Appeal had completely failed to consider that part of the case or the accountancy expert ’ s view that Sakaeronavigatsia could not have incurred a loss. The applicant concluded that the reasoning given by the lower court to prove his guilt had been manifestly insufficient and arbitrary. 53. On 14 September 2006 the Supreme Court of Georgia dismissed the appeal on points of law by the applicant, stating that by continuing to charge the fees to the various private companies after 1 April 2003 the applicant had misapplied the judgment of the Constitutional Court of 10 January 2003 and had thus committed an abuse of power, infringing the rights of various legal entities and the general legal interests of the State. 54. After serving his sentence in full, the applicant was released on 14 March 2008. C. Content of video recording produced by the applicant 55. In December 2003, well before the applicant had been placed under investigation and arrested, and shortly after the Rose Revolution that led to the resignation of President Shevardnadze (see Georgian Labour Party v. Georgia, no. 9103/04, § § 11-13, ECHR 2008), Mr M. Saakashvili, who did not hold any State office at the time but was campaigning as a candidate to be elected president, addressed representatives of Georgian companies in Tbilisi ’ s sports stadium. He stated that the objectives of the abolition of the old, corrupt and unfair regime had not involved simply replacing one political clan with another. In particular, he promised that nepotism, irrespective of where it came from, whether from representatives of the old or the new regime, would no longer be the rule. Amongst other things, he stated in that regard: “I heard more news on the television yesterday: it would appear that Zurab Ts ..., the chairman of a committee of the former parliament, took his son and had him appointed deputy chairman of the Civil Aviation Authority! It is now 3.35. I will give [the applicant] : either he gets rid of Ts ..., or [the applicant] himself goes to jail! ... It is said that we are instructing the prosecution authorities to arrest officials of the old regime but that this seems like a breach of their human rights! Yes, I confirm, all those who should be arrested will be jailed. They only began to remember human rights when their own interests were threatened ... Where does the money come from [ for a former governor] to hire lawyers to defend himself and ... live in a five ‑ star hotel in Moscow, when one night there costs the same as your pensions several times over ...? Is not your money, Georgia ’ s money, being taken from your pockets? ... “ 56. According to the applicant, the events which came after the speech of Mr Saakashvili, who was elected President of Georgia in January 2004, were as follows: the son of Zurab Ts. immediately resigned as deputy chairman of the CAA, the applicant was placed under investigation in March 2004 on the aforementioned charges and the same Zurab Ts. was re ‑ elected to parliament from Mr Saakashvili ’ s presidential party list during the parliamentary elections of March 2004. | This case concerned the pre-trial detention of the former chairperson of the Civil Aviation Agency and his criminal conviction for abuse of power. The applicant complained in particular that his detention had been unlawful. Moreover, he alleged abusive ulterior motives for the criminal proceedings against him and for his pre-trial detention. |
623 | Doctors and health workers | 2. The applicant was born in 1967 and lives in Kassel. He was represented by Mr B. Hopmann, a lawyer practising in Berlin. 3. The Government were represented by Ms G. Marok-Wachter, Director, of the Office of Justice of the Principality of Liechtenstein. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The events leading to the applicant’s dismissal 5. The applicant is a doctor specialised in general and internal medicine. From 1 June 2013 he was employed as deputy chief physician of the department for internal medicine at the Liechtenstein National Hospital ( Liechtensteinisches Landesspital ), a registered Liechtenstein public law foundation. He worked under a contract of indefinite duration which could be terminated with six months’ notice. His direct superior was Dr H., chief physician of the said department. 6. On 9 September 2014 the applicant did some research in the electronic medical files of the hospital. He found information showing that four patients had died in the hospital following the administration of morphine. He concluded from notes made in these files that Dr H., who had treated these patients, had practised active euthanasia. 7. On the same day the applicant met with the President of the Control Committee of the Liechtenstein Parliament (the “Parliamentary Control Committee”), Mr M., on the latter’s initiative, following several anonymous complaints about deficiencies in quality in the Liechtenstein National Hospital. On that occasion, the applicant voiced suspicions that Dr H. had practised active euthanasia. 8. On 11 September 2014 the applicant, on Mr M.’s advice, lodged a criminal complaint against Dr H. with the Public Prosecutor’s Office which instituted proceedings against Dr H. on suspicion, inter alia, of killing on request and participation in another person’s suicide. 9. On 18 September 2014 the police seized the paper medical files of the four patients concerned at the Liechtenstein National Hospital and questioned Dr H. 10. On 19 September 2014 the applicant, following further research in the hospital’s electronic medical files, informed the Public Prosecutor’s Office that he suspected that Dr H. had practised active euthanasia on six additional patients. He was questioned by the police on the same day. He supported his suspicions by the fact that according to the electronic files, the death of these patients had occurred shortly after the start of the treatment with morphine, that morphine had been given even without an indication that the patients suffered from pain, that the treatment had been called “supportive therapy” or “supportive measures”, and having regard to the medication administered. He stressed that the aim of his statement was to avert damage to patients of the hospital. 11. At the time of the events, the Liechtenstein National Hospital had a body to which irregularities could be reported anonymously via an online form, the Critical Incident Reporting System (CIRS). While initially Dr H. alone had been the person examining and acting upon such reports, this task had been entrusted to a group of three persons (not including Dr H.) since summer 2014 at the latest. It is unclear when this change in responsibilities was communicated within the hospital. The applicant did not contact this body. 12. On 19, 22 and 24 September 2014 the vice-president of the hospital’s foundation board drew up three reports on the request of the foundation board regarding the treatment of the ten patients in question. Having examined the patients’ paper files and having questioned Dr H., he concluded that all patients had been in a palliative situation under the WHO’s standards and that there had not been any mistake regarding the morphine administered. He considered that the applicant had failed to take into account the pain or difficulty in breathing of the patients concerned, which had made necessary the treatment in question. If the applicant had read the patients’ paper files, which alone, as had been known at the time, had contained complete information regarding the patients’ condition and treatment and to which he had had access, he would have realised immediately that his suspicions of active euthanasia were clearly unfounded. 13. On 26 September 2014 the applicant was suspended from office. 14. On 2 October 2014 the applicant made a written statement setting out his position to the National Hospital on the latter’s request. He explained that he had done some research in the electronic files of several patients who had died in the past weeks following an indication by a doctor working in the hospital that recently there had been an unusual rise in deaths of patients in the hospital. In his view, the ten patients concerned had clearly not been treated lege artis. After thorough reflection, he had decided to inform the Public Prosecutor’s Office in order to protect the patients and the hospital and to comply with his own ethical convictions and the provisions of the Physicians’ Act ( Ärztegesetz; see paragraph 36 below). As he was convinced that there had been criminal offences, as he had not expected the matter to be investigated properly within the hospital and in view of the urgency of the situation, he had not contacted an internal body of the hospital prior to lodging a criminal complaint with the Public Prosecutor’s Office. 15. In a report received by the National Hospital on 15 October 2014 a Swiss external medical expert in palliative medicine commissioned by the Hospital, N., having studied the medical paper files of the patients concerned and having heard Dr H., concluded that no active euthanasia had been practised on the ten patients in question. The expert considered that the patients’ palliative treatment had been necessary and justified as they had been at the end of their lives. They had died as a result of their illnesses and not as a result of their treatment. They had been given morphine in order to treat their pain and difficulty in breathing and not to end their lives. The expert noted that some of the morphine doses prescribed – especially those “without upper limit” – may not have been necessary, but such doses had never been administered in practice. 16. On 17 October 2014 the director of the National Hospital dismissed the applicant without notice. He considered that owing to the applicant’s severe fault, the relationship of trust with him had been destroyed irretrievably. He argued that the applicant had failed to raise his allegations of active euthanasia and quality flaws with the hospital’s competent internal bodies prior to raising them externally with the President of the Parliamentary Control Committee and with the Public Prosecutor’s Office. The applicant had been obliged to inform Dr H., or at least the director of the hospital or a member of the foundation board with whom he had a normal relationship, of his allegations. Furthermore, the applicant’s allegations of euthanasia had been considered as clearly unfounded by the external expert commissioned by the hospital. 17. The Liechtenstein newspapers and radio repeatedly reported on the suspicions of active euthanasia at the Liechtenstein National Hospital and the criminal investigations against Dr H. in this respect. The outcome of the criminal investigation proceedings against dr h. and against the applicant 18. The investigating judge in the criminal proceedings against Dr H. had also commissioned an external expert practising in Austria, L. In his report dated 30 October 2014, received by the investigating judge on 11 December 2014, the expert, having regard to the medical paper files of the patients in question, came to the conclusion that Dr H. had not practised active euthanasia. The patients had been given morphine only as necessitated by their palliative situation and this treatment had not caused the patients’ death. Doubts regarding such palliative medical treatment and ethical decisions taken in that context could be excluded by a better documentation of the treatment in the future. 19. On 15 December 2014 the criminal proceedings against Dr H. were discontinued. 20. On 15 December 2016 criminal proceedings instituted against the applicant for having deliberately cast wrong suspicions of a criminal offence on another person by his allegations that Dr H. had practised active euthanasia were equally discontinued. The proceedings before the domestic courtsProceedings before the Regional Court Proceedings before the Regional Court Proceedings before the Regional Court 21. On 28 November 2014 the applicant brought an action against the Liechtenstein National Hospital for payment of some 600,000 Swiss francs (CHF) in compensation for the loss of salary and further pecuniary and non ‑ pecuniary damage. He claimed that his dismissal without notice had been unlawful. There had been no important reason for his dismissal as lodging a criminal complaint against Dr H. had been justified in view of the concrete suspicions of active euthanasia and the gravity of the offence concerned. 22. On 29 August 2017 the Regional Court dismissed the applicant’s action. It found that the applicant’s dismissal without notice had been justified under Article 1173a § 53 (1) and (2) of the Civil Code (see paragraph 35 below). The court considered, in essence, that there had been an important reason for the employing hospital to terminate the employment contract. As the applicant had failed to sufficiently verify his unfounded suspicions of active euthanasia in the patients’ medical paper files and to signal his suspicions within the hospital prior to informing external bodies thereof, the continuation of the employment relationship by the hospital could no longer be expected in good faith. Proceedings before the Court of Appeal 23. On 10 January 2018 the Court of Appeal, allowing an appeal lodged by the applicant, quashed the Regional Court’s judgment. It ordered the defendant hospital to pay the applicant CHF 125,000 in salary arrears and remitted the remainder of the case to the Regional Court for a fresh consideration of the applicant’s compensation claims. The Court of Appeal found that the applicant’s dismissal without notice had not been justified. The disclosure of irregularities to third persons was covered by the right to freedom of expression and could justify a dismissal only if it was coupled with a serious breach of the duty of loyalty. However, there was no such serious breach in the present case. 24. The Court of Appeal argued that the institution of proceedings against Dr H. by the Public Prosecutor’s Office confirmed that the applicant’s suspicions had not been unfounded. In view of the severity of the offence at issue, contacting external bodies such as the Parliamentary Control Committee or the Public Prosecutor’s Office, which were both under a duty of confidentiality, had not been disproportionate. The fact that the applicant had reported directly to the Public Prosecutor’s Office did not raise an issue in this respect. The court further agreed with the applicant that in the circumstances of the case, reporting the issue to Dr H. in the context of the internal mechanism to report irregularities had not been a suitable approach. Proceedings before the Supreme Court 25. On 4 May 2018 the Supreme Court, allowing the defendant hospital’s appeal on points of law, quashed the Court of Appeal’s judgment. It dismissed the applicant’s claim for payment of CHF 125,000 in salary arrears in a partial judgment and remitted the remainder of the case to the Court of Appeal in a partial decision for it to dismiss the applicant’s action in that regard. 26. The Supreme Court considered that the applicant’s dismissal without notice had been lawful. It stressed that the applicant, a senior employee, had only consulted the electronic medical files, which he had known to be incomplete, although he could have consulted the paper files at any moment. If he had done so, he would have recognised immediately that his suspicions were clearly unfounded. He had thus failed to verify his serious and unjustified allegations before disclosing them to third persons and before lodging a criminal complaint. This conduct amounted to a serious breach of trust in relation to his employer which justified his dismissal without notice. Proceedings before the Constitutional Court 27. On 4 June 2018 the applicant lodged a complaint with the Constitutional Court against the partial judgment and partial decision of the Supreme Court. He argued that his dismissal had breached, in particular, his right to freedom of expression under the Constitution and Article 10 of the Convention. Reporting his suspicions of active euthanasia to external bodies had been justified whistle-blowing. 28. On 3 September 2018 the Constitutional Court found that the applicant’s constitutional complaint was admissible as the Supreme Court had taken a final stance on the applicant’s action, but dismissed the complaint on the merits (file no. StGH 2018/74). 29. The right to freedom of expression applied in the relationship between the applicant and the Liechtenstein National Hospital. While the hospital was a State institution, the applicant’s dismissal was not an act of public authority, but was governed by private law. The right to freedom of expression nevertheless applied indirectly in their relationship ( indirekte Drittwirkung ). 30. The Constitutional Court accepted that the applicant regarded himself as a whistle-blower. Having regard to the criteria developed, inter alia, by the European Court of Human Rights in the case of Heinisch v. Germany (no. 28274/08, ECHR 2011 (extracts)) on freedom of expression in the context of whistle-blowing, the Constitutional Court found that the applicant’s right to freedom of expression had not been violated by his dismissal without notice. It recognised that there was a considerable public interest in medical treatment which was in accordance with the state of the art in a public hospital. Moreover, the civil courts had not found that the applicant had acted out of personal motives. 31. The Constitutional Court noted, however, that the applicant had failed to test his suspicions regarding the practice of active euthanasia arising from the electronic medical files by verifying the paper files of the patients concerned. Had he done so, he would have realised immediately that his suspicions – which could be considered comprehensible having regard to the electronic files alone – were clearly unfounded. In the light of the gravity of the allegations and the consequences for all concerned by them in the event that these allegations became public, the applicant had been obliged to proceed to such verification, even more as he had known that the electronic files had been incomplete. The applicant had therefore acted irresponsibly. Therefore, his right to freedom of expression had not been breached. 32. The Constitutional Court, just as the Supreme Court, could thus leave open whether the applicant, prior to raising his allegations externally, should have attempted to raise them internally, notably with the director of the hospital. 33. The judgment was served on the applicant’s counsel on 7 November 2018. | This case concerned a doctor who raised suspicions that euthanasia had been taking place in his hospital. In doing so, he went outside the hospital complaints structure and lodged a criminal complaint. The affair attracted significant media attention. The applicant complained that his dismissal without notice from his post for lodging a criminal complaint had breached his rights. |
754 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1955 and lives in Amsterdam. 7. In 1967 her parents built a holiday home without planning permission on land situated in Zutendaal ( Belgium ). According to the applicant, however, the house was built in 1962. 8. Following her mother ’ s death, a deed of partition was drawn up on 6 January 1986 between the applicant (who, inheriting from her mother, became the remainderman of half of the property) and her father. That deed, which specifically mentions the existence of the building, was registered with the Mortgage Registrar at the Ministry of Finance and a registration fee was paid. 9. The applicant ’ s father died on 21 August 1993 and she became the full and sole owner of the entire property. On inheriting the property, the applicant specifically declared in the notarised deed of distribution that the plot was a holiday home. The deeds were registered with the local authorities and the applicant paid the inheritance tax. From then on, the applicant paid an annual property tax ( précompte immobilier ) and second ‑ residence tax on the holiday home. According to the applicant, it went without saying that her father had also paid the relevant taxes on the house. 10. The applicant carried out renovations on the house costing 50, 000 euros (EUR) and had the trees on the adjoining land felled. 11. In 1994 the partly government-controlled Flemish water - supply company carried out works to connect the house to the drainage and water - supply systems. There was no reaction from the local authorities at that time. 12. On 27 January 1994 a report was drawn up by a police officer who noted that trees had been felled on the property in breach of Article 81, paragraph 3, of the Flemish forestry decree of 13 June 1990. 13. On 22 February 1994 a report was drawn up by a police officer who noted that the holiday home had been erected in 1967 without planning permission and that it was located in a forested area in which no such permission could be issued. The report also noted that the exterior and roof of the house had been renovated. 14. On 8 August 1994 the applicant voluntarily reported to the police to make a statement, which was placed on record. 15. By a decision of 11 October 1994, the municipal council ( collège des bourgmestre et échevins ) asked the planning inspector to issue an opinion on any remedial action to be taken. By a letter of 19 June 1995, the planning inspector applied to the public prosecutor for the site to be restored to its original condition. 16. Two reports dated 26 March 1996 and 8 January 1997 mention that the police had sought to question the applicant again but had found it difficult to contact her and that she was temporarily unable to travel for health reasons. 17. At the request of the Tongeren public prosecutor, the applicant was questioned in Amsterdam on 25 March 1997 by a Dutch police officer. A report was drawn up on that occasion. 18. On 18 May 1998 the public prosecutor asked the local police to confirm whether or not the building in issue still existed. 19. A report of 16 June 1998 established that the situation had not changed. 20. The Tongeren public prosecutor issued the applicant with a summons to appear in court on 12 May 1999, firstly, for having maintained a holiday home, erected without planning permission, between 27 January 1994 and 28 April 1999 and, secondly, for having felled approximately fifty pine trees in breach of the above- mentioned Flemish forestry decree. According to the applicant, there were at least four other houses built without permission in the same forested areas, which had neither been the subject of reports establishing that an offence had been committed nor of prosecution. 21. On 25 June 1999 the Tongeren Criminal Court issued an interlocutory judgment in absentia, since the applicant had not been duly summoned. 22. On 6 January 2000 she was once again summoned to appear before the Tongeren Criminal Court. 23. On 26 May 2000 that court acquitted the applicant of the above- mentioned charges. It held in particular that after twenty-seven years the applicant could legitimately assume, as could any reasonably prudent citizen, that maintaining the building in issue would no longer constitute an offence. The court further held that it did not have jurisdiction to deal with the planning inspector ’ s application to have the land restored to its original condition. The prosecutor appealed. 24. By a judgment of 6 February 2002, the Antwerp Court of Appeal upheld the judgment in so far as the applicant was acquitted of the charge of felling the trees. However, it found her guilty of maintaining a building erected without planning permission, pursuant to Article 146 of the town and country planning decree of 18 May 1999, and changed the impugned period to between 22 August 1993 and 28 April 1999, having regard to the date on which the applicant ’ s father had died. 25. In her submissions the applicant had alleged a violation of the reasonable - time requirement under Article 6 § 1 of the Convention, considering that the criminal proceedings had been conducted beyond that time - limit and that after such a long period there had been an interference with her rights of defence, in particular since it had been impossible for her to prove that the house had been built before 1962. She had also criticised the failure of the authorities to act, pointing out that her parents had paid the second - residence tax, that a notarised deed mentioning the building had been registered by the authorities, that she had paid inheritance tax on property that included the building, that extensive infrastructure works had been carried out by a partly government-controlled company with no reaction on the part of the local authorities and that for many years no legal action had been taken. She had also alleged a violation of the principle of protection of the legitimate expectations of citizens and complained of discrimination in comparison with neighbouring property owners. 26. The Court of Appeal found that a deed of partition drawn up in 1986 and signed by the applicant established that the holiday home had been built in 1967 and concurred furthermore with the findings contained in the report drawn up on 22 February 1994. The Court of Appeal considered that the applicant knew or should have known that the building had been erected without planning permission. As a reasonable and prudent citizen, and even taking account of the attitude of the authorities as she had described it, the applicant could not have inferred that the situation was totally legal and that no proceedings would be brought against her. The Court of Appeal found that the applicant had acted most imprudently by proceeding to renovate the premises after the death of her father. It also found that the fact that four other dwellings had also been erected in the same forested area without planning permission and without their owners being prosecuted did not amount to discrimination. 27. With regard, more particularly, to compliance with the reasonable - time requirement, the Court of Appeal found that the length of the criminal proceedings had been unreasonable but that this did not alter the fact that the offence had been established and that the applicant had, since 1994, been liable to prosecution. Considering, firstly, that overrunning the reasonable time did not cause the proceedings to become time-barred and, secondly, that account should be taken of the specific circumstances of the case, and in particular of the fact that the applicant had no criminal record, the Court of Appeal merely pronounced a finding of guilt against the applicant. 28. Referring to the planning inspector ’ s application lodged pursuant to Articles 149 et seq. of the above- mentioned decree of 18 May 1999, which it deemed to be reasonable, the Court of Appeal ordered the applicant to restore the site to its former condition and to demolish the building within one year of the judgment becoming final, with a fine of EUR 1 25 per day ’ s delay. It also authorised the municipal council or the planning inspector to enforce the order at the expense of the applicant in the event of non-compliance with the demolition order. The applicant was also ordered to pay the costs and expenses of the proceedings. 29. The applicant appealed on points of law. 30. By a judgment of 7 January 2003, the Court of Cassation dismissed the appeal. 31. On grounds based on a violation of Article 6 § 1 of the Convention, the applicant claimed that the length of the criminal proceedings had been unreasonable and it could therefore be concluded that they were time-barred. 32. The Court of Cassation held that exceeding a reasonable time did not cause criminal proceedings to become time-barred and that, consequently, the Court of Appeal had not been bound to base its decision on that point. 33. The applicant also submitted that, bearing in mind that the Court of Appeal had merely pronounced a finding of guilt against her, she could not be bound to restore the site to its original condition or to pay the costs of the proceedings. 34. The Court of Cassation responded that restoration of the site to its original condition did not constitute a penalty but a civil measure, in the same way as the payment of the full costs of the proceedings at the fixed rate, and that consequently these measures were not inconsistent with a simple finding of guilt. 35. The court also dismissed the ground based on Article 8 of the Convention and Article 1 of Protocol No. 1 whereby the applicant alleged that after a thirty- year period during which they had tolerated the situation, thus creating an apparently lawful situation, the authorities could no longer rely on the public interest to justify interference with the peaceful enjoyment of her property rights and respect for her private life. 36. The Court of Cassation found that the Court of Appeal had held, in its unfettered discretion, that the applicant had been most imprudent in maintaining the house without planning permission, that the measure sought by the planning inspector was reasonable and that, consequently, that ground of appeal was inadmissible. 37. The house was demolished in July 2004 pursuant to an enforcement order. According to an expert, the value of the house at the material time was EUR 62, 635. The demolition costs amounted to EUR 3, 025. | This case related to the demolition, pursuant to an enforcement order, of a holiday home, built in 1967 by the applicant’s parents without a building permit. In 1994 the police had drawn up two reports, one concerning the felling of trees on the property in violation of forestry regulations, and one for building a house without planning permission in a woodland area where no planning permission could be granted. The applicant had been ordered to restore the site to its original state. She complained in particular of a violation of her property rights. |
1,091 | Pensions | I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1927 and lives in Nicosia. 11. From the establishment of the Republic of Cyprus in 1960 and up to his dismissal from the public service, the applicant worked as Governor of the Department of Co - operative Development of the Public Service in Nicosia. On 28 July 1982 the Public Service Commission instituted disciplinary proceedings against him and decided to dismiss him retrospectively by reason of the fact that on 8 April 1981 he had been found guilty by the Nicosia District Court of stealing, breach of trust and abuse of authority. He had been sentenced to eighteen months'imprisonment. His appeal against both conviction and sentence had been dismissed by the Supreme Court on 16 October 1981. 12. The Public Service Commission held that the applicant had managed the resources of the above-mentioned department as if it were his private property and spent them for purposes other than those of the department. The disciplinary sanction of dismissal also resulted in the forfeiture of the applicant's retirement benefits, including his pension, in accordance with section 79(7) of the Public Service Law ( no. 33/67 ), from the date of his conviction by the District Court. In Cyprus, pensions are part of the overall employment contract offered to public servants. The pension scheme is non-contributory. 13. On 8 October 1982 the applicant filed an application with the Supreme Court requesting that the decision to dismiss him from the public service be declared null and void. The applicant's main argument was that the decision had been taken in excess or abuse of power in that the sanction of dismissal, with the consequent forfeiture of retirement benefits, was disproportionate to the gravity of the offence. He also contended that the forfeiture was contrary to Article 12 § 2 of the Constitution, which guarantees the right not to be tried or punished twice. He alleged that the forfeiture of his pension rights and the sentence of imprisonment amounted to a double punishment for the same act. 14. By a judgment delivered on 12 June 1991, the Supreme Court rejected the applicant's application and confirmed the Public Service Commission's decision. In particular, the Supreme Court held: “It has been established by case- law that the Supreme Court does not have the authority to intervene on the subject of the sanction imposed unless it is evident that the disciplinary body has exceeded the limits of its discretionary power. The Supreme Court's powers in such issues bear no resemblance to its powers while exercising its jurisdiction over the appeal of the district courts'judgments, on which it has the authority to intervene when the decision on the sentence is either incorrect from the outset, evidently excessive or insufficient. The assessment of the severity of such a disciplinary sanction is outside the limits of this Court's authority (see, among others, Cristofides v. CY.T. A. , (1979) 3 C.L.R. 99, and Papacleovoulou v. the Republic, (1982) 3 C.L.R. 187, 196-197). It has been repeatedly established ... in a series of judgments that an administrative court, during the judgment of an appeal against the imposition of a disciplinary sanction, does not as a rule have the authority to intervene in the essential judgment and assessment of the facts by the competent body. ... Section 79(1) of Law no 33/67 enumerates a limited number of disciplinary sanctions that can be imposed under the provisions of the same Law. These sanctions include the sanction of dismissal, which, according to section 79(7) of Law no 33/67, results in the loss of all the entitlements upon discharge. Having carefully examined the case file, as well as the relevant verbatim record, where the ratio decidendi and the statement of reasons are included in detail, I judge that the Public Service Commission imposed the sanction of dismissal on the applicant justly and lawfully, without exceeding the limits of its discretionary power. The Public Service Commission, as it is explicitly reported in the relevant transcript (see Appendix 8 of the Plea) took into account the applicant's various mitigating circumstances before reaching a decision. The Public Service Commission's discretionary power was not related to pension issues, but only to the matter of the sanction. The sanction imposed on the applicant entailed, according to the same Law, the forfeiture of all his entitlements upon discharge. The judgment in Makrides v. the Republic, 2 R.S.C.C. 8, which the applicant's lawyer cited in order to support his submission that the provisions concerning the deprivation of an employee's pension rights are unconstitutional with respect to Article 23 §§ 1 and 2 of the Constitution, does not apply to the present case. The submission by the applicant's lawyer that there is a contradiction with Article 28 of the Constitution remains unproved .” 15. The Supreme Court stated that it could review neither the severity of the sanction imposed by a disciplinary body, save if the latter had exceeded the limits of its margin of appreciation, nor the manner in which the body had assessed the facts of the case. It held that the discretion of the Public Service Commission only concerned the nature of the sanction, the loss of retirement benefits being the normal consequence of the particular sanction imposed by the commission. 16. On 18 July 1991 the applicant appealed on points of law to the Supreme Court sitting as a court of appeal. Five grounds were included in the notice of appeal. The fifth ground challenged the finding of the Supreme Court sitting as a first - instance court that the loss of retirement benefits was not contrary to Article 23 §§ 1 and 2 of the Constitution. 17. On 6 December 1996 the applicant filed an application for amendment of his grounds of appeal. The Supreme Court granted the application on 17 January 1997. Amended grounds 3 to 5 read as follows: “ ( 3) The finding of the first-instance court that the sanction that was imposed on the applicant by the Public Service Commission was not excessively onerous and disproportionate to the gravity of the offence committed and/or that the Public Service Commission took fully into account the mitigating circumstances during the consideration of the sanction and/or did not exercise its discretionary power in breach of procedure in determining the sanction is erroneous. According to Article 12 § 3 of the Constitution, the law cannot provide for a penalty that is disproportionate to the gravity of the offence. The above constitutional requirement introduces in Cyprus the principle of proportionality, according to which there must be a connection (reasonable relation) between the measure taken and the intended purpose; the measure is proportionate only if it is necessary in relation to the facts of the case. Despite the fact that during the assessment of the penalty the criminal court as well as the administrative body took into account and accepted a series of mitigating circumstances, and in particular that the applicant did not obtain any material gain, the sanction which was finally imposed on him is the heaviest sanction provided by law. This is a sufficiently serious breach of the principle of proportionality, which was introduced by Article 12 § 3 of the Constitution and is applied in Cypriot jurisprudence and the practice of law itself, particularly in the interpretation of Article 23 of the Constitution. It also constitutes an act beyond the extreme limits that define the framework of actions of the administration when exercising its discretionary power. ( 4) The finding of the court that the Public Service Commission imposed the sanction of dismissal on the applicant correctly and lawfully and without exceeding the limits of its discretion is erroneous. The principle of a sanction that is not disproportionate to the gravity of the offence and the principle of proportionality during the assessment of the sanction in administrative proceedings certainly define the framework and/or limits of the administrative authority of the administrative body. The fact that the administrative body adopted and/or took into account the serious mitigating circumstances in favour of the applicant during the assessment of the sanction, but did not avoid imposing the heaviest sanction provided for by law, is an act that lies beyond the extreme limits of the exercise of its discretionary power. ( 5) The finding of the first - instance court that the loss of the applicant's pension rights is not contrary to Article 23 §§ 1 and 2 of the Constitution is erroneous.” 18. In his opening address on 14 September 1998, the applicant's lawyer, Mr Efstathiou, stated that he would only deal with the third and fourth grounds of the appeal. In particular, according to the verbatim record of the hearing on that date, the following exchange took place between the applicant's lawyer and the Supreme Court: “ Mr Efstathiou : ... I will be very brief. Essentially, I will only deal with grounds 3 and 4 of the appeal. Judge Chrysostomis : Do you withdraw the others? Mr Efstathiou : Indeed, I do. The Court : The remaining grounds of appeal are dismissed and we shall hear your position on grounds 3 and 4. Mr Efstathiou : I will not deal with these grounds, because ground 1 is badly worded, while ground 2 is covered by grounds 3 and 4. ... The penalties that can be imposed by the court are listed in section 79(1) of Law no. 33/67. These penalties go from (a) to ( j ), which means that ten different disciplinary sanctions can be imposed according to the gravity of the offence, each one more severe than the previous one, while the maximum sanction is dismissal. Section 79(7) states that dismissal entails the loss of all entitlements upon discharge. I shall deal with the amended grounds 3 and 4, and thus ground 5 emanating from them. Judge Chrysostomis : Will you deal with grounds 3 and 4 as a whole? Mr Efstathiou : As a whole and the consequences thereof. ... We cannot, therefore, and with all due respect to the court that delivered the judgment, accept that this Court cannot, in fact, intervene in the decisions of the Public Service Commission, when these deal with issues of sanction. It would, indeed, be extraordinary if this Court were competent to address the decisions of criminal courts, but not competent to address and examine whether the commission, which is a disciplinary court, exceeded the limits of its discretionary power. Not only would this be completely alien to the organisation and construction of the jurisprudence, it would also be extraordinary, because a court could intervene – and I am not saying that it would intervene on appeal, no it is not that. Given that the Court intervenes, why shouldn't it – even more so – intervene there? ... Judge Chrysostomis : On the issue of disciplinary sanctions. Mr Efstathiou : ... When you examine the case, I plead with you to take into account the fact that the dismissal of the appellant resulted in forfeiture of his pension rights. This means that the consequence of his dismissal entailed the additional misfortune of the loss of his pension rights, which were a result of twenty years of contributions to the State. This service of twenty years and more, I submit with respect, creates for the appellant parallel rights to receive a pension, autonomous rights which are based on a legal framework that is independent and autonomous in comparison to other legislative regulations. The creation of public servants'pension funds is regulated separately and is created through deducting part of their emoluments. Thus, by imposing this sanction on the appellant, other parallel and autonomous rights were infringed, which should not escape the attention of the Supreme Court of Cyprus. These are acquired rights to which an employee is entitled to for every month of offering his service to the State, in parallel with the right to acquire the payment of a salary. For every month of work, he receives his salary and also has another entitlement, which is preserved in order to be given to him when he is discharged, and which at the same time constitutes an autonomous right. This is the right every employee has to a pension as part of his emoluments. He has another benefit, secret, hidden, but'activated'from the day he leaves the service. Consequently, the imposed sanction of dismissal has the following direct consequences, which are all contrary to constitutional rights and the fundamental principles of law and jurisprudence. [ Firstly, it ] renders the sanction particularly onerous and reinforces the argument that it was disproportionate to the gravity of the offence, which apart from constituting an abuse of discretionary power, violates Article 12 § 3 of the Constitution, which states that a penalty shall not be disproportionate to the gravity of the offence. Secondly, it denies the applicant's right of property by which he is entitled to a pension for which he was has contributed part of his salary. The new Law no. 1/90 contains a revised section 79, which represents a somewhat incomplete regulation of this issue. Namely, when a public servant is dismissed, a pension is paid to his dependants as though he had died. This is unpleasant, but represents a solution that was found and agreed upon at the time. ... ” Judgment was reserved. 19. In the meantime, one of the members of the bench hearing the case was appointed Minister of Defence, and the Supreme Court decided to reopen the proceedings. The appeal was heard for a second time on 9 July 1999. The verbatim record of the hearing reads as follows: “ Mr Efstathiou : Your Honours, the facts of this case are, in simple terms, as follows: ... I will deal with grounds 3 and 4 of the appeal and grounds 5 and 3 emanating from them. I will deal with all of them ... Ms Koursoumba : In the previous court session, grounds 1, 2 and 5 were withdrawn. Mr Efstathiou : Indeed, as I have said. ... Judge Konstantinidis : For the sake of order, I see in the transcript of the previous hearing that you have withdrawn all the grounds of appeal, apart from 3 and 4. Mr Efstathiou : Indeed. ... In closing, we conclude that the appellant's twenty and more years of service have brought about pension rights – independent rights that are based on a legal structure which is independent and autonomous compared to other legislative regulations. Everyone contributes to the creation of the capital of the pension; the government also contributes; it is part of the employee's emolument. This sanction ... according to section 79( 7 ) [ entails the loss of all retirement benefits]. Therefore, the imposition of the sanction of dismissal, the direct consequence of which is the forfeiture of pension rights, has legal consequences that violate constitutional principles, essential rights and the case-law. The sanction is therefore particularly onerous. Judge Konstantinidis : You also clarified it last time, but we must bring up the subject once more. We must realise that there is no issue of constitutionality of the law itself but that the subject is being discussed within the framework of the position you are advocating, that it was not reasonably permissible to impose such a sanction. Mr Efstathiou : Because this is also a consequence of that. It is so. The imposition of the sanction exceeded the limits of the exercise of discretionary power and violated the constitutional principle of Article 12 § 3 that the penalty should not be disproportionate to the gravity of the offence. Thus, the principles of law, the principles of proportionality, the principles of not exceeding the extreme limits of discretionary power and of respect for the appellant's vested rights have been violated. I have told you all this before.” 20. Judgment was delivered on 20 July 1999, dismissing the appeal. The Supreme Court held as follows: “ ... The first-instance court held that the sanction of dismissal imposed on the appellant by the Public Service Commission was just and lawful and within the bounds of its discretion. Also, it stated that the commission had considered the various mitigating circumstances in favour of the applicant before it reached a decision, and that its discretionary power did not concern the issue of the appellant's pension, but only the matter of the sanction. The forfeiture of the appellant's entitlements following discharge was, under the same Law, a consequence of the sanction imposed on him. In the end, the appeal was limited to two grounds, which are stated in the amended notice of appeal and which are the following: ' (1) The court's finding that the sanction imposed on the appellant by the Public Service Commission was not excessively onerous and disproportionate to the gravity of the offence and/or that the Public Service Commission did take the mitigating circumstances into account in their consideration of the sanction and/or that it did not exercise its discretionary power in breach of procedure in determining the sanction is erroneous. (2) The court's finding that the sanction of dismissal imposed on the appellant by the Public Service Commission was just and lawful and within the limits of its discretionary power is erroneous.' The position of the appellant's lawyer is that the principles of law relevant to criminal proceedings are implemented analogously in disciplinary proceedings. Whilst the commission accepted the existence of mitigating circumstances in the case under examination, such as the appellant's long service in the Cypriot struggle for liberation and the Co-operative Movement, and the fact that there was no material gain for him personally, it nevertheless imposed the heaviest sanction on him, rather than a sanction of, for example, compulsory retirement, which would also have resulted in his removal from service. The appellant stated that the sanction of dismissal was excessively onerous and disproportionate to the gravity of the offence and claimed that the principle of proportionality had been infringed, and thus argued that the commission had exceeded the extreme limits of its margin of discretion. In clarifying this position, he stated that he did not request the Court to change the case-law and interfere with the sanction imposed, but to declare the decision null and void on the ground that it exceeded the extreme limits of the commission's margin of discretion. The respondent's lawyer contended that the judgment of the first-instance court was just and challenged the claims of the appellant's lawyer by arguing that the Supreme Court does not have the authority to interfere in matters of sanction, unless the disciplinary body had clearly exceeded the extreme limits of its margin of discretion. She also stated that the assessment of the facts and the severity of the sanction were beyond the jurisdiction of the Supreme Court. We concur with the opening address of the respondent's lawyer. In fact, it has been established, under Article 146 of the Constitution, that the Administrative Court is not competent, amongst other things, to determine the severity of a disciplinary sanction. ... The first-instance court, on examining the issue of the discretionary power of the commission, stated the following on page 9 of its judgment: ' Having carefully examined the case file, as well as the relevant verbatim record, where the ratio decidendi and the statement of reasons are included in detail, I judge that the Public Service Commission imposed the sanction of dismissal on the applicant justly and lawfully, without exceeding the limits of its discretionary power. The Public Service Commission, as it is explicitly reported in the relevant transcript (see Appendix 8 of the Plea) took into account the applicant's various mitigating circumstances before reaching a decision. The Public Service Commission's discretionary power was not related to pension issues, but only to the matter of the sanction. The sanction imposed on the applicant entailed, according to the same Law, the forfeiture of all his entitlements upon discharge.' This conclusion of the first-instance court is correct. The commission chose to impose the severest sanction. This decision was within its jurisdiction. It has not been demonstrated that the commission did not act within the extreme limits of its margin of discretion, either due to the fact that it acted irrationally or due to the fact that it acted in breach of the principles of good administration, the latter including the principle of proportionality, on which the appellant's lawyer has essentially based his case. The fact that the Public Service Commission imposed the severest sanction provided for by the relevant law even though it had established the existence of mitigating circumstances does not demonstrate that it did not act within the extreme limits of its margin of discretion. Evidently, as shown by its decision, it deemed that, despite the existence of mitigating circumstances, the seriousness and the effects of the offence were such that it was justified in imposing the severest sanction provided for by law. This follows from the commission's decision, in which, while highlighting the seriousness of the offences, it also referred to parts of the decision of the criminal court. Below is a quote from the Public Service Commission's decision: ' The Commission has no other choice but to consider the offences, on the grounds of which the public servant in question was sentenced to prison, as being of the gravest nature. As the judge who tried the case aptly said: “ The one and only aim of his actions was to promote himself as a person who could easily solve all of the problems on the island due to the financial strength of the Co-operative Movement, which he claimed to have founded himself. I should, at this point, underline the fact that he was managing the resources of the Mutual Fund as though they were his private property. However, he had no right to use the Fund's resources for purposes other than those for which the Co-operative Institutions had entrusted him with significant sums of money. His bad faith is also evident, amongst other things, in the fact that he took great care to conceal the source of the funds whenever he made payments for purposes other than those for which he had been entrusted with the money. He viewed the Fund an inexhaustible source of resources that allowed him to be popular with those in positions of power as well as his friends. The fact that large sums of money were given away to charities does not exonerate the defendant from responsibility for his actions. Philanthropic acts using funds provided by others do not constitute charity at all, but are merely acts of exploitation and self-promotion. ”' Following this and prior to reaching a decision on the sanction to be imposed, the commission also stated the following: ' A high-ranking official who shows such disregard for his responsibilities and duties as in the present case and who, additionally, so openly violates the law and /or the regulations of service in order to promote himself as a benefactor of society places himself out of the public service.' For all the above reasons, the appeal is dismissed with all expenses to be paid by the appellant.” | The applicant worked for the Nicosia Public Service, as Governor of the Department of Co-operative Development, from the time the Republic of Cyprus was established in 1960 until his dismissal. In July 1982 the Public Service Commission brought disciplinary proceedings against him and decided to dismiss him retrospectively on the ground that in April 1981 he was found guilty by Nicosia District Court of theft, breach of trust and abuse of authority. He was sentenced to 18 months’ imprisonment. The applicant’s appeal against both conviction and sentence was dismissed by the Supreme Court in October 1981. The Public Service Commission held that the applicant had managed the Department as if its resources were his private property. The disciplinary sentence of dismissal also resulted in the forfeiture of the applicant’s retirement benefits, including his pension. He appealed unsuccessfully. Before the Court, the applicant complained, in particular, about his dismissal and the consequent forfeiture of his pension rights. |
1,059 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 9. Under the General Tax Code as worded until 31 December 1978 the applicant company was liable to value-added tax (VAT) on its commercial activity. It paid a total of 291,816 French francs (FRF) in VAT on its 1978 transactions. 10. Article 13-B-a of the Sixth Directive of the Council of the European Communities dated 17 May 1977 granted an exemption from VAT for “insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents”. That provision was to come into force on 1 January 1978. 11. On 30 June 1978 the Ninth Directive of the Council of the European Communities dated 26 June 1978 was notified to the French State. It granted France an extension of time – until 1 January 1979 – in which to implement the provisions of Article 13-B-a of the Sixth Directive of 1977. Since such directives have no retroactive effect, the Sixth Directive ought nonetheless to have been applied from 1 January to 30 June 1978. 12. Relying on the Sixth Directive, the applicant company sought reimbursement of the VAT it had paid for the period from 1 January to 31 December 1978, which it considered had not been due as the Ninth Directive had no retroactive effect. It also brought an action in damages against the State for failing to bring French law into line with the Sixth Directive within the prescribed period, thereby causing it to sustain damage equal to the amount of the VAT paid. It claimed reimbursement of the VAT paid or, failing that, the amount attributable to the period from 1 January 1978 to the date the Sixth Directive had come into force. 13. The Paris Administrative Court dismissed its claims in a judgment of 8 July 1982. It held, inter alia, that it was clear from the Treaty of the European Communities that while directives placed an obligation on States to achieve a particular result, the choice of the appropriate means of implementing a directive in domestic law lay within the sole discretion of the national authorities, such that individuals and private bodies could not rely directly on a directive to defeat a provision of domestic law. 14. On 10 June 1982 a claim by another firm of insurance brokers, S.A. Revert et Badelon, for the reimbursement of VAT paid on its transactions in 1978 was dismissed by the Paris Administrative Court for the same reasons. 15. In a further development, the authorities directed in an administrative circular issued on 2 January 1986 : “... no further action shall be taken to collect sums remaining due at the date of publication of this circular from insurance brokers who have failed to charge value-added tax on their transactions between 1 January and 30 June 1978 and have received supplementary tax assessments as a result.” 16. In a judgment of 19 March 1986 the Conseil d'Etat dismissed an appeal by the applicant company. It held that individuals and private bodies were not entitled to rely on the provisions of a European directive that had yet to be transposed into domestic law and declared the action in damages inadmissible, as the applicant company had omitted to apply in the first instance to the tax authorities. The main points in its judgment were as follows. 17. As regards the first head of claim: “Article 189 of the Treaty Establishing the European Community of 25 March 1957 makes it clear that, while Council directives are binding upon each member State 'as to the result to be achieved' and while in order to achieve the prescribed results the national authorities are required to adapt the legislation of the member States to comply with the directives addressed to them, it is solely for those authorities to decide how to give effect to the directives in domestic law. Thus, regardless of any instructions they may contain for the member States, directives cannot be pleaded in aid of tax appeals by nationals of those States. It is common ground that appropriate measures to implement the aforementioned Sixth Directive in domestic law had yet to be taken at the time of the relevant reference period for taxation purposes. In these circumstances, the said Directive, which, contrary to what was submitted by the appellant company, does not constitute a regulation within the meaning of the aforementioned Treaty, has in any event no bearing on the application of the preceding statutory provisions, in particular, Article 256 of the General Tax Code ...” 18. As regards the second head of claim: “The Administrative Court did not rule on the claim made in the alternative during the course of the proceedings by the company for compensation in the sum of FRF 291,816. That part of the impugned judgment is therefore defective procedurally and must be quashed. In the present circumstances, an immediate examination and determination of the claim which the court below omitted to decide is called for. By virtue of the provisions of Article R.89 of the Administrative Courts Code and Article 1 of the decree of 11 January 1965, proceedings may only be brought in the administrative courts by way of an appeal against a decision. S.A. Jacques Dangeville has not produced any decision that shows that the administrative authority refused to pay it the claimed compensation of FRF 291,816; it has not even produced a request to the authority for that amount. Accordingly, in the absence of a prior decision, its claim to compensation is inadmissible ...” 19. As the second claim had been dismissed on procedural grounds owing to the applicant company's failure to apply in the first instance to the tax authorities, the applicant company made a further claim for reparation, this time after following the prescribed procedure. To that end, it had sent the Minister of the Budget a claim for reparation comprising two limbs on 16 March 1987. In the first, it alleged that the State was at fault for failing to transpose the Sixth Directive into domestic law within the prescribed period and for continuing to apply a provision of French law that no longer complied with Community law. In the second, it argued that the State was strictly liable for failing to maintain an equal distribution of public burdens following the issue of the circular of 2 January 1986. 20. The claim was rejected by the Minister. An appeal by the applicant company to the Paris Administrative Court was dismissed on 23 May 1989. 21. In a judgment of 1 July 1992 the Paris Administrative Court of Appeal, sitting as a full court, quashed part of the judgment of the Paris Administrative Court. It held that the State had been at fault and ordered it to pay the applicant company compensation for its loss in the sum of FRF 129,845, being the amount of VAT overpaid, together with compound statutory interest. 22. The main points made by the Administrative Court of Appeal in its judgment were as follows: “The principle of State liability: Under the provisions of the Treaty establishing the European Economic Community, and in particular Article 5 thereof, the French State is required to take all appropriate measures to ensure fulfilment of its obligations under the Treaty. These include an obligation to nullify all the illegal consequences of a violation of Community law either directly or, in default, by providing effective reparation for the resulting damage. It follows that the fact that a taxpayer which alleges that it has been taxed on the basis of a statutory provision that is incompatible with the objectives of a Community directive has first referred the issue of taxation to the tax court, which refused to accept that such incompatibility could serve as a cause of action, cannot by itself render inadmissible a claim made by the taxpayer on the basis of the obligations arising under the aforementioned Treaty for reparation for the damage it has sustained as a result of a failure to transpose the objectives of the directive into domestic law. By Article 13-B-a of the Sixth Directive of the Council of the European Economic Communities dated 17 May 1977 the legislation of member States was required from 1 January 1978 onwards to exempt from value-added tax insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents. Although the Ninth Directive of 26 June 1978, which was notified to the French State on 30 June 1978, granted France an extension of time – until 1 January 1979 – in which to transpose the provisions of the Sixth Directive, it is construed by the Court of Justice of the European Economic Communities as having no retroactive effect. Thus, the provisions of Article 256 of the General Tax Code as worded prior to 1 January 1979 requiring payment of value-added tax on insurance broking activities of the type carried on by the Jacques Dangeville company were for the period from 1 January to 30 June 1978 incompatible with the objectives set by the Sixth Directive. Accordingly, contrary to the Administrative Court 's decision, the applicant company's claim that the State is liable for the situation that has thus arisen and should be ordered to make good the loss it has sustained as a result of the illegal situation brought about by its being required to pay value-added tax for the above-mentioned period is well-founded. Damage: In view of the fact that insurance brokers are remunerated on the basis of a percentage calculated by the insurers of the premiums paid by the latter's customers, the value-added tax paid by the Jacques Dangeville company was not passed on to their customers or invoiced. Thus, the damage for which the company is entitled to claim reparation is equal to the amount of the value-added tax it paid for the period from 1 January to 30 June 1978 and comes to FRF 129,845.86.” 23. The tax authorities appealed to the Conseil d'Etat. 24. In its pleading lodged on 23 May 1995 the applicant company set out the following ground of defence: “... in the instant case the rule that taxpayers should bear the tax burden equally has been contravened by the introduction of measures treating people in the same position differently, since a circular dated 2 January 1986 purported to rule that insurance brokers who had not paid VAT on their transactions between 1 January 1978 and 30 June 1978 and had received supplementary tax assessments as a result would no longer be required to pay the sums they continued to owe on that account at the date the circular was published. This is a particularly clear breach of the rule that public liabilities must be borne equally. It is also unjust, as it resulted in discrimination between persons liable to VAT, with those who have paid the tax being adversely affected and those who refrained from doing so deriving a benefit.” 25. By a judgment of 30 October 1996 the Conseil d'Etat, sitting as a full court, quashed that judgment and dismissed all the applicant company's claims. It held that the applicant company was not entitled to seek through an action in damages a remedy it had been refused in tax proceedings in a decision that gave rise to an estoppel by record, namely the judgment of 26 February 1986. 26. The essence of the Conseil d'Etat 's decision was as follows: “The documents in the file submitted to the Paris Administrative Court of Appeal show that by a decision of 19 March 1986 the Conseil d'Etat, acting in its judicial capacity, dismissed a claim by S.A. Jacques Dangeville seeking reimbursement of value-added tax it had paid for the period from 1 January to 31 December 1978, inter alia, on the ground that its liability to that tax had arisen from the application of statutory provisions that were incompatible with the objectives of the Sixth Directive of the Council of the European Communities of 17 May 1977. The claim by S.A. Jacques Dangeville which the Administrative Court of Appeal examined in the impugned judgment was for payment of 'compensation' in an amount equal to the amount of value-added tax that had thus been paid, by way of reparation for the 'damage' which that tax liability had caused the company to sustain, on the ground that that damage was attributable to the French State's delay in transposing the objectives of the Directive into domestic law. It follows that, as submitted by the Minister of the Budget, the Paris Administrative Court of Appeal erred in law in holding that the fact that the company '[had] first referred the issue of taxation to the tax court' did not render inadmissible a claim for reparation in which the only alleged damage was the damage resulting from the payment of the tax. The Minister of the Budget's application to have the impugned judgment overturned is accordingly founded to the extent that the Administrative Court of Appeal upheld in part the claims made by S.A. Jacques Dangeville in its submissions ...” 27. On the same day the Conseil d'Etat delivered judgment on an appeal lodged on 23 August 1982 by S.A. Revert et Badelon against the Paris Administrative Court 's judgment of 10 June 1982. The Conseil d'Etat did not follow the line it had taken in its judgment of 26 February 1986 in the applicant company's case, but instead declared S.A. Revert et Badelon's appeal on points of law admissible, holding that the company was entitled to rely on the provisions of the Sixth Directive and should be granted a release from the contested tax liability – for which there was no statutory basis as the statutory provisions conflicted with the objectives of the Directive – for the sums erroneously paid for the period from 1 January to 30 June 1978. 28. The Government Commissioner lodged submissions that were common to the applicant company's and S.A. Revert et Badelon's cases. He pointed out that the factual and legal issues in each were identical, saying: “... [the file in the case of S.A. Revert et Badelon ] raises the same issue of law as that decided by this court on 19 March 1986 on the appeal of the Jacques Dangeville company. The period concerned is the same and the applicable instruments identical. The appellant company, which runs the Revert et Badelon firm, has an activity as insurance brokers which is indistinguishable from that of the Dangeville company ...” 29. He added: “... I invite you to quash the judgment of the Paris Administrative Court of Appeal which upheld the Dangeville company's claims for compensation. It has been that company's misfortune to have its tax claim decided too early. I am conscious that the resulting outcome in its case may appear unjust. I am, however, mindful that upholding the judgment in its favour would mean your making an exception to the principles on which your decision-making process is based that would unreasonably undermine the stability of legal situations created by judicial decision. One isolated case based, moreover, on transitional difficulties, cannot serve to justify making such an exception ...” 30. In finding in favour of S.A. Revert et Badelon in its judgment of 30 October 1996, the Conseil d'Etat held as follows: “Firstly, by virtue of Article 1 of the Sixth Directive of the Council of the European Communities of 17 May 1977 the member States were required to take appropriate measures by no later than 1 January 1978 in order to bring their systems of value-added tax in line with the objectives of the Directive. Although the Ninth Directive of 26 June 1978, which was notified to the French State on 30 June 1978, granted France an extension of time – until 1 January 1979 – in which to transpose the provisions of the Sixth Directive, it is construed by the Court of Justice of the European Economic Communities as having no retroactive effect. Thus, before 30 June 1978 it was unable to afford the French authorities a defence for their failure to enact provisions complying with the objectives of the Sixth Directive on time. Further, in so far as they make dealings by insurance brokers liable to value-added tax when the remuneration for them does not take the form of commission or brokerage set by statute or regulations, Articles 256 and 261-4-1 o of the General Tax Code, which were enacted by the Law of 6 January 1966 and remained in force until amended by the Law of 29 December 1978, are not compatible with the objectives of the provisions of sub-paragraph (a) of Article 13-B of the Sixth Directive, which exempts from value-added tax all insurance and reinsurance transactions performed by insurance brokers or agents. Accordingly, it is to that extent necessary to rule that those provisions of Articles 256 and 261-4-1 o were inapplicable for the period from 1 January to 30 June 1978. It follows that the submission by the S.A. Revert et Badelon firm, which carries on an activity as insurance brokers, that there was no basis in law for the demand for it to pay value-added tax on its business dealings during the period from 1 April to 30 June 1978 is well-founded. However, for the period from 1 July to 31 December 1978 the company is not entitled to rely on the incompatibility of Articles 256 and 261-4-1 o of the General Tax Code with the objectives of the provisions of sub-paragraph (a) of Article 13-B of the Sixth Directive, as the time-limit by which France was required to bring its legislation into line with that Directive was extended to 1 January 1979 by the Ninth Directive. Subsequently, the applicant company was rightly charged value-added tax for the period from 1 July to 31 December 1978 on the basis of the provisions of Articles 256 and 261-4-1 o of the General Tax Code that remained applicable. It follows from the foregoing that the sole valid submission made by the S.A. Revert et Badelon firm is that the Paris Administrative Court erred in its impugned judgment in dismissing its claim for the periods from 1 to 29 February 1978 and 1 April to 30 June 1978 ...” | The applicant company, a firm of insurance brokers whose commercial transactions were subject to value added tax (VAT), paid 292,816 French francs in VAT on its operations in 1978. The provisions of the Sixth Council Directive of the European Communities, which should have been applied from 1 January 1978, exempted from VAT “insurance and reinsurance transactions, including related services performed by insurance brokers and insurance agents”. However, France was granted an extension of time for implementing that directive. The applicant company sought reimbursement of the amount of VAT it had paid or, failing that, the amount attributable to the period from 1 January 1978 to the date the directive entered into force. The Conseil d’État dismissed its application. The applicant also lodged an application with the tax authorities requesting them to review their position. Those proceedings were dismissed by the Conseil d’État, which held that the application for a tax refund had already been the subject of a final judicial decision. However, ruling that same day on an appeal by another company, whose commercial activity and claims were identical to those of the applicant, the Conseil d’État, in a decision that represented a departure from its previous case-law, accepted that there was an obligation on the State to reimburse the sums that had been unduly paid. The applicant alleged in particular a violation of the right to property, as it considered that it had been definitively deprived of money owed to it by the State by the decisions of the Conseil d’État dismissing its claims. |
654 | Political figures | 2. The applicant was born in 1934 and lives in Pušća. He was represented by Mr Č. Prodanović, an advocate practising in Zagreb. 3. The Government were represented by their Agent, Ms Š. Stažnik. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant was the President of the Republic of Croatia in the period between 19 February 2000 and 18 February 2010. Events giving rise to the dispute 6. On 15 September 2006 Mr Ivan Jurašinović, an advocate of Croatian origin who was at the time practicing in Angers (France), as the legal representative of a certain Mr M.T., lodged a criminal complaint with the investigating court in Nanterre against a certain Mr M.N. and ten other Croatian nationals, including the applicant, in respect of two counts of the attempted murder of his client and one count of attempted extortion by a criminal organisation. Among the accused was also a certain Mr H.P., who was at the time in the Croatian media portrayed as a well-known mafia boss, and was thus perceived as such by the general public. According to the Croatian media, M.T. was a former member of Croatian secret services and arms dealer. 7. In his third-party comments before the Court (see paragraphs 64-73 below), Mr Jurašinović stated that in the criminal complaint in question his client had maintained that H.P. had financed the applicant’s election campaign in 2000 and had mentioned the name of the agent of the French security service who had provided him with information to that effect. Mr Jurašinović in his comments before the Court reproduced the relevant part of the said complaint concerning the applicant, who had been accused as being an accomplice in the attempted murder and in the extortion of his client. The relevant part of the criminal complaint read as follows: “There is therefore sufficient evidence to suspect H.P. and V.Z. of being the sponsors of the assassination attempt against my client, M.N. being the executioner. In so far as the meetings of this mafia organisation are regularly organised [at the address] Pantovčak 28, the headquarters of the company O. – meetings in which Stipe Mesić participates – it follows that Stipe Mesić is the head of this mafia organisation. My client has become convinced, and intends to demonstrate this in the course of the upcoming investigation, that Stipe Mesić is leading this mafia organisation ...” 8. On 10 November 2006, the daily newspapers Novi List and Glas Istre each published an article on their websites in which they reported that Mr Jurašinović had lodged the above-mentioned criminal complaint in relation to attempts to murder his client, M.T. in respect of which the applicant had been mentioned as a “sort of a political patron of the person who ordered the murder, who according to the complaint is [H.P].” The article posted on the Novi List website was entitled “The President [named] in the [criminal] complaint, together with [H.P.] and [M.N.]” and the article posted on the Glas Istre website was entitled “Mesić reported for attempted murder”. There is no evidence to suggest that the exact content of the criminal complaint, as stated above (see paragraph 7), was known to the media. 9. In both articles it was stated, inter alia, that journalists had contacted Mr Jurašinović by phone and that he had confirmed that the criminal complaint had indeed been lodged, but that he did “not want to go into details, explaining that he is anyway not allowed to do so under French law”. Both articles also reported that Mr Jurašinović had specified that he had lodged the criminal complaint in the name of his client. 10. In his comments before the Court (see paragraphs 64-73 below), Mr Jurašinović gave further context as to why the media had paid such attention to the criminal complaint that he had lodged on behalf of his client. In his view the media scrutiny had been due to the fact that in early November 2006 another political figure, a certain Mr I.P., had accused the applicant in the media of being responsible for an attempt on his life, after an unknown individual had thrown two hand grenades at his house. 11. On the same day the above articles (see paragraph 8 above) were published; during a televised press conference organised in the course of a visit paid by the applicant to Našice, journalists asked him to comment on the content of those articles. The applicant stated that he had met H.P. only twice in his life “by chance, in passing” and that he did “not have any connection with him at the time”. Then he added: “Why this advocate who lodged the criminal complaint says that I am [H.P.’s] political patron is probably known only to him, but I would suggest to him that he visit Vrapče [a psychiatric hospital] when he comes to Zagreb because people [such as him] can receive effective treatment there. It is a great opportunity; it won’t cost him a lot and our physicians are known for their efficiency.” 12. This statement was reported on the official website of the President of Croatia, on the websites of the weekly news magazine Nacional, Croatian Radiotelevision ( Hrvatska radiotelevizija – Croatia’s public broadcasting company) and the Croatian American Association, as well as by the Croatian news agency HINA, the web portal Index.hr, the daily newspaper Večernji list and Nova TV. Civil proceedings for defamation 13. Given that under Croatian law the national President has immunity from criminal prosecution but not from civil liability, on 22 January 2007 Mr Jurašinović brought a civil action for defamation against the applicant in the Zagreb Municipal Court ( Općinski sud u Zagrebu ). He sought HRK 70,000 (approximately EUR 17,570 at the material time) in compensation for non-pecuniary damage. 14. Mr Jurašinović, as the plaintiff, argued that the applicant had used his position as President of Croatia and the related media attention to harm his honour and reputation, and his professional and moral credibility, in the most egregious way and to publicly disqualify him from holding the position of advocate by implying that he was a mentally disturbed person. He submitted that the offensive statement at issue (see paragraph 11 above) had caused him intense emotional distress in the form of anxiety, agitation, insomnia, indignation, heavy psychological pressure and constant tension. He also stated that, after the publication of the impugned statement, he had experienced difficulties in his work and in establishing social and professional contacts, having been constantly forced to justify his actions and answer uncomfortable questions about the applicant’s statement. He also asserted that he had experienced a fall-off in the number of new clients. 15. In response, the applicant denied having harmed the plaintiff’s honour and reputation and submitted that his statement had not been offensive and that it had not been his intention to offend the plaintiff. Rather, his statement had constituted an attempt at irony in respect of the unfounded severe accusations that had been made against him and had to be understood in the context of his reply to the journalist’s question. The impugned part of his statement had been a figure of speech ( figurativna ) and thus a value judgment rather than an unjustified personal attack against the plaintiff. 16. On 23 October 2008, the Zagreb Municipal Civil Court ruled in favour of the plaintiff and ordered the applicant to pay him HRK 70,000 in compensation for non-pecuniary damage; it also ordered the applicant to pay to the plaintiff the costs of the proceedings. However, following an appeal by the applicant, that judgment was on 31 May 2011 quashed by the Zagreb County Court ( Županijski sud u Zagrebu ), and the case was remitted to the first-instance court. 17. In the fresh proceedings, by a judgment of 23 December 2011 the Zagreb Municipal Court again ruled in favour of the plaintiff and ordered the applicant to pay him HRK 70,000 (approximately EUR 9,290 at the material time), together with the accrued statutory default interest, running from the date of the judgment, in compensation for non-pecuniary damage; the court also ordered the applicant to pay the plaintiff HRK 9,300 (approximately EUR 1,235 at the material time) for the costs of the proceedings. The relevant part of that judgment reads as follows: “In his statement – uncontested in terms of its content and the fact that it was made public on 10 November 2006 – the defendant suggested to the plaintiff that he visit Vrapče in order to get effective help. [The court finds it convincing] that the plaintiff understood this as implying that he should be treated for mental illnesses or disorders. In particular, it is well known that Vrapče is the location of the best-known Croatian hospital for mental illnesses ... ... this court ... has established that the defendant did not directly call the plaintiff mentally ill by means of [making] the said statement, but [rather] told him to get treatment in Vrapče, where physicians [would] provide effective help. This [was offensive] to the plaintiff, who understood it as a suggestion that he needed to be treated for a mental illness or disorder ... ... the defendant breached the plaintiff’s right of personality, namely his honour and reputation, by implying that he should be treated for a mental illness or disorder. In this court’s view it is unacceptable for anyone to state publicly in any manner that someone should be treated for such illnesses or disorders, since that is exclusively a personal matter for every citizen and not information that anyone would be allowed to disclose, let alone suggest treatment for such illness. The defendant’s objection that this statement is a value judgment on his part ... is ill ‑ founded. To think something about someone and to say it publicly are two very different things. That is even more the case given that words spoken publicly, especially by the State President, have consequences. In the present case the statement breached the plaintiff’s right of personality – that is to say it [harmed] his honour and reputation – especially because anyone’s need, including that of the plaintiff, to be treated for mental illness, is that person’s personal matter and no one is entitled to comment on it against the will of the person concerned, let alone suggest treatment, if they are not medical professionals. It is correct that Article 38 §§ 1 and 2 of the Croatian Constitution guarantees freedom of thought and expression, but that right may be limited if it causes harm to other persons, as set out in section 8 of the Obligations Act, and by [need to] the protect the rights of personality, as provided in section 19(1) and (2) of the same Act, which results in the application of [its] section 1045(1) .... The defendant’s argument about the ironic or symbolic nature of his statement is neither decisive nor acceptable because the manner of expressing oneself in public must in itself be such as to not cause damage to anyone, in accordance with section 8 of the Obligations Act. ... The arguments that the defendant’s statement was perceived by the plaintiff, his clients and parents and fellow advocates as a threat were not accepted. ... [It] is true that Croatia used to be under the Communist rule, and that it is common knowledge that over the entire Communist world, psychiatric hospitals were also used for the internment of political opponents. However, Croatia is now a free democratic country, with a prescribed method of placement in psychiatric hospitals ... and ... it is [therefore] unfounded to conclude that the defendant could by his statement [genuinely have] threatened the plaintiff with placement in such an institution. Moreover, in the part of the statement of claim [concerning the factual basis of his civil action], by which the court is bound, the plaintiff nowhere mentions threats or seeks damages [on that account], but [seeks damages] only for the breach of his right of personality – i.e. [for the injury to] his honour and reputation, and not for the possible fear that only a threat can cause. Consequently, the plaintiff’s testimony was not accepted, as [it was] unconvincing in so far as he referred to the fear for his safety [expressed] by his parents, clients and fellow advocates.” 18. On 30 January 2012 the applicant lodged an appeal against the first ‑ instance judgment. 19. By a judgment of 26 October 2016, the Zagreb County Court upheld the first-instance judgment but reduced the amount of compensation payable to the plaintiff to HRK 50,000 (approximately EUR 6,660 at the material time), and the costs to HRK 6,057 (approximately EUR 806 at the material time). The applicant was ordered to pay those amounts within fifteen days. The relevant part of that judgment reads as follows: “... on the basis of the evidence taken, the first-instance court correctly established that the defendant ... harmed the plaintiff’s honour and reputation by publicly ... implying that the plaintiff should be treated in Vrapče ..., the uncontested location of an institution treating mental or psychiatric illnesses and disorders ... The content of this statement is not allowed in the light of the [relevant] statutory provisions because a person’s health is the personal matter of that person and not public information. By holding that the contested statement was injurious for the plaintiff’s honour and reputation, the first-instance court correctly accepted the plaintiff’s testimony as logical and convincing and found that the statement had harmed his honour and reputation.” 20. The County Court’s judgment was served on the applicant’s representative on 25 November 2016. 21. The applicant then, on 23 December 2016, lodged a constitutional complaint against the civil courts’ judgments alleging a breach of his freedom of expression. He relied on Article 38 §§ 1 and 2 of the Croatian Constitution (see paragraph 24 below) and Article 10 of the Convention. 22. By a decision of 27 September 2017, the Constitutional Court Croatia ( Ustavni sud Republike Hrvatske ) declared the applicant’s constitutional complaint inadmissible, finding that the case did not raise a constitutional issue. That decision was served on the applicant’s representative on 20 October 2017. 23. In the subsequent enforcement proceedings, on 23 July 2018 the Financial Agency collected HRK 129,552.74 (approximately EUR 17,515 at the material time) from the applicant’s bank account and transferred it to that of Mr Jurašinović. That sum consisted of the principal amount that the applicant had been ordered to pay by the Zagreb Municipal Court’s judgment of 23 December 2011 (as amended by the Zagreb County Court’s judgment of 26 October 2016 – see paragraphs 17 and 19 above) and of the accrued statutory default interest. | This case concerned civil proceedings for defamation in which the applicant – a former President of Croatia – had been ordered by the Croatian courts to pay the equivalent of 6,660 euros to a specialist lawyer of Croatian origin practising in France, for having tarnished his reputation. |
37 | Right to education (Article 2 of Protocol No. 1) | I. THE CIRCUMSTANCES OF THE CASE 7. The present application was lodged by parents, who are members of the Norwegian Humanist Association ( Human-Etisk Forbund ), and their children, who were primary - school pupils at the time of the events complained of in the present case: Mrs Ingebjørg Folgerø ( born in 1960), Mr Geir Tyberø ( born in 1956) and their son, Gaute A. Tyberø ( born in 1987); Mrs Gro Larsen ( born in 1966), Mr Arne Nytræ ( born in 1963) and their two sons, Adrian Nytræ ( born in 1987) and Colin Nytræ ( born in 1990); Mrs Carolyn Midsem ( born in 1953) and her son, Eivind T. Fosse ( born in 1987). Initially the Association had also joined the application, but it subsequently withdrew. 8. On 26 October 2004 the Court struck the application out in so far as it concerned the Association and declared the application inadmissible on grounds of non-exhaustion in respect of the applicant children (for which reason, the term “applicants” used elsewhere in the present judgment refers to the applicant parents). The Court moreover observed that, while the applicant parents had complained under the Convention in particular about the absence of a right to full exemption from the KRL subject (see paragraph 16 below), they had also challenged before the Court the limited possibilities and the modalities for obtaining partial exemption. However, as can be seen from the Supreme Court ’ s judgment, the applicant parents ’ lawsuit and appeal to the Supreme Court had been directed against the KRL subject and its implementation generally. The Supreme Court found no ground for determining whether the teaching of the appellants ’ children had occurred in a manner which violated the relevant human rights treaties. In the light of the foregoing, the Court found that the applicant parents had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in respect of their complaint about the possibilities and modalities for obtaining partial exemption from the KRL subject and declared this part of the parents ’ application inadmissible. In its subsequent decision on admissibility of 14 February 2006, the Court held that, in its examination of the issue regarding full exemption, the above limitations on the scope of the case that followed from the decision of 26 October 2004 did not prevent it from considering the general aspects of the partial- exemption arrangement, notably in the context of the parents ’ complaint under Article 14 of the Convention. A. Factual background to the present case 9. Norway has a State religion and a State Church, of which 86% of the population are members. Article 2 of the Constitution provides: “Everyone residing in the Kingdom shall enjoy freedom of religion. The Evangelical Lutheran Religion remains the State ’ s official religion. Residents who subscribe to it are obliged to educate their children likewise.” 10. Instruction in the Christian faith has been part of the Norwegian school curriculum since 1739. From 1889 onwards members of religious communities other than the Church of Norway were entitled to be exempted in whole or in part from the teaching of the Christian faith. 1. The former Compulsory School Act 1969 11. In connection with the enactment of the former Compulsory School Act 1969 ( lov om grunnskolen, 13 June 1969, no. 24, hereafter referred to as “the 1969 Act”), Parliament decided that teaching of the Christian faith should be dissociated from the baptismal instruction of the Church and aimed at teaching the main content of the history of the Bible, the principal events in Church history and basic knowledge of the Evangelical Lutheran Faith for children (section 7 (4) of the Act). 12. Under the “Christian object clause” ( den kristne formålsparagraf ) in section 1 of the Act: “Primary school shall, with the understanding and cooperation of the home, assist in giving pupils a Christian and moral education and in developing their abilities, spiritual as well as physical, and giving them good general knowledge so that they can become useful and independent human beings at home and in society. School shall promote spiritual freedom and tolerance, and place emphasis on creating good conditions for cooperation between teachers and pupils and between the school and the home.” 13. Teachers were required to teach in accordance with the Evangelical Lutheran faith (section 18(3), added in 1971). 14. In accordance with section 12 (6) of the 1969 Act, children of parents who were not members of the Church of Norway were entitled, upon the parents ’ request, to be exempted in whole or in part from lessons on the Christian faith. Pupils who had been exempted could be offered alternative lessons in philosophy. 2. Reform 15. Between 1993 and 1997 a process of reform of compulsory primary and secondary school took place. In the spring of 1993 Parliament decided to bring the school starting age forward from the age of seven to six and the next spring it extended compulsory school attendance from nine to ten years. A new curriculum was presented to Parliament. The majority of the Parliamentary Committee for Church Affairs, Education and Research proposed that Christianity, other religions and philosophy be taught together. It emphasised the importance of ensuring an open and inclusive school environment, irrespective of the pupils ’ social background, religious creed, nationality, sex, ethnic group or functional ability. School should be a meeting place for all views. Pupils having different religious and philosophical convictions should meet others and gain knowledge about each other ’ s thoughts and traditions. School should not be an arena for preaching or missionary activities. It was noted that since 1969 teaching of the Christian faith had been dissociated from the State Church ’ s baptismal instruction. The subject should give knowledge and insight but should not be a tool for religious preaching. The Committee ’ s majority further considered that guidelines for exemptions should be worked out in order to achieve a uniform practice and that minority groups should be consulted. Exemptions should be limited to parts of the subject, especially material of a confessional character and participation in rituals. 16. Subsequently, a white paper ( St.meld. nr. 14 for 1995-96) on Christianity, religion and philosophy ( kristendomskunnskap med religions- og livssynsorientering, hereafter referred to as “the KRL subject”) was presented, in which the Ministry of Church Affairs, Education and Research ( Kirke-, utdannings- og forskningsdepartementet; as from 1 January 2002 the Ministry of Education and Research ( Utdannings- og forskningsdepartementet ) – hereafter “the Ministry”) indicated the following guidelines for making exemptions: “No pupil should feel that being exempted is unpleasant or a stigma; No pupil should be pressurised to stand out as a representative of a specific philosophy of life and the school should therefore display great caution in class or at the school in its handling of a request for exemption; It should not be automatic for certain pupils to be exempted from certain parts of the syllabus; If the circumstances lend themselves to it and the parents/pupil so wish, the background and reasons for an exemption can be taken up in the lessons. An exemption does not mean a freedom to be ignorant ...” 17. The majority of the above-mentioned parliamentary committee endorsed the curriculum in the main and pointed out that Christianity should form the central part of the KRL subject ( Innst.s.nr 103 for 1995- 96 ). It further stated: “The majority would also underline that the teaching should not be value- neutral. The aim that the teaching should not be preaching should never be interpreted to mean that it should occur in a religious/ethical vacuum. All teaching and education in our primary schools shall take the school ’ s object clause as a starting point and, within this subject, Christianity, other religions and philosophy shall be presented according to their own special features. The subject should place emphasis on the teaching of Christianity.” 18. A minority of one proposed that, for all primary- school pupils, there should be a right to full exemption from the KRL subject and to alternative teaching. 19. In the course of preparing the amendments to the law, the Ministry commissioned Mr E. Møse, then a High Court Judge, to make an assessment of compulsory education in the KRL subject from the angle of Norway ’ s obligations under public international law. In his report of 22 January 1997, he concluded: “The object clause of the Primary School Act, whether taken alone or together with Article 2 of the Constitution and other special rules on the Church and schools, does not provide a basis for establishing that the teaching of Christianity under the new syllabus will of legal necessity become preaching, educative or influential in favour of the Evangelical Lutheran Religion. The legislature may choose to make provision for education in the form of preaching to pupils who are of this creed, but not to others. That would be inconsistent with our international obligations and Article 110 c of the Constitution on the protection of human rights. What emerges, from a legal point of view, from the somewhat unclear concept of ‘ confessional basis ’, is that a natural consequence of the State Church system is that the legislator lets instruction in religion or philosophy include the Evangelical Lutheran thoughts, not other forms of Christianity. The law on the new subject, which includes a part on Christianity, has opted for this. ... The solution has been opted for because the majority of the population in Norway is affiliated to this creed. It is evidently motivated by objective reasons. It cannot be ruled out by human rights treaties, provided that the teaching is otherwise pluralistic, neutral and objective.” 20. As regards the issue of exemption from the KRL subject, Mr Møse stated: “In the situation as it emerges I find that a general right of exemption would be the safest option. This would mean that international review bodies would not undertake a closer examination of thorny questions that compulsory education raises. However, I cannot say that a partial exemption would violate the conventions, provided that the operation of the system falls within the framework of the relevant treaty obligations. A lot would depend on the further legislative process and the manner of implementation of the subject.” 21. Sections 7 and 13 of the 1969 Act were amended by an Act of 19 June 1997 (no. 83), which came into effect on 1 July 1997. The new provisions, plus an object clause similar to section 1 of the former 1969 Act, were subsequently included in sections 2-4 and 1-2 respectively of the Education Act 1998 ( Lov om grunnskolen og den videregående opplæring av 17. juli 1998 nr. 61 – “the Education Act 1998 ”), which came into force on 1 August 1999. 22. Section 1-2(1) provided: “The object of primary and lower secondary education shall be, in agreement and cooperation with the home, to help give pupils a Christian and moral upbringing, to develop their mental and physical abilities, and to give them good general knowledge so that they may become useful and independent human beings at home and in society.” 23. Section 2-4 read: “Instruction in Christianity, religion and philosophy shall (i) transmit thorough knowledge of the Bible and Christianity in the form of cultural heritage and the Evangelical Lutheran Faith; (ii) transmit knowledge of other Christian communities; (iii) transmit knowledge of other world religions and philosophies, and ethical and philosophical subjects; (iv) promote understanding and respect for Christian and humanist values; and (v) promote understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions. Instruction in Christianity, religion and philosophy is an ordinary school subject, which should normally bring together all pupils. The subject shall not be taught in a preaching manner. A person who teaches Christianity, religion and philosophy shall take as a starting point the object clause in section 1-2 and should present Christianity, the different religions and philosophy from the standpoint of their particular characteristics. The same pedagogical principles shall apply to the teaching of the different topics. A pupil shall, on the submission of a written parental note, be granted exemption from those parts of the teaching in the particular school concerned that they, from the point of view of their own religion or philosophy of life, consider as amounting to the practice of another religion or adherence to another philosophy of life. This may concern, inter alia, religious activities within or outside the classroom. In the event of a parental note requesting exemption, the school shall as far as possible seek to find solutions by facilitating differentiated teaching within the school curriculum.” 24. From the travaux préparatoires it can be seen that the expression “religious activities” was meant to cover, for example, prayers, psalms, the learning of religious texts by heart and the participation in plays of a religious nature. 25. In accordance with a circular by the Ministry of 10 July 1997 (F ‑ 90 ‑ 97), a parental note to the school requesting exemption should contain reasons setting out what they considered amounted to practice of another religion or adherence to another philosophy of life. The pupil should be granted an exemption after the parents had specified the reasons. If the request was rejected, the parents had a right of appeal to the State Education Office in the county concerned. The appeal was sent via the school, which then had an opportunity to alter its decision. 26. The requirement of giving reasons was further specified in a ministerial circular of 12 January 1998 (F-03-98), according to which no reasons were required for making an exemption from clearly religious activities. Beyond that, with regard to matters falling outside the main rule for making exemptions, stricter requirements applied in respect of reasons. 27. In connection with the preparation of the KRL subject, associations representing minority convictions expressed strong objections, notably that the subject was dominated by Evangelical Lutheran Christianity and contained elements of preaching. The Norwegian Humanist Association commented, inter alia, that the subject had a confessional basis ( konfesjonsforankring ) and that the possibility foreseen for obtaining exemption from only parts of the subject was inadequate. At its national congress in May 1997 the Association decided to invite Parliament to reject the government ’ s proposal to limit the right of exemption. 28. From autumn 1997 the KRL subject was gradually introduced into the primary- school curriculum, replacing the subject of Christianity and philosophy of life. During the school year 1999/ 2000, the subject was introduced at all levels. 3. Evaluations of the KRL subject 29. On 18 October 2000 the Ministry issued a press release about the completion of two evaluation reports on the KRL subject, one entitled “ Parents ’, pupils ’ and teachers ’ experiences with the KRL subject” ( Foreldres, elevers og læreres erfaringer med KRL-faget ), provided by Norsk Lærerakademi, the other entitled “A subject for every taste? An evaluation of the KRL subject” ( Et fag for enhever smak? En evaluering av KRL-faget ) by the Høgskulen i Volda and Diaforsk. Parliament had requested that a survey of the implementation of the exemption rules be prepared after a three-year period. Both reports concluded that the partial- exemption arrangement was not working as intended and should therefore be thoroughly reviewed. The second report listed the following “Main conclusions”: “In this part of our report we have discussed whether there is concordance between KRL ’ s intentions, principles and exemption schemes on the one hand and its practical implementation in schools nationwide on the other, and whether parental rights can be said to be ensured when the teaching and exemption scheme are organised the way they are. The perspective of parental rights, which is central to the project ’ s mandate, has made it necessary to focus especially on the experiences various groups of parents have had with the subject and with the exemption scheme. All things considered it should be said that the great majority of the parents we have been in contact with, who belong to the Church of Norway, are satisfied with the subject or have no strong opinions about it. However we have found powerful resistance to important aspects of the subject among other groups of parents. The lasting antipathy to the subject from parents belonging to religious/ faith minorities means that KRL can hardly be said to integrate and include as intended. The principal and empirical surveys provide grounds for the following main conclusions: 1. There is broad agreement among parents that it is important to have some common teaching in the subject concerning different religions and beliefs, but there is no agreement about • what the contents and objectives of the common teaching should be; • in which year the pupils should be taught about religions other than their own. 2. In practice some of the subject ’ s intentions are ensured at all surveyed schools, but at none of them are all the fundamental intentions ensured. Deficient implementation of the central intentions underlying the subject can be explained by • tensions in the subject description itself and between the various intentions underlying the subject, making it difficult to implement; • lack of resources and problems with implementation presuppose changes at schools. 3. The current exemption scheme does not work so that parental rights are ensured in practice. This is due to the following reasons among others : • the information schools give about the exemption scheme is in many ways not suited to safeguarding the possibility of exemption; • the information given about KRL classes is of too general a nature for parents to be able to notify their intention regarding an exemption. For example, information about working methods is hardly ever given. Besides, the lesson plans generally come too late for parents to have a practical opportunity of asking for an exemption; • schools interpret the exemption regulations too strictly compared with the clarifications given both by Parliament and the Ministry. For instance, an exemption is often granted only in respect of those activities which are ‘ clearly religious activities ’. Furthermore several schools report attitudes which give the impression that it is practically impossible to be granted an exemption; • schools offer very little differentiated teaching to pupils who are to be exempted from parts of the subject, and pupils with an exemption mostly sit passively in the classroom; • in addition, a number of parents from minority- language backgrounds do not have the language competence necessary to exercise their rights even though they would like an exemption. In many cases this causes distrust in school/ home relations. A considerable number of parents from minority backgrounds say they want full exemption but will not apply because they are afraid of a conflict with the school that may harm their children; • the integration of themes and subjects helps KRL become invisible in the timetable so that in practice it is very difficult to ask for an exemption. 4. Changes should be made which still ensure some teaching for the whole class, while ensuring parental rights in practice. This only seems possible under certain conditions. • Arrangements should be made in order to facilitate teaching about the different religions and beliefs and promote dialogue and mutual respect in some tuition for the whole class. Efforts should probably be made to have flexible models that can be adjusted to the special conditions prevailing for lower primary, upper primary and lower secondary levels respectively in different parts of the country and for different groups of pupils; • Considering the problems we can now see at several schools, it should be possible to provide for full exemption. This would be the safest solution in respect of international conventions and probably also the one that in the long run would be best suited to ensuring support and legitimacy for a subject that is focused on religion and belief. We have established that the variations we have found in teaching in different parts of the country, at some schools and in different classes, give us reason to ask if KRL is one or more than one new subject.” B. Judicial proceedings brought by some of the applicants 30. In the meantime, on 14 March 1998 the Norwegian Humanist Association, together with eight sets of parents who were members of the Association and whose children went to primary school, brought proceedings before Oslo City Court ( byrett ) on account of administrative refusals of the parents ’ applications for full exemption from the teaching of the KRL subject. They claimed that the refusal of full exemption violated the parents ’ and the children ’ s rights under Article 9 of the Convention and Article 2 of Protocol No. 1, taken on their own or in conjunction with Article 14. They also relied on, amongst other provisions, Articles 18 and 26 of the 1966 United Nations International Covenant on Civil and Political Rights and Article 13 § 3 of the 1966 United Nations International Covenant on Economic, Social and Cultural Rights. 31. By a judgment of 16 April 1999, the City Court rejected the State ’ s objection that the Association lacked a legal interest and hence did not have legal standing. However, on the substantive issues the City Court found for the State and rejected the claim. 32. The Association and the parents appealed to the Borgarting High Court ( lagmannsrett ), which by a judgment of 6 October 2000 upheld the City Court ’ s judgment. 33. On a further appeal by the applicants, the Supreme Court ( Høyesterett ), by a judgment of 22 August 2001, unanimously dismissed the appeal in so far as it concerned the Association on the ground that it lacked a legal interest sufficient to have standing in the case. In so far as it concerned the other appellants, it unanimously dismissed their appeal and upheld the High Court ’ s judgment. 34. In his reasoning, approved in the main by the other four Justices sitting in the case, the first voting judge, Mr Justice Stang Lund, stated from the outset that “[the] case concerns the validity of the administrative decisions rejecting the parents ’ applications for full exemption for their children from the primary and secondary school ( KRL ) subject”. He defined the issue to be determined as being “whether instruction in the [ KRL ] subject with a limited right to exemption [was] contrary to Norway ’ s international legal obligations to protect, inter alia, freedom of religion and belief”. 35. Thereafter, Mr Justice Stang Lund undertook an extensive analysis of the legislative history and the position under international human rights law, notably the relevant provisions and case-law of the European Convention and the 1966 International Covenant on Civil and Political Rights (“ the ICCPR ”). Dealing in turn with each of the relevant provisions of the Education Act 1998, Mr Justice Stang Lund made the following observations about the Christian object clause in section 1-2(1). “The object clause applies to all teaching in primary and lower secondary schools. The provision is a general one, and its scope may be difficult to determine. It may raise questions relating to the conventions ’ provisions regarding freedom of religion and parental rights; see Judge Møse, pages 35 et seq. of Proposition No. 38 (1996- 97) to the Odelsting [the larger division of Parliament ]. As far as the KRL subject is concerned, the provision must be viewed in conjunction with section 2-4(2), which establishes that this subject is an ordinary school subject for all pupils, and that instruction in the subject shall not involve preaching. The object clause must be interpreted and applied in such a way that it does not conflict with the conventions that have been incorporated pursuant to section 2 ( see also section 3 ) of the Human Rights Act. As a result of changes and amendments in subject syllabuses and national standard curricula over time, the expression ‘ Christian and moral upbringing ’ must be interpreted as meaning that Christian and humanist values are to be viewed in conjunction with each other. Both the Christian and the humanist traditions underscore the importance of truth, human dignity, charity, democracy and human rights. These are values common to almost everyone in Norway, regardless of religion or philosophy of life. The conventions do not require that teaching in schools must be value neutral; see the judgment of the European Court of Human Rights in the case of Kjeldsen, Busk Madsen and Pedersen v. Denmark ( 7 December 1976, § 53, Series A no. 23 ). The object clause establishes that all school education shall take place in cooperation and agreement with the home. Any effort by primary and lower secondary school teachers to help give pupils a Christian upbringing can only be made with the parents ’ consent and in cooperation with the home. Interpreted in this way, the provision is not incompatible with Article 9 of the European Convention and Article 18 § § 1 to 3 of the ICCPR regarding freedom of thought, conscience and religion or with Article 2 of Protocol No. 1 to the European Convention and Article 18 § 4 of the ICCPR regarding parents. The reference to the object clause in section 2 ‑ 4(3) which prescribes that teachers of the KRL subject shall take the Christian object clause of the primary and lower secondary school as their point of departure thus has no independent significance for the issue of whether there is a violation of the conventions.” 36. As regards section 2-4(1) to (3) of the Education Act 1998, Mr Justice Stang Lund stated as follows. “The appellants have emphasised that the Act requires the teaching to give pupils a thorough knowledge of the Bible and of Christianity in the form of cultural heritage and the Evangelical Lutheran Faith, while it merely requires knowledge of other world religions, beliefs and ethical and philosophical topics. I refer to the fact that it may be inferred from the practice of the European Court of Human Rights that the States Parties themselves decide the scope and content of teaching; see Kjeldsen, Busk Madsen and Pedersen, cited above, § 53, and Valsamis v. Greece, 18 December 1996, § 28, Reports of Judgments and Decisions 1996 ‑ VI. Thus, Article 9 of the ECHR and Article 2 of Protocol No. 1 do not preclude compulsory instruction in the content of various religions and beliefs and in the history of religions and ethics, provided that such instruction is given in an objective, critical and pluralistic manner. In this respect, I refer to my earlier review and summary of the decisions and comments of the convention bodies. The compulsory instruction must cover different religions and beliefs. The greater emphasis placed in section 2-4(1) on knowledge of Christianity than on knowledge of other religions and beliefs is, in my opinion, within the limit of the discretion accorded by the conventions to the States Parties. The requirement that compulsory instruction must be objective, critical and pluralistic cannot be interpreted as meaning that there must be a specific, proportional division of instruction between different religions and different philosophies of life. In the light of the history, culture and traditions of the individual State Party, it must be acceptable for certain religions or beliefs to be more dominant than others. Indoctrination or other preaching of a specific religion or a specific philosophy of life will be contrary to the European Convention and the ICCPR; see Kjeldsen, Busk Madsen and Pedersen, cited above, § 53, and Valsamis, cited above, § 28, and point 6 of the comment of the UN Human Rights Committee of 20 July 1993. Accordingly, section 2-4(2) of the Education Act prescribes that instruction in the KRL subject shall not involve preaching. The appellants, supported, inter alia, by Judge Møse ’ s report (page 29 of Proposition no. 38 (1996-97) to the Odelsting ), have argued that instruction that communicates a specific religious view in a way that is liable to influence pupils to adopt a specific faith is also a violation of the convention provisions regarding freedom of religion and parental rights. I agree that such communication might involve a violation. However, the expression ‘ liable to ’ may be interpreted in such a way as to give it greater scope than that which it derives from the decisions of the European Court of Human Rights. I shall therefore keep to the criteria that have been developed in the Court ’ s practice. In connection with the introduction of the KRL subject, the travaux préparatoires show that the Ministry and the majority of Parliament were extremely concerned to emphasise that the subject was to be an ordinary school subject for all pupils. This has been expressly stated in the wording of the Act; see section 2-4 (2), first sentence. The legislator has also stated that the KRL subject shall be a subject designed to provide knowledge; see, for instance, page 6, second column, and page 1 0 of Proposition no. 38 (1996- 97) to the Odelsting. Section 2-4 (3) provides that Christianity, other religions and philosophies of life shall be presented on the basis of their distinctive characteristics. On the other hand, the Parliament ’ s Standing Committee on Education, Research and Church Affairs stated that instruction shall not be value neutral; see page 4 of Recommendation no. 103 (1995- 96) to Parliament. This in itself cannot be contrary to the conventions since, as I have established earlier, neither the ECHR nor the ICCPR is interpreted as meaning that instruction shall be neutral as regards values. ” 37. As to section 2-4(4) of the Education Act 1998, Mr Justice Stang Lund held that, if interpreted against the background of the relevant provisions of the Convention and the ICCPR and section 3 of the Human Rights Act, it must be understood to the effect that pupils had a right to be exempted and that their parents had no obligation to let their children follow lessons on religion and philosophy regarded as preaching or indoctrinating in the sense of those treaties. The children could therefore be absent from such classes. The question as to how large a part of the syllabus would be affected in this way would have to be decided in each concrete case depending on how the teaching was planned and implemented. In the view of Mr Justice Stang Lund, the provision on exemption was not contrary to any requirements pertaining to religious freedom and parental rights. The Convention requirement that the teaching should be objective, critical and pluralistic did not preclude compulsory education in the content of the different religions and philosophies of life or giving a particular religion or philosophy, in view of the Contracting State ’ s history, culture and traditions, a more prominent place than others. As already mentioned, the Education Act 1998 provided that the subject should be an ordinary school subject. According to the preparatory documents, it was to be a knowledge - based subject. The Act required that the teaching be neutral and not preaching. Therefore it did not appear that the provisions in section 2-4 regarding the contents of the teaching were contrary to the Convention. 38. Mr Justice Stang Lund further considered the parts of the school curriculum (the Ten-Year Compulsory Schooling Curriculum, issued by the Ministry in 1999, referred to below as “the Curriculum”) that, in the appellants ’ submission, gave preference to the Christian faith and influenced pupils to opt for Christianity. In relation to Norway ’ s international obligations, the Curriculum, which had its legal basis in sections 2 - 6 and 2 ‑ 8 of the Education Act 1998 and the relevant regulation of 28 June 1999, had the same legal status as other regulations. However, he observed, what mattered was that pupils gained understanding of the plurality of convictions and thoughts, and that the teaching did not present one faith as being superior to others. It ought to be acceptable, in the light of a Contracting State ’ s history, culture and traditions, that one or more religions or philosophies of life be given a more prominent place than others. 39. As to the appellants ’ objections to influencing pupils through the use of pictures, songs, drama, music and stories from the Bible and religious texts, Mr Justice Stang Lund found that it ought to be possible to impart neutrally to pupils the traditions and “means of transmitting knowledge” ( måte å formidle på ) of the various religions without running counter to international human rights law. The Curriculum placed emphasis on openness, insight, respect and dialogue and on the promotion of understanding and tolerance in discussion of religious and moral issues and forbade preaching. Within the framework of the Curriculum, the teaching of the KRL subject could be carried out without any conflict with the relevant provisions of international human rights law. 40. As to the appellants ’ argument that the school manuals, notably volumes 2, 3, 5 and 6 of Bridges, amounted to preaching and were capable of influencing the pupils, Mr Justice Stang Lund observed that, while several definitions of problems and formulations used in Bridges could be understood as if the Christian faith provided the answer to ethical and moral questions, no further information had been submitted to the Supreme Court as to how the teaching in relation to this material had been planned and implemented. 41. In this context Mr Justice Stang Lund noted that the appellants ’ lawsuit and appeal to the Supreme Court had been directed against the KRL subject and its implementation generally. The arguments and evidence adduced in relation to each decision to refuse full exemption had been aimed at highlighting how the subject functioned in general. The appellants had not gone deeply into the validity of the individual decision. Because of the way the case had been presented, there was no ground for determining whether the teaching of the appellants ’ children had occurred in a manner which violated the relevant human rights treaties. The case concerned the validity of the decisions refusing full exemption from the KRL subject. The appellants had not shown it to be probable that the teaching had been planned and carried out in a manner that, in accordance with these conventions, warranted exemption from all teaching of the subject in question. 42. Finally, Mr Justice Stang Lund went on to review the argument of discrimination. “Pursuant to section 2-4 of the Education Act, parents must send written notification in order for their child to be exempted from parts of the instruction at the individual school. Even if applications for exemption are most likely to concern parts of the KRL subject, a limited right to exemption applies to all subjects and activities. The Act does not stipulate that grounds must be given for the application. Practice as regards requiring grounds has varied to date. The State has argued that instruction in primary and lower secondary schools is to a considerable extent divided up into topics that cut across subject boundaries. In so far as parts of the KRL subject are integrated with other subjects, full exemption from instruction in the KRL subject will not be sufficient. It is also the view of the State that the KRL subject covers many topics which do not give grounds for exemption, pursuant either to the conventions or to section 2-4 (4). The exemption system is designed and practised in such a way that the content of the instruction is the decisive factor. In the State ’ s view, therefore, the prohibition against discrimination imposed by conventions cannot apply to requirements regarding the provision of grounds for applications for exemption. The Ministry has explained the requirement as regards grounds and the guidelines for exemption in two circulars. In Circular F-90-97 dated 10 July 1997, page 5, the Ministry stated: ‘ When parents request an exemption, written notification to this effect shall be sent to the school. The notification must contain grounds supporting what they perceive to be the practice of another religion or adherence to another philosophy of life in the instruction. If the parents apply for an exemption from parts of the instruction which they perceive to be the practice of another religion or adherence to another philosophy of life, the pupils shall be granted exemption after the parents have explained what it is they consider to have such an effect in the instruction. Parents whose notification to the school regarding exemption is not upheld are entitled to appeal against the municipal administrative decision to the National Education Office in the county concerned. The appeal shall be sent through the school, which is thereby given the opportunity to reverse its administrative decision. ’ The Ministry enlarged on the requirement of grounds in Circular F-03-98 dated 12 January 1998, page 3: ‘ The Ministry ’ s basic rule is that when parents apply for an exemption from activities that are clearly religious, exemption ( partial exemption) shall be granted. In such cases, the parents are not required to give any grounds. In the case of applications for exemption from activities that are not clearly religious, more must be required as regards the parents ’ grounds. Such cases are not covered by the main rule as to what exemptions may be applied for. Moreover, the travaux préparatoires make provision for an assessment of whether there are reasonable grounds on which to request an exemption. Reference is made to Recommendation no. 95 (1996- 97) to the Lagting [smaller division of Parliament] in which it is stated: “ The majority is of the opinion that pupils shall be exempted from such parts of the instruction at the individual school as, on the basis of their own religion or own philosophy of life, it is reasonable to perceive as the practice of another religion or adherence to another philosophy of life. ” However, account must be taken of the fact that many parents consider issues relating to faith and philosophies of life to lie within the realm of private life. The right to private life is also protected by international conventions. ’ The Ministry then reviews examples of areas from which pupils may be exempted and states on page 4: ‘ The religious and philosophical convictions of parents shall be respected in the entire Curriculum provided by the school. This means that the rules for exemption apply to all compulsory education. In general, the issue that must be assessed by the school is whether the Curriculum in practice is liable to influence pupils to adopt a specific faith or philosophy of life, or may otherwise be perceived as participation in religious activity or adherence to a philosophy of life. In specific terms, this may, for instance, have significance with regard to dance classes organised as part of Physical Education; dancing with a partner is incompatible with the faith of some persons, while movement to music is acceptable. In the Arts and Handicraft subject, it will be necessary to exercise caution as regards illustrations of God and the prophets; see the discussion of “ Illustrations – ban on images ” in the Guide to the KRL subject (p. 22). ’ I will add that in connection with the evaluation of the KRL subject, the Ministry emphasised the importance of changing the content, methodology and organisation of the subject to ensure that as many children and young people as possible could participate in the whole subject. The reason the Ministry nevertheless decided to maintain the limited right of exemption was to be certain that the rights of parents and freedom of religion were safeguarded satisfactorily, and that they were exercised in a way that found understanding; see page 51, first column, of Report no. 32 (2000-01) to Parliament. I note that the right to exemption from all or parts of the compulsory Curriculum in the KRL subject in primary and lower secondary schools will result in a difference between parents in relation to the school system. Parents and pupils who wish to apply for an exemption must follow the Curriculum closely and apply for an exemption when they consider exemption to be necessary in order to safeguard the rights of the child and their own rights. The school initially decides whether to grant an exemption. The question is whether this difference in treatment is in pursuit of a legitimate aim and whether the aim is proportionate to the means employed. According to the practice of the European Court of Human Rights, as mentioned earlier, Article 2, second sentence, of Protocol No. 1 has been interpreted as meaning that the convictions must attain a certain level of cogency, seriousness, cohesion and importance ( see the Court ’ s judgments in Campbell and Cosans v. the United Kingdom ( 25 February 1982, § 36, Series A no. 48 ) and Valsamis [(cited above], § 25) ). The statements in these judgments support the requirement by the States Parties that parents provide somewhat more detailed grounds when the activity from which they are applying for an exemption does not immediately appear to be practice of a specific religion or adherence to a different philosophy of life. If an applicant must give detailed information about his or her own religion or philosophy of life, however, this may be a violation of Article 8 of the Convention and Article 17 of the ICCPR regarding the right to respect for private life and possibly also Article 9 of the Convention and Article 18 § 1 of the ICCPR regarding freedom of religion. I underscore that differential treatment on the ground of religion and political or other opinions is the core of the prohibition against discrimination. As I have explained, the basic reason for introducing compulsory lessons in the KRL subject was that the government and a majority of Parliament considered it to be significant for the communication of a common foundation of knowledge, values and culture in primary and lower secondary school. The importance of an open, inclusive school environment was emphasised. Implementation of compulsory primary and lower secondary education must include a right to notify a desire to exercise the right to exemption, and in any event the application must state in general terms the parts of the Curriculum from which exemption is desired. It is clear to me that the common curriculum in the KRL subject and the requirement of a written application to exercise the right to an exemption are means of pursuing legitimate aims, and that it is not a disproportionate measure to require that parents who wish to apply for an exemption from parts of the subject must follow the Curriculum and give notification when they desire an exemption. I will add that this is contingent on the school authorities taking the necessary steps to enable parents to follow the Curriculum. The common, compulsory Curriculum requires that parents be kept well informed about the KRL subject and the programme and methods of the Curriculum at all times, and if appropriate be informed of other activities with a religious content. The parties have not gone into detail concerning the specific requirements regarding grounds and the grounds that are given in the various applications for exemption from the KRL subject. I shall therefore confine myself to declaring that there is no ground for assuming that a possible violation of the prohibition against discrimination in this case may have the consequence of invalidating the administrative decisions to deny full exemption from lessons in the KRL subject.” C. Petition by the parties to the above proceedings, and their children, to the Court and to the United Nations Human Rights Committee 43. On 15 February 2002 the applicant parents and children lodged their application under the Convention with the Court. 44. Subsequently, on 25 March 2002, four other sets of parents who had also been parties to the above -mentioned domestic proceedings lodged together with their respective children a communication (no. 1155/2003) with the United Nations Human Rights Committee under the Protocol to the 1966 International Covenant on Civil and Political Rights. 45. On 3 November 2004 the Committee rejected the respondent State ’ s objection that, as three other sets of parents had lodged a similar complaint before the Court, “the same matter” was already being examined by the latter. The Committee declared the communication admissible in so far as it concerned issues raised under Articles 17, 18 and 26 of the Covenant. As to the merits, the Committee expressed the view that the present framework of the KRL subject, including the regime of exemptions, as it had been implemented in respect of the complainants (“authors”), constituted a violation of Article 18 § 4 of the Covenant. The Committee reasoned as follows. “14.2. The main issue before the Committee is whether the compulsory instruction of the CKREE [ [1] ] subject in Norwegian schools, with only limited possibility of exemption, violates the authors ’ right to freedom of thought, conscience and religion under Article 18 and more specifically the right of parents to secure the religious and moral education of their children in conformity with their own convictions, pursuant to Article 18, paragraph 4. The scope of Article 18 covers not only protection of traditional religions, but also philosophies of life, such as those held by the authors. Instruction in religion and ethics may in the Committee ’ s view be in compliance with Article 18, if carried out under the terms expressed in the Committee ’ s General Comment No. 22 on Article 18: ‘ [A]rticle 18.4 permits public school instruction in subjects such as the general history of religions and ethics if it is given in a neutral and objective way ’, and ‘ public education that includes instruction in a particular religion or belief is inconsistent with Article 18, paragraph 4, unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians ’. The Committee also recalls its Views in Hartikainen et al. v. Finland, where it concluded that instruction in a religious context should respect the convictions of parents and guardians who do not believe in any religion. It is within this legal context that the Committee will examine the claim. 14.3. Firstly, the Committee will examine the question of whether or not the instruction of the CKREE subject is imparted in a neutral and objective way. On this issue, the Education Act, section 2-4, stipulates that: ‘ Teaching on the subject shall not involve preaching. Teachers of Christian Knowledge and Religious and Ethical Education shall take as their point of departure the object clause of the primary and lower secondary school laid down in section 1-2, and present Christianity, other religions and philosophies of life on the basis of their distinctive characteristics. Teaching of the different topics shall be founded on the same educational principles .’ In the object clause in question it is prescribed that the object of primary and lower secondary education shall be ‘ in agreement and cooperation with the home, to help to give pupils a Christian and moral upbringing ’. Some of the travaux préparatoires of the Act referred to above make it clear that the subject gives priority to tenets of Christianity over other religions and philosophies of life. In that context, the Standing Committee on Education concluded, in its majority, that: the tuition was not neutral in value, and that the main emphasis of the subject was instruction on Christianity. The State Party acknowledges that the subject has elements that may be perceived as being of a religious nature, these being the activities exemption from which is granted without the parents having to give reasons. Indeed, at least some of the activities in question involve, on their face, not just education in religious knowledge, but the actual practice of a particular religion (see para. 9.18). It also transpires from the research results invoked by the authors, and from their personal experience, that the subject has elements that are not perceived by them as being imparted in a neutral and objective way. The Committee concludes that the teaching of CKREE cannot be said to meet the requirement of being delivered in a neutral and objective way, unless the system of exemption in fact leads to a situation where the teaching provided to those children and families opting for such exemption will be neutral and objective. 14.4. The second question to be examined thus is whether the partial- exemption arrangements and other avenues provide ‘ for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents or guardians ’. The Committee notes the authors ’ contention that the partial- exemption arrangements do not satisfy their needs, since teaching of the CKREE subject leans too heavily towards religious instruction, and that partial exemption is impossible to implement in practice. Furthermore, the Committee notes that the Norwegian Education Act provides that ‘ on the basis of written notification from parents, pupils shall be exempted from attending those parts of the teaching at the individual school that they, on the basis of their own religion or philosophy of life, perceive as being the practice of another religion or adherence to another philosophy of life ’. 14.5. The Committee notes that the existing normative framework related to the teaching of the CKREE subject contains internal tensions or even contradictions. On the one hand, the Constitution and the object clause in the Education Act contain a clear preference for Christianity as compared to the role of other religions and worldviews in the educational system. On the other hand, the specific clause on exemptions in section 2-4 of the Education Act is formulated in a way that in theory appears to give a full right of exemption from any part of the CKREE subject that individual pupils or parents perceive as being the practice of another religion or adherence to another philosophy of life. If this clause could be implemented in a way that addresses the preference reflected in the Constitution and the object clause of the Education Act, this could arguably be considered as complying with Article 18 of the Covenant. 14.6. The Committee considers, however, that even in the abstract, the present system of partial exemption imposes a considerable burden on persons in the position of the authors, in so far as it requires them to acquaint themselves with those aspects of the subject which are clearly of a religious nature, as well as with other aspects, with a view to determining which of the other aspects they may feel a need to seek – and justify – exemption from. Nor would it be implausible to expect that such persons would be deterred from exercising that right, in so far as a regime of partial exemption could create problems for children which are different from those that may be present in a total exemption scheme. Indeed as the experience of the authors demonstrates, the system of exemptions does not currently protect the liberty of parents to ensure that the religious and moral education of their children is in conformity with their own convictions. In this respect, the Committee notes that the CKREE subject combines education on religious knowledge with practising a particular religious belief, e.g. learning by heart of prayers, singing religious hymns or attendance at religious services (para. 9.18). While it is true that in these cases parents may claim exemption from these activities by ticking a box on a form, the CKREE scheme does not ensure that education of religious knowledge and religious practice are separated in a way that makes the exemption scheme practicable. 14.7. In the Committee ’ s view, the difficulties encountered by the authors, in particular the fact that Maria Jansen and Pia Suzanne Orning had to recite religious texts in the context of a Christmas celebration although they were enrolled in the exemption scheme, as well as the loyalty conflicts experienced by the children, amply illustrate these difficulties. Furthermore, the requirement to give reasons for exempting children from lessons focusing on imparting religious knowledge and the absence of clear indications as to what kind of reasons would be accepted creates a further obstacle for parents who seek to ensure that their children are not exposed to certain religious ideas. In the Committee ’ s view, the present framework of CKREE, including the current regime of exemptions, as it has been implemented in respect of the authors, constitutes a violation of Article 18, paragraph 4, of the Covenant in their respect.” In view of this finding, the Committee was of the opinion that no additional issue arose under other parts of Article 18 or Articles 17 and 26 of the Covenant. It gave the respondent State ninety days within which to provide “information about the measures taken to give effect to the Committee ’ s Views ”. D. Follow-up measures 46. In the light of the United Nations Human Rights Committee ’ s “Views ”, the Norwegian government decided to take measures to modify the KRL subject, and notably to propose changes to the Education Act 1998 and the Curriculum. According to Circular F-02-05, this included the following elements. (i) Deleting in section 2-4(3) the reference to the Christian object clause in section 1-2. (ii) Giving the various religions and philosophies of life the same qualitative description in the aims of the subject, while maintaining the current proportions of various religions and philosophies of life in the central teaching material. (iii) Making the provision on partial exemption in current section 2-4 (4) the subject of a separate provision, ensuring that the exemption arrangement take sufficient account of the parents ’ rights and the need to protect minorities; simplifying the provisions on applications for exemption; specifying in the Act the obligation of schools to provide information and circulating information to schools about the practice of the exemption arrangement. (iv) Drawing up a new curriculum making a clear division between those elements that could be viewed as the practice of religions and those elements that could not, while maintaining the distribution between the different parts of the subject. (v) Emphasising the choice of working methods in the introduction to the Curriculum and in the guidelines for the subject, in order to limit the possibility that parts of the teaching could be experienced as the practice of a religion. Varied and engaging working methods should contribute to the dissemination of all aspects of the subject. It was emphasised that working methods that could be perceived as being close to the practice of a religion required special care on the part of teachers, including the provision of adapted teaching. (vi) The proposed changes would be implemented from the school year 2005/ 06. The introduction of the measures from autumn 2005 generated the need for strengthening the skills and competence of the teachers. The government would commence the work of developing skills and competence as soon as a new curriculum had been finalised. (vii) A high degree of flexibility should be displayed in relation to parents ’ wishes for adapted teaching for their child/children. If necessary, the option of full exemption on a temporary basis should be available for those parents who so wished pending implementation of the proposed permanent arrangements. On the basis of the government ’ s decision, the Ministry started reviewing the necessary changes. Following proposals by the Ministry on 29 April 2005, endorsed by the government on the same date ( Ot.prp.nr.91 (2004 ‑ 05) ), on 17 June 2005 Parliament adopted certain amendments and additions to the Education Act 1998 which came into force with immediate effect. As a result, a few adjustments were made to section 2-4(1) (notably, the word “faith” was replaced by “understanding of Christianity”; the requirement of thoroughness was extended to knowledge of other Christian communities) and the reference in section 2-4(3) to the object clause in section 1-2 was deleted (see paragraph 23 above). Moreover, the provisions on partial exemption in section 2-4 (4) were moved to a new and separate section 2-3A, with some clarifying additions and changes. This included, inter alia, replacing the expression “religious activities” (in former section 2-4(4)) with the word “activities” and extending the ground for partial exemption to cover also activities that the parents, from the point of view of their own religion or philosophy of life, perceived as being offensive or insulting (in addition to those that they perceived as amounting to the practice of another religion or adherence to another philosophy of life). | In 1997 the Norwegian primary school curriculum was changed, with two separate subjects – Christianity and philosophy of life – being replaced by a single subject covering Christianity, religion and philosophy, known as KRL. Members of the Norwegian Humanist Association, the applicants attempted unsuccessfully to have their children entirely exempted from attending KRL. Before the Court, they complained in particular that the authorities’ refusal to grant them full exemption prevented them from ensuring that their children received an education in conformity with their religious and philosophical convictions. |
35 | Education | The authorities’ findings in respect of the “Naim Frashëri” elementary school 2. The applicants live in Korça, a city in the southeast of Albania counting 76,000 inhabitants. According to local government data, during the 2018/19 academic year around 1,200 Roma and Egyptian children were enrolled in the city’s mandatory education system. 3. The Roma and Egyptian pupils in the “Naim Frashëri” elementary school in Korça during the 2012/19 academic years accounted for 89 to 100 % of the school’s pupils. As of 2012 the Government have implemented a food assistance programme whereby food packages have been provided to Roma and Egyptian pupils attending that school with the aim of increasing school attendance rates of the children of those communities. The children applicants attended that same school. 4. In a general recommendation of 11 September 2014, the Commissioner for the Protection from Discrimination (the “Commissioner” or “Commissioner against Discrimination”), a domestic body established by the Anti ‑ Discrimination Act (Law no. 10221 of 4 February 2010) recommended to the Ministry of Education and Sport (“Ministry”) to have due regard of the ratio between Roma/Egyptian and other pupils in schools and take measures to avoid creating schools attended only by pupils of the said communities. 5. On 3 July 2015 the ERRC lodged a complaint with the People’s Advocate, which is also an institution established to uphold the rights of citizens against public authorities, alleging that the over-representation of Roma/Egyptian pupils in the “Naim Frashëri” school amounted to segregation. Having considered the matter and having heard the Ministry’s position that the over-representation in question was an unintentional effect of the food assistance programme, on 12 August 2015 the People’s Advocate recommended to the Ministry to take proactive actions to end the discrimination of the said pupils. In addition, the People’s Advocate also recommended that the Ministry establish a mechanism for monitoring the implementation of desegregation measures in all schools. 6. Following a similar complaint by the ERRC and another organisation, to which the Ministry responded once again that the over-representation complained of was unintentional, on 22 September 2015 the Commissioner against Discrimination delivered a binding decision finding that the Roma and Egyptian children of the “Naim Frashëri” school were suffering indirect discrimination on account of their over-representation in the school. 7. Relying on Article 18 of the Constitution which prohibits discrimination (see paragraph 17 below) and the Court’s judgment in the case of Lavida and Others v. Greece (no. 7973/10, 30 May 2013), the Commissioner found that the placement of Roma pupils in a special school segregates them and does not allow for their integration into mainstream social activities. Moreover, noting that the Ministry was the public body responsible for admissions at the school, the Commissioner pointed out that under Section 7 (1) of the Anti-Discrimination Act (see paragraph 23 below) both actions and inactions that gave rise to a breach of the equality between persons could amount to discrimination. Finally, the Commissioner noted that under Section 18 (1) of the Anti-Discrimination Act (see paragraph 24 below) the Council of Ministers and the Ministry were under an obligation to take positive measures against discrimination related to the right to education. 8. Accordingly, the Commissioner ordered the Ministry to take “immediate measures to improve the situation and change the ratio” between Roma/Egyptian and other pupils attending the school. Implementation of the Commissioner’s decision 9. On 14 December 2015 the Ministry informed the Commissioner that it would implement several desegregating measures in the school, including the expansion of the food assistance programme to pupils from all communities and to four additional schools in the area, followed by the merger of the “Naim Frashëri” school with three local schools. 10. On 22 February 2017 the Government expanded the food support programme to all the pupils of the “Naim Frashëri” school (Decision of the Council of Ministers no. 132 of the same date). 11. On 14 April 2017 the Ministry informed the ERRC that the school continued to be attended almost exclusively by Roma and Egyptian pupils. They further explained that as the academic year was ongoing, it was inappropriate to implement the merger between different schools at that time and assured them that at the beginning of the new academic year in September, the segregation in the school would come to an end. In addition, the Ministry stated that they would request the competent authorities to organise the renovation of the school. 12. The renovation work was carried out during the 2018/19 academic year and was completed in September 2019. 13. On 6 November 2019 the Government submitted before the Court that for the 2019/20 academic year the Roma/Egyptian pupils accounted for 90% of the pupils at “Naim Frashëri” school. 14. On 25 February 2020 the Ministry informed the State Attorney that the percentage of Roma/Egyptian pupils at the school was 60%. They also stated that the merger of the school with neighbouring schools had not been implemented due to the school’s renovation work. 15. The applicants contested the above figure and submitted that in reality many non-Roma/Egyptian pupils had been administratively registered in the “Naim Frashëri” school, but in fact attended other nearby schools. Other events 16. On 16 December 2015 the Commissioner delivered a decision finding that the “Avdyl Avdia” elementary school in Berat was attended exclusively by Roma pupils which amounted to discrimination contrary to the Anti-Discrimination Act. She accordingly ordered the Ministry to arrange for the transportation and attendance of the school’s pupils to another nearby school. In its correspondence of 14 April 2017 to the ERRC (see paragraph 11 above), the Ministry stated that the “Avdyl Avdia” school had been closed in line with the Commissioner’s decision and the transportation arrangements were being addressed by the relevant municipality. | The applicants, Albanian nationals of Roma and Egyptian ethnic origin forming different households, complained of discrimination and segregation in their children’s education owing to the over-representation of Egyptian and Roma pupils in the “Naim Frashëri” elementary school in Korça which their children attended. They submitted that they had complained to the authorities concerning that situation and that the Commissioner for the Protection from Discrimination had subsequently ordered that the Ministry of Education and Sport take “immediate measures to improve the situation and change the ratio” between Roma/Egyptian and other pupils attending the school”. The applicants alleged that the situation has not been resolved. |
828 | Removal of / Limitations on legal capacity and right to vote | 2. The applicant was born in 1975 and lives in Sofia. He was represented by Mr K. Kanev, the chairman of the Bulgarian Helsinki Committee, a non ‑ governmental organisation based in Sofia. On 15 January 2016 the then President of the Fifth Section gave Mr Kanev leave to represent the applicants in all pending and future cases in which he had been appointed to personally act as their representative (Rule 36 § 4 (a) in fine of the Rules of Court). 3. The Government were represented by their Agent, Ms I. Stancheva ‑ Chinova of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In his initial application, the applicant submitted that in 1999, he had been diagnosed with psychiatric disorders; the Government have not disputed those facts. On the basis of that diagnosis, on 12 May 2000 the Sliven Regional Court had placed him under partial guardianship. That measure had attracted, among other restrictions, the application of Article 42 § 1 of the Constitution (see paragraph 13 below) to the applicant, excluding him from the right to vote. The underlying court decision had held that the applicant’s health condition did not allow him to take good care of himself and that he was occasionally aggressive, but that the situation was not too serious. 6. Furthermore, the following facts have been submitted by the Government in their observations, as well as by the applicant in reply, in respect of the present proceedings. 7. On 4 November 2015, the applicant lodged an application with the Ruse Regional Court for the restoration of his legal capacity, through the services of a lawyer authorised by him and his guardian. In the proceedings that followed, on 15 February 2016 the court noted that the application had been lodged by the applicant’s guardian and terminated the proceedings on this ground. According to the applicable law, the applicant could only be a respondent in such proceedings; therefore, the guardian should have submitted an address for the applicant, in order that he might be summoned in that capacity. As no such address was submitted to the court, the proceedings could not continue. Following an appeal by the applicant, on 4 May 2016 the Veliko Tarnovo Court of Appeal upheld the first-instance court’s decision. 8. On 19 May 2016, the applicant lodged a request for leave to appeal with the Supreme Court of Cassation, arguing that he had been denied free and direct access to a court, in contravention of the Convention. The Supreme Court of Cassation quashed the decision because the proceedings in question had been terminated, and remitted the case to the Ruse Regional Court for those proceedings to be reopened. 9. On 19 October 2016, Ruse Regional Court terminated the proceedings again, reasoning that the applicant’s guardian, considered as a claimant, had failed to comply with the court’s instructions to specify the respondent in the case and to provide an address at which he could be summoned. 10. On 24 January 2017, the President of the Republic of Bulgaria scheduled parliamentary elections, to be held on 26 March 2017. The applicant was unable to participate, owing to the fact that he had been declared legally incapable. 11. Between 2014 and February 2017, the applicant’s guardian has been changed twice, for logistical reasons. 12. On 17 May 2017, the applicant lodged a fresh application with the Sofia City Court for the restoration of his legal capacity. On 7 December 2017, the Sofia City Court gave a judgment restoring legal capacity to the applicant and lifting his guardianship considering that the applicant was able to manage his own affairs and interests and to realise the consequences of his own acts. | The applicant in this case complained that he had been unable to exercise his voting rights during the 2017 parliamentary elections in Bulgaria. His right to vote had been automatically withdrawn, in line with the Constitution, when he had been placed under partial guardianship owing to psychiatric issues in 2000. The applicant submitted that his automatic disenfranchisement on account of his being under partial guardianship and without an individual judicial assessment had been disproportionate. In his view, the exclusion of disabled people, including those suffering from mental disorders, from the possibility to vote in elections contravened international standards. |
1,076 | Prohibition of discrimination (Article 14 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicant Church has a worldwide membership of over 12 million people, known as Mormons, of whom approximately 180,000 live in the United Kingdom or the Republic of Ireland. Local church congregations are called wards, typically consisting of between 100 and 500 members, and are presided over by a local bishop. Each ward meets in a local chapel. Five to 15 wards constitutes a stake. In each stake one of the larger chapels is designated as a stake centre, where meetings from members of all the wards in the stake can take place. 7. In addition, the applicant Church has two temples in the United Kingdom: one in London and one in Preston, Lancashire. The temple is considered, by the applicant Church ’ s members, to be the house of the Lord and one of the holiest places on earth. Ceremonies or “ordinances” held at the temple carry profound theological significance to Mormons, who believe as a tenet of their faith that only the worthy may be admitted. Only the most devout members of the applicant Church, who hold a current “recommend”, are entitled to enter the temples. This is explained in the applicant ’ s published statement of doctrine: “WORTHY TO ENTER You must possess a current recommend to be admitted to the temple ... Only those who are worthy should go to the temple ... The interview for a temple recommend is conducted privately between the bishop and the Church member concerned. Here the member is asked searching questions about his or her personal conduct, worthiness and loyalty to the Church and its officers. The person must certify that he is morally clean and keeping the Word of Wisdom, paying a full tithing [approximately 10% of income to be paid to the Church], living in harmony with the teachings of the Church and not maintaining any affiliation or sympathy with apostate groups ... THE PROCESS OF OBTAINING A TEMPLE RECOMMEND IS A BLESSING” The standards required in order to be granted a recommend include honesty, eschewing abusive conduct, attention to family duties, marital fidelity, the adoption of healthy lifestyle practices and, for divorcees, full compliance with support orders and other legal obligations. 8. The present application concerns the temple at Preston, where congregational services are attended by on average 950 people a week. Under the Local Government Finance Act 1988, a valuation officer must compile and maintain a local rating list for his or her area. Premises included on the list are liable for the payment of business rates. Premises used for charitable purposes are entitled to charity business rates relief, which cuts the amount of rates payable by 80%. Places of “public religious worship” are wholly exempt from the tax. In 1998 the Preston temple was listed as a building used for charitable purpose and therefore retained a liability to pay only 20% rates, but it was refused the statutory tax exemption reserved for places of “public religious worship”. The valuation officer accepted that the stake centre on the same site, with its chapel, associated hall and ancillary rooms, was a “ place of public religious worship” which was entitled to exemption. Other buildings on the site, for example a building providing accommodation for missionaries and various ancillary buildings were subject to full business rates. For the financial year 199 9 / 2000, the applicant paid a total of GBP 117,360 in respect of all the rateable buildings on its Preston site. 9. On 5 March 2001 the applicant applied to have the temple removed from the rating list, claiming the benefit of the exemption for places of “public religious worship”. On 21 October 2004 the Lancashire Valuation Tribunal granted the application for appeal and determined the temple to be exempt under the statutory provision. On 14 December 2005 the Lands Tribunal overturned that decision. The applicant ’ s appeal to the Court of Appeal was dismissed on 24 November 2006. The applicant then appealed to the House of Lords. 10. The applicant did not raise any arguments under the Convention before the Valuation Tribunal, the Lands Tribunal or the Court of Appeal. However, with the House of Lords ’ permission, upon their granting leave to appeal, the applicant argued that the legislation in question was incompatible with its rights under Article 9 of the Convention and Article 1 of Protocol No. 1, both taken alone and in conjunction with Article 14. 11. On 30 July 2008 the House of Lords unanimously dismissed the further appeal ( Gallagher (Valuation Officer) v. Church of Jesus Christ of Latter-day Saints [2008] UKHL 56) holding, on the basis of an earlier judgment ( Church of Jesus Christ of Latter-day Saints v. Henning [1964] AC 420), that as a matter of domestic law a place of “public religious worship” must be one that is open to the general public. Four of the five Law Lords further dismissed the applicant ’ s arguments under the Convention, holding that the liability to pay 20 % business rates on the Temple did not fall within the ambit of Article 9, since Mormons were still free to manifest their religion and since the statutory requirement to be open to the public applied equally to all religious buildings and did not target Mormons in particular. In the words of Lord Hoffmann, with whom Lords Carswell and Mance agreed: “13. In order to constitute discrimination on grounds of religion, however, the alleged discrimination must fall ‘ within the ambit ’ of a right protected by article 9, in this case, the right to manifest one ’ s religion. In the present case, the liability of the Temple to a non-domestic rate (reduced by 80% on account of the charitable nature of its use) would not prevent the Mormons from manifesting their religion. But I would not regard that as conclusive. If the legislation imposed rates only upon Mormons, I would regard that as being within the ambit of article 9 even if the Mormons could easily afford to pay them. But the present case is not one in which the Mormons are taxed on account of their religion. It is only that their religion prevents them from providing the public benefit necessary to secure a tax advantage. That seems to me an altogether different matter. 14. For example, I do not think that a Sabbatarian could complain that he was discriminated against because he was unable, on religious grounds, to provide services on the Sabbath and therefore earned less than people of a different religion. A case which in my opinion is very much in point is M v Secretary of State for Work and Pensions [2006] UKHL 11; [2006] 2 AC 91, in which a woman would have been able to secure a reduction in her liability for the maintenance of her child if she had been living with a male partner. She was unable to qualify because, on account of her sexual orientation, she chose to live with a female partner. The House of Lords decided that the alleged act of discrimination did not fall within the ambit of article 8 (her right to family life and in particular her right to live with a female partner) because loss of the opportunity to gain a financial advantage was too remote from interference with the right in question. The same seems to me true of this case. 15. Furthermore, I think that even if this can be regarded as a case of indirect discrimination, it was justified. Parliament must have a wide discretion in deciding what should be regarded as a sufficient public benefit to justify exemption from taxation and in my opinion it was entitled to take the view that public access to religious services was such a benefit.” Lord Hope of Craighead agreed with Lord Hoffmann and added: “31. ... I do not see this case falling within the ambit of article 9. Those who are qualified to worship in the Temple are not prevented from manifesting their religion or their belief by the fact that it is subject to non-domestic rating, the legislation is not directed at Mormons because of what they believe in. It applies generally to all whose religious beliefs and practices prevent them from participating in public religious worship. It is easier to see the case as falling within the ambit of article 1 of Protocol 1, but the second paragraph of that article preserves the right of the State to secure the payment of taxes or other contributions or penalties. In my opinion Parliament ’ s decision as to the scope of the exemption was within the discretionary area of judgement afforded to it by that paragraph. ... ” Lord Scott of Foscote, however, differed from the majority in his concurring opinion and found that the difference in treatment fell within the ambit of Article 9, although he considered that the Article was not violated: “49. Lord Hoffmann and Lord Hope have expressed the view that the withholding of rating relief from the Temple does not fall within the ambit of article 9. I am uneasy about that conclusion because it is well settled that an allegedly discriminatory act said to be in breach of article 14 does not need to constitute an actual breach of the substantive article within whose ambit the act in question is said to fall. It needs simply to be within the ambit of the substantive article. The case-law as to when an act of discrimination, not being in breach of a particular substantive article, will sufficiently relate to that article in order to be capable of constituting a breach of article 14 does really no more than ask whether the act is within ‘ the ambit ’ of the article. There is no precise yardstick; the requirement is left inherently, and perhaps unsatisfactorily, flexible. It seems to me, however, that the levying of taxation on a place of religious worship, or on those who enter the premises for that purpose, would be capable in particular circumstances of constituting a breach of article 9 and, accordingly, that it is difficult to regard the levying of rates on such premises as otherwise than within the ambit of article 9. I would prefer, therefore, to examine the second issue on the footing that the withholding of rating relief from the Temple does fall within the ambit of article 9 for article 14 purposes. 50. If that is so, there is, as it seems to me, an element of discrimination that requires to be justified. The discrimination consists of the denial of rating relief for the Temple on the ground that, although a place of religious worship, it is not a place of public religious worship. No one who is not a Mormon, or who, although a Mormon, does not possess a ‘ recommend ’ permitting him or her entry, can enter the Temple .... The ‘ open doors ’ requirement in order to enable premises used for religious worship to qualify for rating relief discriminates, adversely to the Mormons, between premises used for religious worship that are open to the public and those that are not. If that is right, the discrimination requires to be justified if it is to escape being held unlawful. 51. I would, for my part, unhesitatingly hold that the grant of rating relief to premises for religious services that are open to the public and the withholding of that relief from premises for religious services which take place behind closed doors through which only a select few may pass is well justifiable and within the margin of appreciation available to individual signatory states. First, states may justifiably take the view that the practice of religion is beneficial both to the individuals who practise it as well as to the community of whom the individuals form part, and that, therefore, relief from rating for premises where religious worship takes place is in the public interest. But, second, states may also recognise that, although religion may be beneficial both to individuals and to the community, it is capable also of being divisive and, sometimes, of becoming dangerously so. No one who lives in a country such as ours, with a community of diverse ethnic and racial origins and of diverse cultures and religions, can be unaware of this. Religion can bind communities together; but it can also emphasise their differences. In these circumstances secrecy in religious practices provides the soil in which suspicions and unfounded prejudices can take root and grow; openness in religious practices, on the other hand, can dispel suspicions and contradict prejudices. I can see every reason why a state should adopt a general policy under which fiscal relief for premises used for religious worship is available where the premises are open to the general public and is withheld where they are not. In my opinion, the withholding of rating relief from the Temple does not constitute a breach of article 14, whether considered in the context of article 9 or, for the same reasons, in the context of article 1 of the 1 st Protocol.” | This case concerned the complaint of the applicant – a religious organisation, registered as a private unlimited company in the UK, part of the worldwide Mormon Church – of being denied an exemption from local property taxes. In 2001 the church applied to have its temple in Preston, Lancashire, removed from a list of premises liable to pay business tax, on the grounds that it was a “place of public religious worship” which was entitled to exemption from that tax. While a first-instance court decision granted the church’s claim, that decision was overturned in 2005. In a final decision of July 2008, the House of Lords dismissed the church’s appeal, holding in particular that the temple was not to be qualified as a “place of public religious worship”, since access to the temple was restricted to a select group of the most devout followers holding a special authorisation. |
561 | Dissolution or prohibition of political parties or associations | 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. ... ” | The applicant was the chair of the Hungarian Guard Association, founded in 2007 by members of a political party called Movement for a Better Hungary with the stated aim of preserving Hungarian traditions and culture. The association in turn founded the Hungarian Guard Movement with the objective, as defined in its charter, “to defend Hungary, defenceless physically, spiritually and intellectually”. In a court judgment eventually upheld in December 2009, the association was dissolved on account of rallies and demonstrations throughout Hungary organised by the movement, including in villages with large Roma populations, calling for the defence of ethnic Hungarians against so-called Gipsy criminality. |
983 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1984 and lives in Baku. A. Background 6. The applicant is a well-known civil society activist and human rights defender. He is the Chairman and one of the co-founders of Human Rights Club, a non-governmental organisation (NGO) specialising in the protection of human rights. Human Rights Club was established in December 2010 and has made several unsuccessful attempts to obtain State registration by the Ministry of Justice in order to obtain legal entity status under domestic law. The authorities ’ refusal to register Human Rights Club is the subject of another application pending before the Court (see application no. 27309/14 ). The applicant has collaborated with other NGOs in Azerbaijan on various projects. He is also a member of the Board of Directors of the Republican Alternative Civic Movement (REAL). 7. The applicant has been involved in the preparation of various reports relating to human rights issues in Azerbaijan. He has also been involved in promoting the adoption of a Parliamentary Assembly of the Council of Europe ( PACE ) report on political prisoners in Azerbaijan, and has been working on a consolidated list of political prisoners to be presented to the Council of Europe. He has been a speaker at Council of Europe and United Nations (UN ) events, and has submitted shadow reports to UN institutions. 8. The applicant also coordinated the Sing for Democracy campaign (later renamed Art for Democracy) during and after the Eurovision Song Contest 2012 in Baku, which aimed at drawing attention to human rights violations in Azerbaijan. 9. During the June 2014 session of the PACE the applicant presented a report on human rights violations in Azerbaijan at the Council of Europe. B. Criminal proceedings against the applicant and his remand in custody 10. In recent years a number of human rights activists, lawyers, politicians, journalists and other government critics have been arrested and/or charged with various criminal offences. Those arrests generated wide publicity and were condemned by a number of international organisations, NGOs and prominent individuals (see, for example, paragraphs 83-84 below). 11. On 22 April 2014 the Prosecutor General ’ s Office instituted criminal proceedings under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of NGOs. 12. While the applicant was away in Kyiv from 6 to 11 July 2014 the Sabail District Court ordered a freezing injunction in respect of his bank accounts on 7 July 2014. 13. On 29 July 2014, while travelling by train from Baku to Tbilisi, the applicant was stopped during checks at the Azerbaijani-Georgian border. He was informed that he could not leave the country because a travel ban had been imposed on him on 25 July 2014. 14. On 31 July 2014 the applicant was invited to the Prosecutor General ’ s Office, where he was questioned as a witness in connection with the above-mentioned criminal proceedings (see paragraph 11 above). 15. On 31 July and 1 August 2014 searches were conducted at Human Rights Club, and a number of documents, mainly related to book-keeping and finance, were seized. 16. On 2 August 2014 the applicant was again invited to the Prosecutor General ’ s Office for questioning as a witness. On his arrival at the premises he was arrested and formally charged under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code. The description of charges consisted of a single sentence which was one page long. In particular, it was noted that since June 2010 the applicant, as co-founder and Chairman of Human Rights Club, an “organisation lacking State registration”, and as a project manager in an NGO named International Cooperation of Volunteers, had received a number of grants from the United States of America ’ s National Endowment for Democracy (NED), various branches of the Open Society Institute Assistance Foundation (OSIAF), Norway ’ s Stiftelsen Fritt Ord and other donor organisations, pursuant to relevant grant agreements. He was accused of acquiring profit, “by paying money to himself and other people involved in the projects in the guise of salaries and service fees” in the amount of 147,900.85 Azerbaijani new manats (AZN), having acquired that money through, “illegal entrepreneurial activity in respect of grants which, as an official, he had failed to register with the relevant executive authority, even though he had a professional obligation to do so ”. He was also accused of avoiding payment of taxes under Articles 218, 219 and 220 of the Tax Code in the amount of AZN 6,162 .24, thus causing, “ significant damage to State interests protected by law, bringing about grave consequences”. 17. On the same day, 2 August 2014, the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor ’ s application for the preventive measure of remand in custody, ordered the applicant ’ s detention for a period of three months. The court justified the decision as follows: “Taking into account the gravity of the criminal offences of which the applicant is accused and the possibility of him disrupting the normal course of the investigation by unlawfully influencing people involved in the proceedings or absconding from the investigation if he remains at liberty, the court considers that the preventive measure of remanding him in custody must be applied in his case .” 18. On 4 August 2014 the Prosecutor General ’ s Office made a public statement which noted that the applicant had been charged under Articles 192.2.2, 213.1 and 308.2 of the Criminal Code because there was a suspicion that he had committed the criminal offences set out in the above ‑ mentioned Articles. 19. On 4 August 2014 the applicant appealed against the detention order. He argued that there was no “reasonable suspicion” that he had committed a criminal offence, and that his detention was a punishment for carrying out activities which were protected by the Constitution. He further argued that the court had failed to provide any relevant reasons as to the applicability of grounds which could justify his detention. In particular, as to the risk of absconding, the applicant pointed out that the factual circumstances indicated that there was no such risk. He submitted that he had cooperated with the investigating authorities from the very beginning by appearing for questioning and producing documents whenever he had been required to do so, and that he had returned to the country from a trip to Kyiv knowing that he was under investigation. As to the risk of disrupting the investigation, the applicant argued that the existence of such a risk had not been substantiated. He argued that, on the contrary, he had given to the authorities originals of all documents which could be relevant to the investigation, and therefore was not in a position to tamper with the evidence. 20. On 8 August 2014 the Baku Court of Appeal upheld the detention order of 2 August 2014 without addressing any of the applicant ’ s arguments. 21. On 19 August 2014 the applicant applied to the Nasimi District Court, requesting the substitution of remand with either house arrest or release on bail. Among other things, the applicant highlighted the factual circumstances which supported his argument for less restrictive measures, including the fact that he had returned to the country from Kyiv knowing that he was under investigation and had complied with all orders to produce documents and appear for questioning, and that he, as a human rights defender, was a respected public figure with strong ties to the community. 22. On 20 August 2014 the Nasimi District Court rejected his application, finding that the grounds justifying his detention, as specified in its decision of 2 August 2014, “had not ceased to exist”. 23. On 22 August 2014 the applicant appealed, reiterating his arguments in detail. On 28 August 2014 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 20 August 2014. 24. On 23 October 2014 the Nasimi District Court extended the applicant ’ s pre-trial detention by three months ( to 2 February 2015), finding that the grounds justifying his continued detention, “had not ceased to exist”. 25. On 24 October the applicant appealed, reiterating his previous arguments. 26. On 29 October 2014 the Baku Court of Appeal dismissed the appeal, upholding the extension decision of 14 March 2013 and providing the same reasoning as the first-instance court. 27. On an unspecified date in December 2014 the applicant applied to the Nasimi District Court, requesting the substitution of remand with house arrest. On 10 December 2014 the Nasimi District Court rejected his application, finding that the grounds justifying his detention, as specified in its decisions of 2 August and 23 October 2014, “had not ceased to exist”. 28. On 12 December 2014 the applicant appealed against the Nasimi District Court ’ s decision of 10 December 2014, reiterating his arguments in detail. On 19 December 2014 the Baku Court of Appeal dismissed the appeal. 29. No further decisions extending the applicant ’ s detention are available in the case file. 30. On 12 December 2014 the Prosecutor General ’ s Office charged the applicant under Articles 179.3.2 (high-level embezzlement) and 313 of the Criminal Code, in addition to the original charges under Articles 192.2.2, 213.1 and 308.2 of the Criminal Code. The description of the allegations against him was slightly expanded, but essentially remained the same as that given on 2 August 2014 (see paragraph 16 above), with additional information alleging that the applicant had falsified various pieces of paperwork and minor contracts for services provided by a number of individuals (presumably in connection with various grant projects) and had not paid them in full as stipulated in the contracts. The new description of charges also included changes to the total amount of the alleged illegal profit obtained by the applicant (AZN 150,170.62) and the alleged amount of unpaid taxes (AZN 6,257.11). 31. The applicant ’ s criminal trial began in January 2015. On 16 April 2015 the Baku Court of Serious Crimes convicted him of all charges and sentenced him to six and a half years ’ imprisonment and deprivation of the right to hold official positions in State and local authorities and the right to engage in entrepreneurial activity for a period of three years. The conviction is not yet final and the appeal is pending. C. Statements by the grant donors 32. Enclosed with his submissions to the Court, the applicant included statements by NED dated 22 October 2014, by the Royal Norwegian Embassy in Baku dated 19 November 2014, by the British Embassy in Azerbaijan dated 12 December 2014, by People In Need dated 12 January 2015, by OSIAF dated 20 and 21 January 2015, by International Bridges of Justice dated 22 January 2015 and by the Fritt Ord Foundation dated 5 February 2015. 33. All of those statements, addressed “To whom it might concern ”, provided details of the relevant grants and donations awarded to the applicant or Human Rights Club, noted that the applicant had regularly provided the relevant donor with necessary accounting information concerning the expenditure of the funds, and specified that the donor organisations and embassies had every confidence that the funds had been used properly for the relevant projects and initiatives for which they had been awarded. 34. There is no indication in the case file that the above statements have been sought or taken into account by the prosecuting authorities. D. Statements by public officials and politicians from the ruling party concerning the applicant ’ s case and those of other arrested human rights activists 35. Before and after the applicant ’ s arrest, numerous articles about him were published in the State media and in the media allegedly close to the government. In those articles, he was described as a spy for foreign interests and “a traitor”. Moreover, a number of politicians from the ruling political party made similar comments about recently arrested NGO activists and human rights defenders in Azerbaijan, without specifically naming the applicant. The following are some examples of such comments. 36. In January 2012 Yeni Azerbaijan, the official newspaper of the ruling party, ran a piece entitled “New Target of National Traitors: Eurovision 2012”, which attacked the Sing for Democracy campaign coordinated by the applicant as a campaign against the interests of the country and stated the following: “ The blackmail and slander campaign of the Alliance to Protect Political Freedoms, Institute for Peace and Democracy, Institute for Reporters ’ Freedom and Safety, and Human Rights Club is based on ugly intentions which are evident from the names of these organisations. These organisations always orchestrate the ugly plans of several interested circles against Azerbaijan and act as mercenaries. The remote control of those who would do anything for money, who easily betray their country and State by launching a black smear campaign in exchange for foreign donations (donations obviously granted for meeting certain interests) is in the hands of those who give the money.” 37. Around the time of the applicant ’ s arrest and thereafter, the same newspaper and online news portals affiliated with the authorities published a number of pejorative articles calling the applicant an “American agent”, with headlines such as “American Agent Rasul Jafarov Detained for Three Months”, “The Rights of Rasul Jafarov, Another Agent, Limited”, and “Search of the Flat of American Agent Rasul Jafarov”. 38. On 14 August 2014 A.H., the Chairman of the Legal Policy and State Building Committee of the National Assembly, gave an interview to APA news agency where he commented on the reactions to the arrests of Ms Leyla Yunus, Mr Intigam Aliyev and other human rights defenders and stated: “ ... it is those [international organisations ] which made them ‘ well known ’. The organisations which have allocated grants to them in non-transparent ways, directing them into various activities, including those against Azerbaijan. These people, some of whom are traitors and some weak-minded, will finally answer before the law.” 39. On 15 August 2014 A.H., the Head of the Department of Social and Political Issues of the Presidential Administration, stated the following in an interview with Trend news agency: “The most deplorable thing is that such NGOs and individuals and some journalists, relying on foreign circles funding them, placed themselves above the national law, evaded registering their grant projects, filing financial statements, paying taxes and the government ’ s other legal requirements.” 40. In an interview published on 2 September 2014 Y.M., a member of parliament from the ruling party, who was also the Director of the Institute of History at the Academy of Sciences, stated the following in respect of the recently arrested NGO activists and human rights defenders: “People who betray their motherland cannot be forgiven. ... The death penalty should be imposed on such people. Capital punishment must be the gravest punishment for them. Why should traitors be forgiven? ... Therefore, the activities of a number of non-governmental organisations must be investigated very seriously, and if any illegality is discovered, such organisations must be immediately banned and their leaders punished.” 41. On 3 December 2014 State-owned news agencies published a sixty ‑ page manifesto written by R.M., the Head of the Presidential Administration, entitled “The World Order of Double Standards and Modern Azerbaijan”. The article accused human rights NGOs operating in the country of being the “fifth column of imperialism”. It postulated that various, mostly US-sponsored, donor organisations such as NED, as well as other foreign organisations, supported political opposition movements in various countries against national governments. For local human rights NGOs, the purpose of such funding schemes was the formation of a “fifth column” inside a country. US taxpayers ’ money was spent on preparing a change of political power or forcing existing governments to comply with US political demands. 42. According to the applicant, in various speeches given in 2014 the President of the State had stated that foreign criticism of the human rights situation in Azerbaijan had nothing to do with human rights, but was politically motivated, and that within the country there were “national traitors who had sold their conscience to foreign anti-Azerbaijani circles”. E. The applicant ’ s contact with his representative before the Court, Mr Bagirov 43. The applicant ’ s representative, Mr Bagirov, was an advocate and a member of the Azerbaijani Bar Association (“the ABA”). He was affiliated with Law Office no. 6 in Baku. 44. In November 2014 disciplinary proceedings were instituted against Mr Bagirov by the ABA on the basis of a letter dated 25 September 2014 from a judge of the Shaki Court of Appeal. In his letter, the judge informed the ABA that Mr Bagirov had breached the ethical rules of conduct for advocates at court hearings held in September 2014 before the Shaki Court of Appeal during criminal proceedings against I .M. 45. On 10 December 2014 the Collegium of the ABA held a meeting at which it considered the complaint against Mr Bagirov. Following the meeting, the Collegium of the ABA held that Mr Bagirov had breached the ethical rules of conduct for advocates because at the court hearing he had made the following remark about the judicial system, “Like State, like court ... If there were justice in Azerbaijan, Judge [ R.H. ] would not deliver unfair and partial judgments, nor would an individual like him be a judge” (“ Belə dövlətin belə də məhkəməsi olacaq ... Azərbaycanda ədalət olsaydı, hakim [ R.H. ] ədalətsiz və qərəzli hökm çıxarmaz, nə də onun kimisi hakim işləməzdi ”). On the same day the Collegium of the ABA decided to refer Mr Bagirov ’ s case to a court, with a view to his disbarment. It also decided to suspend his activity as an advocate ( vəkillik fəaliyyəti ) pending a decision by the court. 46. It appears from documents submitted to the Court that, following Mr Bagirov ’ s suspension as an advocate, the domestic authorities stopped allowing him to meet the applicant in prison. 47. On 29 March 2015 Mr Bagirov sent a letter to the Head of the Prison Service of the Ministry of Justice asking for a meeting with six of his clients who were held in detention, including the applicant. He specified in his letter that he was representing those individuals before the Court, and requested a meeting with them in connection with their pending cases. The relevant part of the letter reads: “I am writing to inform you that I represent the following individuals, who are detained in the penal facilities and temporary detention centres under your authority, before the European Court of Human Rights. I ask you to allow a meeting with these individuals in connection with the progress of their cases based on their applications lodged with the European Court (the numbers of which are stated below) : ... 6. Jafarov Rasul Agahasan oglu ( Baku Detention Facility, application no. 69981 /1 4 ) Attachment: Copies of letters from the European Court and the Azerbaijani government concerning these individuals .” 48. A copy of the letter was also sent to the Head of the Serious Crimes Department of the Prosecutor General ’ s Office. 49. By a letter of 14 April 2015, the Deputy Head of the Prison Service refused to allow Mr Bagirov to meet the applicant in prison. The relevant part of the letter reads: “Your request for a meeting in the penal facilities and detention centres with the individuals detained in the penal facilities and with convicted inmates in order to provide them with advocacy services has been considered. In explanation, as your advocacy activity at Law Office no. 6 has been suspended by decision no. 29 of 10 December 2014 of the Bar Association of the Republic of Azerbaijan and you have been disbarred, and [as a result of the fact that] as of that date you can no longer practise as an advocate in court and investigation proceedings, it is impossible to grant you access to the penal establishments as counsel.” | The applicant, a well-known human rights defender, complained in particular that he had been arrested and detained without a reasonable suspicion that he had committed a criminal offence and that the national courts had failed to provide relevant and sufficient reasons justifying his continued detention. He also complained that the national courts had not properly addressed the arguments in favour of his release. Lastly, he complained that his Convention rights had been restricted for purposes other than those prescribed in the Convention. In particular, his arrest and detention had had the purpose of punishing him as a government critic, silencing him as a human rights defender, discouraging others from such activities, and paralysing civil society in the country. |
652 | Lawyers | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in Lunel. 6. The applicant, a lawyer at the Montpellier Bar since 1978, acted for M.B., who was a civil party in the context of a judicial investigation opened in Nîmes following the death of his minor son. The latter was killed on the night of 2 March 2003 by F.C., a gendarme who used his firearm. 7. In an indictment and partial discharge order of 26 June 2007 the investigating judge committed F.C. for trial before the Gard Assize Court on a charge of manslaughter. The investigating judge did not accept as justification either self-defence within the meaning of Articles 121 or 122 of the Criminal Code, or the use of firearms in accordance with the legislation or regulations under Article 174 of the Decree of 20 March 1903 ( see, as regards those provisions, Guerdner and Others v. France, no. 68780/10, §§ 37 and 41 et seq., 17 April 2014). The judge also committed two of F.C. ’ s colleagues for trial before the Assize Court for having lied in their statements to him, given under oath. 8. On 26 November 2007 the Investigation Division of the Nîmes Court of Appeal upheld the order but ordered that the two gendarmes charged with giving false testimony stand trial before the Nîmes Criminal Court rather than the Assize Court. 9. The trial at the Assize Court began on 28 September 2009 and lasted for five days. The advocate-general requested a five-year prison term for the accused. It is not clear from the information available to the Court whether or not the sentence was to be suspended. 10. In a judgment of 1 October 2009 the Assize Court acquitted F.C. 11. Immediately after the verdict, at the exit from the courtroom, the journalists reporting on the case for, among others, France Bleu, RTL and the Midi Libre put questions to the parties ’ lawyers, and in particular to the applicant. Some of the coverage was streamed live on the Internet. The applicant first stated as follows: “ ... the verdict is received by the victims and by the community to which they belong, it is patently obvious that this is disastrous in terms of social peace.” 12. Asked by one journalist whether it was a “licence to kill”, he replied as follows: “Well, I ’ m not sure you can say that. It ’ s not necessarily a licence to kill. It ’ s a refusal to face up to the reality in this country and to the existence of a two-speed society; not just a two-speed justice system, but actually a two-speed society at all levels. People are living in tower blocks cut off from city centres. For some, prosecution ends in conviction while others are acquitted. The entire social system needs to be revamped: we ’ ve turned into a real American-style society which is on the brink of civil war.” 13. When asked by an RTL journalist “But weren ’ t you expecting this verdict? Without really commenting on the verdict, weren ’ t you afraid this would happen? ”, the applicant made the following statement: “ Yes, of course. I always knew it was a possibility. With a white – all-white – jury on which not all communities are represented, combined with, let ’ s face it, a very weak prosecution and a trial that was conducted in an extremely biased fashion, the door was wide open for an acquittal, it ’ s no surprise.” 14. These last remarks were the subject of a letter from the Principal Public Prosecutor at the Montpellier Court of Appeal, dated 6 October 2009, to the chairman of the Montpellier Bar, seeking the latter ’ s opinion “in view of the outcry caused by this statement in judicial circles in Nîmes”. 15. On 1 December 2009, after the chairman of the Bar had found that the applicant ’ s remarks were not offensive and did not go beyond the bounds of free criticism of a court decision, the Principal Public Prosecutor informed him of his decision to initiate disciplinary proceedings against the applicant under Article 188 of the Decree of 27 November 1991 on the organisation of the legal profession (see paragraph 29 above). 16. On 11 January 2010 the applicant gave evidence to the rapporteur of the Montpellier Bar Council. In particular, he stressed the need to put his remarks in context, as this was a sensitive case that had led to rioting in the working - class district where the victim had lived. He highlighted the length of the investigation, the fact that the gendarme had not been held in pre-trial detention and the disjoinder of the proceedings for false testimony concerning members of the gendarmerie patrol present on the day of the events, as well as the tensions during the five days of the hearing before the Assize Court. He denied making an accusation of racial and xenophobic bias, arguing that he had merely noted the absence of certain communities making up the French nation, in whose name criminal justice was administered. He added that he had not targeted the Assize Court, the prosecution or the defence. 17. The President of the Assize Court and the advocate -general who had participated in the proceedings refused a request from the rapporteur to hear evidence. However, the rapporteur was able to hear evidence from one of the lawyers for the acquitted gendarme, Mr N.-P. The latter confirmed the atmosphere of heightened pressure and tension throughout the trial, which had also been experienced by the lawyers of the civil parties. He observed that when the verdict had been delivered there had been a tremendous outcry, with the cameramen rushing to capture the scene. All the lawyers had been very emotional and the applicant had no doubt used an unfortunate turn of phrase, intending only to point to the lack of representation of certain communities in the criminal - justice system. 18. In parallel, in a judgment of 1 March 2010, the Nîmes Criminal Court sentenced the other two gendarmes to a one-month suspended term of imprisonment and a fine of 1,000 euros (EUR) for giving false testimony under oath. The court noted in particular that the false statements had been repeated over time, including before the investigating judge, and had been liable to influence the judge ’ s decision in that they concerned essential circumstances pertaining to the charges or at least circumstances of relevance to the case. 19. On 19 March 2010 the rapporteur sent her disciplinary investigation report to the chairman of the disciplinary board, the chairman of the Bar and the Principal Public Prosecutor. 20. On 2 April 2010 the applicant was summoned to appear before the disciplinary board on the basis of Article 183 of the above-mentioned Decree of 27 November 1991 (see paragraph 29 below), “for having, in the public lobby outside the courtroom of the Nîmes Court of Appeal, seriously breached the essential ethical principles of the legal profession, and specifically those of discretion and moderation, by publicly making the following comments accusing the court and jury of racist and xenophobic bias”. “I always knew it was a possibility. With a white – all-white – jury on which not all communities are represented ..., the door was wide open for an acquittal, it ’ s no surprise.” 21. The disciplinary board of the Bar associations attached to the Montpellier Court of Appeal, sitting in plenary session, held its hearing on 21 May 2010. Reiterating his statements, the applicant relied in particular on Article 10 of the Convention, arguing that his remarks had been made in the context of the defence of his client ’ s interests as a civil party and within the ten-day period during which the Principal Public Prosecutor could appeal against the acquittal. 22. On 11 June 2010 the disciplinary board delivered its decision. It found that the applicant ’ s conduct had not been culpable and acquitted him. The disciplinary board considered that the remarks had to be placed in the dual context of the full statement and the circumstances in which they had been made. The words “a white – all-white – jury” had been supplemented by “ on which not all communities are represented”, and had not accused the jury of racial or xenophobic bias but, together with other factors, had stated the obvious truth that “ the social background of jurors contribute [d], even unconsciously and without their integrity and intellectual honesty being in question, to their decision, which necessarily ha [d] an element of subjectivity ”. The disciplinary board stressed that the statements had been devoid of personal animosity and had reflected “ ideas, opinions and information apt to contribute to a discussion or debate of public interest ... as part of a broader commentary on the decision of the Assize Court ... ”; this came “ within the scope of protection of the right to freedom of expression under Article 10 of the Convention ”. The disciplinary board further considered that the impugned statements had formed part of the defence of the interests of the applicant ’ s client, since only the Principal Public Prosecutor could appeal against the acquittal verdict. They had therefore been intended “ to stimulate a public debate apt to influence the Principal Public Prosecutor ’ s thinking ... and his decision whether or not to appeal against that verdict ”. Lastly, the disciplinary board noted that the statements had been “ made orally ... during an on-screen interview. In the interests of efficiency and given the brevity of the broadcasts and the speaking time, it [had been] necessary to use concise or even ‘ shocking ’ and caricaturised language ”. 23. The Principal Public Prosecutor appealed against the disciplinary board ’ s decision. He requested that the applicant be barred from practising for three to six months. 24. In his pleadings before the Court of Appeal the applicant argued that his remarks had been directed at the jury rather than at the reputation, integrity and intellectual honesty of its members (who, moreover, had not brought any proceedings against him), based on the sociologically indisputable fact that the jury did not represent the diversity of the entire national community although its decision necessarily involved an element of subjectivity. His role as a lawyer had not ended with the delivery of the verdict, since it was up to the Principal Public Prosecutor to decide whether to lodge an appeal. Lastly, the applicant regretted that the prosecutor had chosen to prosecute him for comments that formed part of a debate of public interest and were not contrary to public policy, rather than appealing against the acquittal decision as his client and the public had hoped. 25. The Court of Appeal held, in a judgment of 17 December 2010, that the facts constituted a breach of the duties of discretion and moderation. It found as follows: “ Outside the courtroom, lawyers are not protected by immunity [of judicial speech] and the appropriate degree of their freedom of speech is no longer assessed in relation to the requirements of the exercise of the rights of the defence, but only in relation to freedom of expression. ” The Court of Appeal noted that the statements had been made in public, inside the court building, but before the press and not in the course of judicial proceedings; at that juncture, the verdict had been known and the hearing was over. In the court ’ s view, the cries from the public at the end of the hearing had been directed at the justice system, and the applicant had had a duty to exercise caution. The Court of Appeal went on to find that, since all the members of the jury were French citizens, references to the colour of their skin did not relate to their social background or nationality but rather to their racial background. The term “white”, used in a repetitive and affirmative manner and without the intention to open a discussion or reflection on the matter, had racial connotations which cast aspersions and suspicion on the integrity of the jurors. The court further found as follows: “ As the members of the jury form part of the Assize Court, composed of three professional judges and nine lay jurors, this amounts to discrediting the entire court and consequently the judiciary itself, by disregarding the other three members of the Assize Court and especially the collegial spirit whose very purpose is to avoid bias and afford enhanced procedural guarantees. ” In the Court of Appeal ’ s view, the remarks did not form part of the exercise of the rights of the defence, in the absence of any mention of the possibilities of appeal against the decision of the Assize Court. “In view of the nature and degree of the offence”, the Court of Appeal imposed “the lightest possible disciplinary penalty – a warning” on the applicant. 26. The applicant lodged an appeal on points of law. In addition to the defence arguments already presented before the disciplinary body and the Court of Appeal, he argued that the latter had wrongly held that the statement had targeted the judiciary and the entire Assize Court, as the words “ ... combined with – let ’ s face it – a very weak prosecution and a trial that was conducted in an extremely biased fashion ... ” had not been mentioned in the indictment (see paragraphs 13 and 20 above). 27. The advocate-general at the Court of Cassation concluded in his opinion that the judgment should be quashed on the basis of Article 10 of the Convention. In particular, he stated that the remarks had not disclosed any attack or personal animosity but rather had constituted, in the immediate aftermath of a highly contested acquittal, an irrepressible outburst based on the factual observation of the jury ’ s composition and echoing more general debates within society. Among those debates he mentioned the courts ’ treatment of police officers implicated in criminal proceedings, stating as follows: “ We need only recall the judicial ramifications of two cases that caused a sensation and attracted widespread media coverage at the time of the proceedings resulting in the acquittal of gendarme C: [after] the pursuit and death of Zyed B and Bouna T in 2005 [triggered riots for weeks, the decision of the Paris Court of Appeal on 27 April 2011 to dismiss the case revived the debate], and the death of Ali Z in 2009. Following those events, in a report published on 2 April 2009, Amnesty International expressed concern about an increase in police violence and a lack of judicial action against the perpetrators. In addition to the ‘ low rate of prosecution of alleged perpetrators ’, according to the non-governmental organisation, there was a certain ‘ laxity ’ in the sentences imposed, leading to real impunity for the offences. ” 28. In a judgment of 5 April 2012 the Court of Cassation dismissed the applicant ’ s appeal in the following terms: “ Firstly, the complaint alleging that the disciplinary body exceeded the scope of its jurisdiction is inadmissible for failure to produce the indictment. Secondly, having stated explicitly that, outside the courtroom, lawyers were not protected by the immunity conferred by section 41 of the Law of 29 July 1881, the Court of Appeal found that the impugned remarks had racial connotations casting aspersions and suspicion on the integrity of the jurors and thus amounted to a breach of the duties of moderation and discretion. It provided a legal basis for its decision merely to issue a warning to the lawyer, without laying itself open to any of the other complaints raised in the ground of appeal.” | This case originated in the acquittal in 2009 of a gendarme who had killed a young man from a community of foreign origin, living in a working class neighbourhood, during a car chase in 2003. A few minutes after the verdict, in response to a question from a journalist, the applicant, a lawyer who had been representing the victim’s father, stated that the acquittal was not a surprise, given the ethnic composition of the jury, which was exclusively composed of “whites”. A Court of Appeal imposed a disciplinary penalty, namely a warning, finding that the lawyer had failed to comply with his professional ethical obligations of sensitivity and moderation. He complained that the penalty had amounted to an unjustified infringement of his right to freedom of expression. |
298 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 7. The facts of the case, particularly concerning events on or about 8 November 1993 when the gendarmes carried out an operation at Çitlibahçe, were disputed by the parties. The Commission, pursuant to former Article 28 § 1 (a) of the Convention, conducted an investigation with the assistance of the parties. The Commission heard witnesses in Ankara on 7 February 1997. These included the applicant; Avni Dulaş her son; and Emin Bulen, a villager. The Commission also had regard to the oral evidence given by witnesses on 3 and 4 July 1996 in the case of Çakıcı (see Çakıcı v. Turkey [GC], no. 23657/94, ECHR 1999-IV), which concerned the same operation. This included the testimony of İzzet Çakıcı, whose brother had disappeared after being taken into custody by the gendarmes; Remziye Çakıcı, a villager and spouse of the disappeared person; Fevzi Okatan, previously muhtar of the village; Ertan Altınoluk the gendarme commander of the operation; and Mehmet Bitgin, a villager. 8. The Commission’s findings of fact are set out in its report of 6 September 1999 and summarised below (Section A). The applicant accepts the Commission’s findings of fact. The Government’s submissions concerning the facts are summarised below (Section B). A. The Commission’s findings of fact 9. Çitlibahçe was in a district in which terrorist activity was intense in 1993. The PKK used to come to the village, holding meetings and taking food by force. The security forces made regular visits and operations were not uncommon. They told the villagers not to give food to the PKK. 10. The applicant, Avni Dulaş and Remziye Çakıcı all recalled an incident in July 1993 when villagers were forced by the security forces to pull up their tobacco crops. Although there was some disparity amongst the witnesses as to how this was done, the witnesses’ accounts were similar in stating that the tobacco crops were destroyed by order of the security forces. The gendarme commander who gave evidence before the Delegates denied that this occurred but recalled that he had destroyed hemp crops. The Commission did not make any finding in regard of this aspect as it was not the subject-matter of any specific complaint. 11. Shortly before 8 November 1993, PKK terrorists went to the village of Dadaş in the Hazro district and took away five teachers, the imam and the imam’s brother. All, save one of the teachers, were shot. The imam’s brother, though wounded, survived. 12. Following the discovery of the bodies of the teachers, the gendarmes at Hazro gathered information from their contacts and sources as to what had happened and who had been involved. They had descriptions of the villagers in the area who had been assisting the PKK in holding the group of teachers. On 8 November 1993, an operation, under the command of Lieutenant Altınoluk, was carried out by the Hazro gendarmes in Çitlibahçe, while gendarmes from Lice went to Bağlan nearby. 13. Concerning what happened during the operation at Çitlibahçe, the Commission’s Delegates had earlier found Lieutenant Altınoluk to be an evasive witness, with a volubly unhelpful response to questioning. They found a lack of sincerity in the way in which he drowned simple questions in long and complicated explanations, which were often contradictory and inconsistent. On the other hand, the Delegates had found that the villagers, Remziye Çakıcı, Fevzi Okatan and Mehmet Bitgin, who gave eyewitness accounts, were on the whole consistent and credible and that they were convincing in their demeanour and their response to questions. Their evidence was found to support the testimony of the witnesses heard in this case. In this regard, the Commission’s Delegates found the applicant to be a convincing witness, an elderly, simple and unsophisticated lady who was on the whole credible. Her oral testimony was largely consistent with the statement given by her to the Human Rights Association shortly after the incident. While there were some inconsistencies in her accounts, the Commission considered that they could be attributed to the applicant’s advanced years and the passage of time since the events in question. Her evidence accorded in essentials with that of her son Avni Dulaş and the villager Emin Bilen. 14. The Commission found that the Hazro gendarmes included Çitlibahçe in the operation since they intended to look for and take into custody Ahmet Çakıcı, who, as a person already under suspicion of involvement in PKK activities, would be likely to have information about the kidnap group that passed through the village. 15. When the gendarmes arrived at the village, early in the morning, they left their vehicles outside and entered. They gathered the men together in one place and the women in another. Ahmet Çakıcı had hidden. A search was carried out by the gendarmes, who also started setting fire to houses. Ahmet Çakıcı was found and taken into custody. He was last seen by the witnesses being taken by village guards and soldiers to the vehicles. 16. The applicant had gone into her house when she saw all the soldiers but had been forced to leave by the soldiers. They set fire to her house, which had seven rooms and was made of timber. The family stored provisions, crops and wheat inside and these, along with the furniture and other household goods, were destroyed. About fifty houses in the village were burned down. She stated that once they had caught Ahmet Çakıcı the gendarmes left. After the departure of the gendarmes, the village was left in ruins and villagers were forced to leave. 17. Having regard to the evidence as a whole, the Commission accepted the evidence of the applicant as regards its principal elements. It did not find the matters referred to by the Government as being indicative of bad faith or as materially undermining the credibility and reliability of the applicant and her witnesses, which its Delegates assessed in generally positive terms. While the Commission took note of the applicant’s age, its Delegates had not found any indication of mental infirmity that would cast doubt on her ability to give evidence. 18. The Commission found in conclusion that the applicant’s property, furniture and possessions were deliberately burnt and destroyed during an operation by security forces in the village of Çitlibahçe on 8 November 1993. This led to the evacuation of the village. The possessions burned included a fridge, television, kitchen utensils, household goods, and produce (including tobacco, wheat, barley, lentils, and winter provisions). 19. The applicant and other villagers went to Diyarbakır after the operation. Accompanied by her son and three or four other villagers, the applicant went to the Human Rights Association. She made a statement and thumbprinted it. 20. Sometime later, the applicant was summoned to a police station. In his evidence to the Delegates, her son, Avni Dulaş remembered that she had been summoned to the public prosecutor’s office in about the summer of 1995. He accompanied her there. She had been asked to make a statement. The public prosecutor read out of a file, stating that she had complained to Europe about Turkey. He told the Delegates that he thought the prosecutor was trying to put pressure on his mother. B. The Government’s submissions on the facts 21. The Government emphasised the terrorism which was prevalent in this region from the early 1990’s and created a public danger threatening the life of the nation. The PKK had killed thousands of innocent victims and exerted intolerable pressure on the local population. The operation in this case concerned an investigation into the kidnapping and killing of teachers and an imam. 22. The applicant had made no complaint to the public prosecutor about the alleged burning of her house and property by the gendarmes during the operation on 8 February 1993. She only made a statement to the public prosecutor when he summoned her after the case was communicated to the Government by the Commission. He issued a decision of non-jurisdiction, transferring the file to the Hazro governor. The Hazro Administrative Council began an investigation and found that her claims were unsubstantiated. 23. The Government submitted that the applicant’s various accounts, oral and written, were inconsistent and implausible, in particular the details purportedly noted down by the Human Rights Association in her application to the Commission. C. New material 24. On 11 May 2000, the Government submitted a copy of the statement taken by the Diyarbakır public prosecutor from the applicant via an interpreter on 10 October 1995. This had not been provided to the Commission. 25. According to the statement, thumbprinted by the applicant, the letter from the Ministry of Justice, the appended documents and the application to the Commission were read out to her through an interpreter and she was asked about them. She acknowledged that the thumbprint on the document was hers and that she did not remember who took the statement. As regarded the events, she could not remember the exact date but about two years before 20 or more army vehicles had come to Çitlibahçe, with soldiers and village guards. They rounded up the villagers and set fire to the houses. After the village burned down, she went to Diyarbakır. 26. The statement recorded that she was shown the application and letter of authority and asked about them. She stated the thumbprints were hers. She said that she thought her application was going to Ankara to claim her rights. She was illiterate and ignorant and did not know anything about European human rights. She made her statement to them as she thought this would get something done about the damage which she had suffered. She wanted the State to vindicate her rights. She did not want to start a case in Europe in the way that he <the public prosecutor> had explained and did not agree to foreign lawyers starting such a case. It was for the State to look after her rights. When she made a statement to the HRA, there had been a lot of people with her and they described the events also. The application which had been read out was accurate though and she had no complaints to make about the person who wrote it down. She had not started any court case in Hazro or Diyarbakır as she was poor and ignorant and did not know what to do. | The applicant submitted that in November 2003 gendarmes had carried out a search in her village and set fire to the houses, including hers. After the departure of the gendarmes, the village was left in ruins and villagers were forced to leave. According to the Turkish Government, the operation in this case concerned an investigation into the kidnapping and killing of teachers and an imam by the PKK (Kurdish Workers’ Party), a terrorist organisation. |
113 | Domestic violence / abuse | I. THE CIRCUMSTANCES OF THE CASE 8. The applicants, E., H., L. and T. were born in 1960, 1961, 1963 and 1965 respectively and live in Scotland. E., L. and T. are sisters and H. is their brother. A. The circumstances of the case 9. The applicants’ mother had six children by her husband. After the death of the applicants’ father in 1965, their mother cohabited with W.H. Two further children were born in that relationship. 10. The family, living in a local authority flat in Dumfries, were known to the social services of Dumfries and Galloway Regional Council (“the local authority”). The records provided by the Government show that they were principally concerned from 1970 onwards in relation to the mother’s severe financial difficulties. The mother suffered from bad health and it was noted in 1973 that when she had a broken arm she always kept one of the children off school (presumably to help in the home) and was likely to be summoned before the Education Sub-Committee. Problems with rent and electricity arrears were noted as recurring through 1975 and 1976, as well as continuing health difficulties suffered by the mother. An entry on August 1976 noted that the eight children were all happy though overcrowded and that there were no behavioural problems. 11. On 16 November 1976, it was recorded however that E., the first applicant, who had been causing concern as she had been staying out at night, was found semi-conscious at a nearby flat, having taken an overdose. It was noted that the mother was to take her to attend a psychiatric clinic. The medical notes recorded that E. complained that she disliked intensely her mother’s cohabitee W.H. who hit her, shouted and upset her so much that she ran away with intent to kill herself. 12. A social work report dated 25 November 1976 noted that the family consisted of six daughters and two sons living with their mother. W.H., the father of the two youngest children, was recorded as not cohabiting and the mother had stated that she would not marry him as she would be worse off financially. The state of the home was said to fluctuate according to the mother’s health but was considered to be adequately furnished with a warm, friendly atmosphere. The mother had always demonstrated a great deal of concern for her children and had perhaps overindulged them at times. In spite of the fact that there was much juvenile delinquency in the area, this was noted as being the first time that any of her children had given cause for concern. The mother’s ambivalent attitude to school attendance was commented on. 13. In December 1976, E. left school and the social services gave assistance in finding employment. 14. On 7 January 1977, L., the third applicant, then aged 13, ran away from home, following an incident in which she claimed that W.H. had attempted to rape her. She was referred as an emergency by the police to the social services. The police interviewed all the family. It is not apparent that the family, in particular the children, were interviewed by social workers concerning the implications of L.’s disclosures. No steps were taken to refer them to the Reporter of the Children’s Hearing. 15. On 7 January 1977, W.H. was arrested by the police and charged with indecently assaulting E. and L. 16. On 8 January 1977, W.H. entered a guilty plea concerning charges involving offences of indecent behaviour against E. and L. before Dumfries Sheriff Court. The pleas were accepted by the prosecution and the case proceeded on the basis that W.H. had committed one act of indecency against E. between 20 October 1972 and 31 August 1976, and two acts of indecency against L. between 1 January 1975 and 7 January 1977. The Sheriff requested the social services to prepare social enquiry and psychiatric reports. W.H. was not detained pending sentence. According to the applicants, he returned to live at the applicants’ home. 17. On 11 January 1977, the applicants stated that the police submitted a report to the children’s social worker, S., expressing concern that the children should be protected from further abuse. The Government have found no trace of any such report in existence. 18. On 28 January 1977, W.H. appeared before the Sheriff for sentencing. The social enquiry report dated 18 January 1977 stated inter alia that the family lived in a four room local authority flat in an area where there was a high incidence of social problems. The home was adequately furnished and maintained to a reasonable standard. The mother was described as a caring woman who did not enjoy good health but who put her childrens ’ interests first. The family was considered as appearing a happy well-adjusted group though they were well known to the social services as they had been given assistance from time to time. The children attended school regularly and appeared happily settled. W.H. was recorded as admitting the offence and as being more than ashamed of his conduct, though he could offer no explanation for these actions. It was noted that he did not appear to realise fully the serious nature of these charges. Since the alleged offence he had obtained accommodation outside the applicants’ home - it indicated an address in the same apartment block. It was further noted that the mother was not prepared to accept the charges relating to this man and stated that they had plans to marry in the Spring as they had had a close relationship for many years. It was concluded that, in view of the serious nature of the offences, it would be necessary for firm control to be exercised over the accused for a period of time. 19. The psychiatric report found that W.H. did not show any psychiatric abnormality. His criminal record showed one prior minor offence of dishonesty. 20. W.H. was sentenced by the Sheriff to two years’ probation. The applicants state that this was with a condition that he cease to reside at the applicants’ address. The Government have found no record of that condition attaching to the probation order and stated that the probation file cannot now be found. They accepted however that it was the social services’ responsibility to supervise W.H.’s probation. According to the recollection of Mr M., who was the supervising officer for part of that period (after June 1977), he would have made it clear to W.H. that he was not permitted to live in the family home due to the nature of the offences. He recalled visiting W.H. at a separate address in Dumfries during this period and sending mail to that address. He believed that W.H. was living there and not at the applicants’ home. In the precognition annexed to the Government’s observations, Mr M., who was also probation officer for E. and acted as replacement for the family social worker, recalled however that he did have suspicions that W.H. might still be living at the family home and that on visiting the family home two or three times unexpectedly he found W.H. “just leaving”. He did not consider that there was sufficient evidence of W.H. breaching the conditions attached to his probation order to justify taking the matter further. 21. The social worker, Mr R., visited the home on 22 occasions between 24 January and the end of June 1977 and did not see W.H. However, his notes recorded in March 1977 a suspicion that the mother was still cohabiting with W.H. When Mr M. took over the case, he noted that W.H. was not living there (social work case notes entry of 6 August 1977 ) and that W.H. was not contributing financially to his children. In his later affidavit, he stated that this entry was based on information from the mother. Entries indicated concerns about school attendance and that the mother had been repeatedly told that she should not keep the girls off school. In September 1977, it was noted that the school had expressed concerns about the welfare of T., the fourth applicant, which was attended to by a senior social worker. A school meeting concerning the children’s attendance was arranged but the mother and H., the second applicant, failed to attend. In November 1997, the social worker paid an unexpected visit to the home and found that W.H. was there. Both he and the mother denied that he was living there. 22. According to a social enquiry report of 1 June 1977 drawn up by Mr R. when E. was charged with criminal damage before the Sheriff Court, she had left home in about February 1977. No reference was made to the past history of sexual abuse in the home though it was stated that she had left home after a scene with the man who was at that time co-habiting with her mother. E. was found guilty of malicious mischief on 15 June 1997 and sentenced to two years’ probation. Social work case notes also recorded that by March 1977 she had left home. According to her claims lodged in later proceedings, E. finally left home on her 17 th birthday, in October 1977. 23. School attendance was still recorded as a problem in December 1977 for the remaining girls at home. H., the second applicant, had now left school officially. In her later statements, L. recalled that during 1977 she was on occasion taken into temporary local authority care in connection with problems of running away. 24. In January 1978, the mother was recorded as giving her various health problems as the reason for keeping L. and T. off school. It was noted that her speech was slurring, among other symptoms, but that she had shown reluctance in going to see her doctor or in allowing the social workers to approach her doctor. In February 1978, she was keeping one or both girls off school to help her at home or to run messages. 25. In March 1978, it was noted that the house was becoming even more disordered and the younger children and the mother were becoming more unkempt. The mother gave the impression of having given up. In June 1978, the mother was finally referred through her doctor for hospital tests, though she failed to attend the appointments set. In October 1978, it was noted that the house stank and that the carpet was matted. The mother informed the social worker that W.H., who lived in Derbyshire, had invited her to go and live with him there. She gave up that idea shortly afterwards. 26. In January 1978, L. was referred to a Children’s Hearing for failure to attend school. In the background report drawn up by Mr M. for the hearing, explanation was given of the financial and health difficulties of the mother and it was stated that it was the mother who kept L. from school to help in the home. There was no reference to the history of sexual abuse in the home. In April 1978, L. was living temporarily in a social work establishment known as the Closeburn Assessment Centre. On 22 April 1978, she ran away from the home and was returned. At a date unspecified, she went back to live at home. 27. H., aged 17, left the family home in or about 1978. 28. On or about 15 January 1979, L. left home after an argument with her mother about going out at night and was brought back by the police who referred the matter to the social services. After discussion with the mother, L. was taken into care by the social services until 20 February 1979. 29. On 16 March 1979, the school attended by L. called a multi-disciplinary meeting to discuss the problems of non-attendance of a number of the children of the family. Though a social worker was invited to attend, none was present. 30. On 28 March 1979, L. was transferred to a residential centre but left the following day to return home. At about the same time, the applicants’ mother changed address. L. lived with her there for about a week and then left to live with a friend. She took an overdose and was admitted to hospital. A letter dated 11 April 1979 from the psychiatric registrar to L.’s G.P. noted that “... she doesn’t get on well with her mother’s cohabitee. The relationship with Mum’s cohabitee seems a bit peculiar”. 31. After being discharged from hospital on 9 April 1979, L. went to live with a 50 year old man with whom she had a sexual relationship. On 17 April 1979, the police picked up L. who told them about the relationship. The mother agreed that L. was beyond her control and agreed that she be put in a place of safety. An order lasting one month was made to that effect. From 18 April 1979, she was made the subject of compulsory care measures by the local authority which brought her before the Children’s Hearing. In the background report drawn up by the social worker Mr E. for the hearing, details were given of the mother’s financial difficulties and ill-health and comment was made that, apart from truancy, the family had not been in any trouble. No reference was made to the past sexual abuse. The hearing extended the place of safety order. L. was sent to Closeburn Assessment Centre from 18 April to 18 June 1979. She appears to have remained there for most of the period until her 16 th birthday on 28 July 1979, at which date she ceased to be subject to the legislation governing the compulsory education of children. Efforts were then made to find employment for her. Social work notes of 1 August 1979 concerning L. recorded that, when the social worker accompanied her to the mother’s home for a visit, a man described as L.’s stepfather was present in the living room. 32. Entries in the social work notes for the family during 1979 continued to emphasise financial difficulties. An entry in February 1979 referred to problems of school attendance of ten years’ standing and the mother’s frequent summoning before the school council. 33. On 7 April 1979, it was noted that the family had moved to a larger home, a self-contained house provided by the local authority. 34. Through 1979-1981, financial difficulties were noted as continuing, and the mother’s health and general state deteriorating to such an extent that she rarely got out of bed. 35. The applicants’ mother died in 1981. It appeared that she had been suffering, inter alia, from undiagnosed multiple sclerosis. The applicants’ elder sister (aged 22) took on the mothering role in the family home. 36. T. left home in November 1984, after she had become pregnant and had a child. By January 1988, she was living at an address with her 3 year old daughter and was in contact with the social services concerning her financial problems. In February 1988, she indicated to her social worker that she had been subject to sexual abuse in the past. In April 1988, she disclosed that this had involved her step-father W.H. as well as other men, one of whom had been convicted of rape. As at the time she was in regular contact with W.H., whom she considered had reformed, she was counselled concerning the risk to her own child. 37. Following counselling, E., L. and T. reported the history of abuse by W.H. to the police in or about November 1988. In her statement of 13 January 1989, L. stated that after W.H. had been arrested in 1977, various social workers used to come around and she and the others had had to tell them that W.H. was not living with them anymore. When they came to the house, W.H. used to hide and her mother used to keep the children out of their way if possible. She recalled wanting to tell a social worker what was happening but was so petrified of W.H. that she did not. W.H. continued to interfere with her and had sex with her a couple of times after the court case. 38. Charges were brought against W.H. of committing sexual offences against E., L. and T. 39. At his trial before the High Court on 20 July 1989, W.H. pleaded guilty to four charges and not guilty to two charges. The prosecution accepted his pleas. W.H. was duly convicted of serious acts of indecency against E. between 19 October 1967 and 18 October 1972 and of further such acts against her between 1 September 1976 and 18 October 1976; of serious acts of indecency against L. between 28 July 1968 and 31 December 1974; and of similar acts against T. between 28 August 1974 and 27 August 1978. Only part of the latter charge concerned the period after W.H.’s earlier conviction on 8 January 1977. 40. The trial was adjourned for sentencing reports to be obtained. On 20 July 1989, the High Court sentenced W.H. to a two year suspended sentence of imprisonment, having regard to the reports which indicated that he now lived in Yorkshire and that most of the offences predated his earlier conviction in 1977. However, it was only at this time that the applicants alleged that they became aware that W.H. had been subject to criminal proceedings in 1977 and that he had been placed on probation on the condition that he did not reside in their home. 41. On 18 June 1992, the four applicants brought proceedings against the local authority seeking damages on the basis that the local authority had failed to carry out its statutory duties, in particular, that W.H. had breached his probation order by residing at the family home and that the social services had, or ought to have, known this and had failed to report the breach to the court or to take the children into care. 42. On 4 January 1996, following the decision of the House of Lords in X. and Others v. Bedfordshire County Council ([1995] 3AER 353) and in the light of counsel’s advice that their case was indistinguishable, the applicants consented to an order that their action be dismissed. 43. In or about 1992 to 1993, the applicants applied for compensation to the Criminal Injuries Compensation Scheme in respect of the abuse suffered. In their applications, they alleged as follows: (i) E. stated that from about 1967 she suffered 10 years of abuse from W.H. The first incident which she recalled was when she was 6 or 7 when he struck her, sending her flying into the wall. Soon after, he began coming into her room at night and doing things to her, requiring her to masturbate him. If she cried, he would punch her in the face. From the age of 12, he used to make the girls have a bath together and would touch them all over their bodies, inserting his finger into them. Often he would keep her off school and would abuse her sexually. He assaulted her often, coming up behind her to hit her on the back of the head. He also used to stand on her naked feet with his shoes on and twist, pinch her with his nails and punch her. This physical abuse happened on a daily basis. He would also get her and the others to strip to the waist and hit each other with dog chains. This conduct continued regularly until she left home on her 17 th birthday ( 19 October 1977 ). She recalled going to the social services when she was aged 14 and telling them that W.H. was living with them when he was not supposed to. Nothing happened as a result. While the social services were coming to the house, she did not remember them talking to her. She recalled that this period was before she was 14 or 15, before 1974 or 1975. When she was 15, she started running away from home. On one occasion she took pills. When she was visited by the police in hospital, she told them that W.H. was interfering with her. She also told this to a psychiatrist whom she saw soon after. However, W.H. continued interfering with her. W.H. was only arrested after L. had run away from home in January 1977. E. had suffered serious problems since that time, having made several suicide attempts and having developed a severe drink problem. A psychiatric report of 24 April 1992 concluded that her symptoms accorded with a diagnosis of severe post traumatic stress disorder. (ii) H. stated that he suffered from physical abuse, assaults and threats of violence from W.H. from about 1967. From about the age of 6 or 7, W.H. used to punch him in the stomach and bash him against the wall. He also made him and the others strip to the waist and punch and hit each other with chains. These relentless assaults went on regularly until he left home during 1978. A psychiatric report of 9 June 1992 concluded that he had long term relationship problems, poor self confidence and long standing personality difficulties. (iii) L. stated that she had suffered sexual and physical abuse from W.H. from 1969 until she left home in about 1979 and on occasion after that. W.H. had started interfering with her when she was about 5 or 6. The first thing she remembered was him bathing her with her sister E. and rubbing her private parts. Hardly a day went past when he did not do something of a sexual nature to her (e.g. touching her breasts or private parts) or batter her. When she was older, he made her touch him on his private parts and perform oral sex. He made her and the other children hit each other with chains and whips and would sometimes join in. She was often left with bad bruises and a bleeding nose. From the age of 11 or 12, he had sexual intercourse with her several times. When she ran away in January 1977, she told the police and he was arrested. However, he returned home and started interfering with her again, having intercourse with her and punching or kicking her if she refused. She ran away again in Spring 1977 and was put into a home, first in Dumfries, then Annan and finally Closeburn, which she eventually left in 1979 when she was 16. At that point, she did not return home but went to stay with her sister and then embarked in a series of relationships. When she visited her mother on 1 January 1980, W.H. put his hands up her skirt but let her go when she threatened to tell her boyfriend. On another occasion in 1981, W.H. tried to fondle her but she got up and left. She had never been able to tell anyone about these things as she was scared of him and thought that he would severely assault her. A psychiatric report of 24 April 1992 concluded that her symptoms, including nightmares and sleep disturbance, accorded with a diagnosis of severe post traumatic stress disorder. (iv) T. stated that she had suffered sexual and physical abuse from W.H. from about 1971 to 1989. Though she did not remember anything specifically before the age of 9, she slept in the same bed as L. and remembered him coming naked into the bed with them. From an early age, he used to stand on her naked feet in his shoes and twirl round, nip her and punch her in the stomach. She had black eyes occasionally. When she was 9, she remembered him making her touch him and masturbate him. She had to do that to him two or three times a week when he came home from work. He then started keeping her off school and would lie down on the bed naked, making her take her clothes off and masturbate him. This occurred two or three times a week. When she was 10 or 11, he began to touch her breasts and rub his penis over her until he ejaculated. When she was 14, he forced her to have sexual intercourse with him. He did not repeat that but continued touching her and making her masturbate him or have oral sex. This continued until 1984 when she was able to leave home – she deliberately got pregnant by having sex with someone she knew, so that the local authority would provide her with accommodation away from home. In 1987, W.H. started coming to her house and would try to touch and grab her. She became very depressed and suicidal. She then told the Family Centre about the abuse. A psychiatric report of 24 April 1992 concluded that her symptoms, including low self-esteem, fear, mistrust and depression, accorded with a diagnosis of severe post traumatic stress disorder. 44. Though the applicable provisions did not permit claims for injuries from violence arising before 1 October 1979 where the victim and assailant were in the same household, the Criminal Injuries Compensation Board (“CICB”), in an apparent oversight, made an assessment awarding 25,000 pounds sterling (GBP) to E., L. and T. for general damages. They appealed against the failure to award damages for loss of earnings. As it was noted that in the proceedings for the fourth applicant T. that most of her injuries had arisen before 1979, the applicants E. and L. withdrew their appeals to prevent their awards being reconsidered altogether. In deciding T.’s appeal, the Board decided that as she had sustained some damage post-October 1979 it would not disturb the award but made no award for alleged loss of earnings or damage to employment prospects. H. did not receive any award. A letter dated 23 July 1992 from the CICB indicated that his application had been rejected in that his claim had not been made within three years of the incident giving rise to the claim and the Chairman had decided not to waive the requirement in his case. 45. On 30 January 1996, the applicants requested the Commissioner for Local Administration in Scotland to undertake an investigation into their allegations of negligence and maladministration by the local authority. By letter dated 8 February 1996, the Ombudsman stated that he had no jurisdiction pursuant to section 24(6)c of the Local Government (Scotland) Act 1975, which precluded investigations where the complainants had a remedy by way of proceedings in a court of law, and that, even if he had jurisdiction, he would not have undertaken an investigation due to the lapse in time since the events occurred. By letter of 22 February 1996, he declined to reconsider his decision. B. Social work expert reports submitted by the parties Reports by Ms Ann Black submitted by the Government 46. The Government submitted two reports by Ms Black, a social work consultant who has worked for more than 30 years in the field of child care, principally in Scotland. 47. In her first affidavit dated 26 March 2002, Ms Black stated that with the exception of cases of incest there was in the 1970s no real appreciation of the incidence of, and consequences for victims of, child sexual abuse within families. Circulars referred to non-accidental injury without specific reference to sexual abuse which was not recognised as a particular issue. It was only in the 1980s that literature began to arrive in the United Kingdom from the United States on the subject of child sex abuse and initially this was regarded as controversial. The first real recognition of the problem in the United Kingdom was a CIBA publication “Child Sexual Abuse in the Family” published in 1984. A Working Group on the topic was set up by the Social Work Services Group of the Scottish Office in which she was involved and which reported in 1985. 48. According to her experience, during the 1970s and before, where a case of incest or sexual abuse had been identified, the focus would be on ensuring that the perpetrator was punished. Little or no attention was given to the needs of the victim and once the perpetrator was convicted that would be seen as the end of the matter. There was no real appreciation of the extent to which abusers might continue to abuse their victims over many years or of the skills of abusers in avoiding detection. Social workers were not given any specific training about child sex abuse. There was also the practice at the time of local authorities keeping their probation and child care functions separate, with social workers working separately rather than as part of a team and there was a tendency for there to be relatively little interaction between schools and social work departments. 49. In her view, after W.H. had been convicted and sentenced to probation in January 1977, it would have been generally assumed that any continuing problem would have been resolved, particularly if a condition in his probation was that he was not allowed to live in the family home. No work would have been envisaged with the victims unless they were showing obvious distress or problems. A mere suspicion that the W.H. was in breach of the probation order, and his presence found in the house during the day, would not have been sufficient proof of breach. He was the father of two of the mother’s youngest children, contact with the family was not prohibited and his presence in the house would have even been seen as positive. Even if they had considered the possible breach of probation further, they would not have gone on to consider possible harm to the children. It would have been standard practice to make specific appointments to visit the home in order to avoid wasted time and she would not have expected the social worker to make spot checks or call at unexpected times to check on W.H.. As was the practice, social services provided support for the mother who had considerable problems in running the home, and would have had a tendency not to investigate the causes of any running away or of truancy, particularly where the child was close to school leaving age. Nor would it have been expected at the time for the social workers to make a point of talking individually to the children, unless for the purpose of a specific report. 50. In her additional comments of 20 May 2002, added in the light of the examination of further documents, Ms Black noted that at the meeting convened by the school in March 1979 concerning L. the social work department had not sent a participant though invited to do so. The school problems drawn to the attention of the social services did not appear to have prompted the social worker to suggest a meeting to try to draw together the issues for the family and this meant that the full extent of the problems that L. and the others in the family faced were not discussed by the wider group of professionals who knew the family. By this time, the use of case conferences was well established in social work practice. 51. She also noted that following E.’s overdose of pills in November 1976, the social services did not appear to react to E.’s dislike of W.H. and her allegations of an earlier sexual assault and his shouting and hitting. Nor was there any social work follow-up when L. ran away in January 1977, beyond a visit of the emergency social worker, or any discussion with E. and L. after W.H. had been sentenced. Even if social workers at the time were not aware of the incidence of sexual abuse, the incidents with the two girls and the evident distress shown by them should have usefully led to an attempt to discuss with them individually how things were at home, in particular to establish the severity of past incidents and whether any other children in the house were at risk of sexual or physical abuse. 52. Further, in the light of Mr R’s report to the court which commented on the need for firm control of W.H. and the mother’s refusal to accept that he had committed the offences, this made the assurances given by W.H. and the mother that W.H. was not living in the home much less safe to rely on. Mr R. did not appear to have issued any warning to them about the consequences of breaching the probation order. When the report was made on E. in June 1977 there was no reference to the sexual abuse or home difficulties. Also the report to the Children’s Hearing on L. in January 1978 failed to give a full picture of her difficulties. Throughout the case there was an emerging pattern of different people not using the information available to assess the safety of the girls and W.H.’s adherence to the probation conditions. After the report on E. in June, it could have been expected that the workers involved in the family would have increased their scrutiny of the living arrangements in the family. The lack of detail in the reports on L. deprived the Children’s Hearing of vital information which could have led them to place L. on supervision and afforded more opportunity for her to speak about the home situation. 53. Though by January 1977 E. was too old to be referred to the reporter of the Children’s Hearing, grounds existed for referring L. at that time. Given the abuse, her level of truancy, the poor financial and material circumstances in the family and the offence of W.H., coupled with allegations by E. as to shouting and hitting in the family home, she considered that a referral of L. ought to have been made. This would have given an opportunity for all the different agencies involved with the family to contribute to the discussion and for the Hearing to appreciate the full extent of the problems. Though L. might not have been removed in the first instances, a supervision requirement would have allowed closer contact and more individual work. The Reporter would also have had the opportunity to consider whether any other children in the household were in need of compulsory measures of care. 54. She concluded that the failure to share significant issues with the Children’s Hearing about L., the failure to work collaboratively with the school, the lack of attention to the assessed need for firm control of the situation after W.H. was placed on probation and the lack of attention to the significance that the mother did not believe her daughters’ complaints against W.H., all contributed to a failure to help get the girls the support they were likely to need after the conviction of W.H. and disclosed a failure in the approach taken to the family by the social work department. Reports by Mr Richard Jack submitted by the applicants 55. The applicants provided three reports dated 20 March, 13 May and 10 June 2002 by Mr Richard Jack, a consultant in social work with experience in social work practice over 28 years. 56. He stated that from 1975, when circular SW1/75 was issued, a mult -disciplinary approach by professionals was promoted in respect of neglect and child protection, though sexual abuse was not explicitly referred to. While public and professional acknowledgement of a significant child abuse problem did not emerge until the mid-1970’s, in this case E. and L. had made disclosures which were believed and not in doubt. Literature as to the nature of the problem was available to practitioners, in particular with Kempe and Kempe’s work published in 1978, inter alia, identifying clear indicators as to the behaviour exhibited by abused children. 57. Despite long-term problems with the family and notes of truanting dating back to 1973, there was minimal reference to dialogue between the social services and the education authority. There was no reference in the social work records to the disclosures made by E. to medical personnel or to a visit to her in hospital by an emergency social worker, disclosing a significant breakdown in communication. The family social worker Mr E. appears to have had no clear knowledge as to the situation, while Mr M., who later supervised probation of W.H., was not a qualified social worker and did not appear to have proper knowledge of the seriousness and persistence of the offences in issue. 58. Once disclosures had been made by E. and L. in 1977, it would have been reasonable, given the ages of the children, to discuss W.H. with them outwith the presence of the mother. A serious discussion ought to have taken place in the social services as to the potential risks to the children in the household and at the very minimum a report should have been prepared for the Reporter to the Children’s Hearing. In fact there was nothing to suggest that the social services explored W.H.’s impact on the children in the family at all. 59. The social service records noted clear suspicions that W.H. continued to live in the household. Though it was stated in the context of the probation order that firm control was needed, no steps were taken such as further enquiries from neighbours or the local police as to W.H.’s actual place of residence. Breach of the probation order was a very serious matter and should have triggered a referral of his case back to the court and of the children to the Reporter. 60. When L.’s truancy was referred to the Children’s Hearing in 1978, there was no reference to the background of her running away in January 1977 or to the history of neglect and turbulent dynamics in the family. It was negligent of the social services not to provide the panel with full information. Nor when there was a case study meeting at the school in March 1979 did any social worker attend. There was never any multi-disciplinary case conference which reviewed in a full, objective and accurate manner the history and circumstances of the family. | Three sisters and their brother were for many years abused physically (all four children) and sexually (the girls) by their mother’s boyfriend, including after his conviction for assaulting two of the girls, when he came back to live with the family, in breach of his probation conditions. The man forced the children, among other things, to hit each other with chains and whips in front of and sometimes with him. The girls all suffered severe post-traumatic stress disorder and the boy had personality problems as a result. |
81 | Parental authority, child custody and access rights | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 5. The applicant was born in 1953 and lives in Heidelberg. He is the father of a son born out of wedlock on 21 December 2003. Shortly after the child was born, the mother refused the applicant any contact with him. In 2004 the applicant unsuccessfully attempted to establish contact. 6. On 19 May 2005 the applicant lodged a request with the Frankfurt / Main District Court for the regulation of contact rights. The course of proceedings before the District Court is summarised in the Court ’ s judgment in the case of Kuppinger v. Germany [Committee], no. 41599/09, §§ 6-33, 21 April 2011. By interim order of 22 May 2007 the District Court ordered weekly supervised contact between the applicant and his son. Three supervised contact meetings took place between 14 June and 19 July 2007. 7. On 21 December 2009 the District Court suspended the applicant ’ s contact rights for one year. This decision was amended on 22 March 2010 with respect to the applicant ’ s right to be informed about the child ’ s personal circumstances. 8. By judgment of 21 April 2011 (see Kuppinger, cited above, § 51), the Court found that the length of the proceedings before the Frankfurt District Court, which had lasted from 19 May 2005 to 22 March 2010, violated the applicant ’ s right to a trial within a reasonable time under Article 6 § 1 of the Convention. The Court further considered that there had been a violation of the right to an effective remedy under Article 13 of the Convention. B. Execution of the interim decision of 12 May 2010 9. On 30 December 2009 the applicant lodged an appeal against the decision given by the District Court on 21 December 2009. On 15 April 2010 the Frankfurt Court of Appeal held a hearing. 10. By interim decision of 12 May 2010 the Court of Appeal decided that the applicant had the right to see his son for three hours on six specific dates between 26 May and 6 August 2010. The first three contact meetings were to take place in the presence of a supervisor. The Court of Appeal further ordered the child ’ s mother to take the child to the meetings on time. Finally, the Court of Appeal warned the mother that an administrative fine ( Ordnungsgeld ) of up to 25,000 euros (EUR) could be imposed if she did not comply with her obligations under this decision. 11. The Court of Appeal noted that the last contact meeting had taken place in 2007. There was no indication that contact with the applicant would jeopardise the child ’ s welfare. According to expert opinion, the child ’ s refusal to meet the applicant was not based on an autonomous decision, but was influenced by the mother ’ s stance. This was in line with the personal impression the judge rapporteur had gained from hearing both parties and the child. The Court of Appeal acknowledged that the conflict between the parents, and their ensuing lack of communication, posed a risk to successful contact. However, the course of the proceedings had shown that both parents were unwilling to settle these conflicts by availing themselves of specialist help. As it was unlikely that the parents would change their attitude, the granting of contact rights could not await the outcome of successful counselling. 12. The Court of Appeal further considered that the overall course of the proceedings had demonstrated that both parents had contributed to the failure of contact visits. In view of the lengthy proceedings, which imposed an emotional burden on the child, it was particularly important to re ‑ establish contact carefully after a regrettable interruption of two years. 13. On 31 May 2010 the supervisor reported on the first contact meeting, scheduled for 26 May 2010, which had been postponed to 29 May 2010. After a short conversation and some playful interaction with the applicant, the child had decided to go to his mother and subsequently refused to play with his father. The supervisor further informed the Court of Appeal that the mother would be on holiday for the two meetings scheduled for 25 June and 2 July 2010 and that the parties ’ counsels would have to agree on alternative dates. 14. On 18 June 2010 the supervisor reported on the second contact meeting scheduled for 11 June 2010. According to the report, the meeting had lasted around 35 minutes during which the applicant and his son had engaged in several play activities. The meeting was interrupted by two interactions between the child and his mother. Subsequently, the child told the applicant that he did not wish to play with him and left with his mother. 15. On 25 May 2010 the mother ’ s counsel informed the Court of Appeal that it had not been possible to find alternative dates for the meetings scheduled during the mother ’ s absence and that she expected that the meetings would be re-scheduled for 20 August and 3 September 2010. 16. On 28 June 2010 the applicant requested the Court of Appeal to schedule alternative dates for the meetings which were to take place during the mother ’ s holidays. 17. On 1 July 2010 the Court of Appeal informed the applicant that it did not see any reason to issue additional orders as to the organisation of the contact meetings, which fell within the competence of the supervisor. Furthermore, there was no room for scheduling alternative meetings. The Court of Appeal further requested the mother to submit proof of her alleged holiday absence. 18. On 21 July 2010 the applicant lodged a request with the District Court to impose an administrative fine of at least EUR 3,000 on the mother for having failed to enable him to exercise his contact rights on 26/29 May and a further EUR 5,000 for having prevented him from exercising his contact rights on 11 June 2010. He submitted that the mother had failed to deliver the child on 26 May 2010, allegedly for professional reasons. On the alternative date, 29 May 2010, the mother had brought the child, but taken him away after approximately five minutes. On 11 June 2010 the mother had left the meeting place with the child after half an hour and had thus prevented further contact. In view of the urgency of the subject matter and relying on the case-law of the Court (the applicant ’ s counsel referred to the case of Koudelka v. the Czech Republic, no. 1633/05, 20 July 2006 ), the applicant further requested the District Court to reach a decision speedily. 19. On 29 July 2010 the supervisor reported on the contact scheduled for 23 July 2010. The unsupervised contact ordered by the Court of Appeal had not taken place because the child had refused to go with his father and the supervisor ’ s mediation attempts had been to no avail. 20. On 30 July 2010 the mother submitted documents to justify her absence. 21. On 11 August 2010 the applicant requested the District Court to impose further administrative fines on the mother for failure to comply with her obligations under the interim decision. Relying on the report by the supervisor, he submitted that the mother had prematurely terminated the contact visit on 18 June 2010. Furthermore, she had failed to appear at the meeting place on 25 June and 2 July 2010. On 23 July 2010 the mother had failed to hand over the child to the supervisor, and induced the child to declare that he did not wish to have any contact. On 6 August 2010 the applicant informed the supervisor that he would be approximately 30 minutes late because of traffic problems. The supervisor informed him that mother and child had left the building after ten minutes. 22. On 25 August 2010 the Youth Office submitted comments. 23. On 26 August 2010 the District Court scheduled a hearing for 10 September 2010. 24. On 9 September 2010 the District Court, on the mother ’ s counsel ’ s request, postponed the hearing to 24 September 2009. 25. During the hearing on 24 September 2010 the District Court heard the supervisor ’ s oral submissions. 26. On 1 September 2010 the District Court informed the applicant that no decision could yet be taken for lack of the main case file on the contact proceedings. 27. On 22 October 2010 the applicant ’ s counsel requested the District Court to expedite the proceedings. He further submitted that the District Court was in possession of all relevant documents and that it was not necessary to await the return of the main case file. 28. By decision of 12 November 2010 the District Court imposed an overall administrative fine of EUR 300 on the mother for having contravened the contact order six times. The District Court noted that it was not in dispute between the parties that contact did not take place, or took place only for a limited period of time, on the six dates relied upon by the applicant. The District Court further considered that the mother was accountable for the failed contact, albeit to a limited degree. 29. The District Court considered that the fact that contact visits were terminated because of the child ’ s resistance did not exonerate the mother. The Court of Appeal had repeatedly stated that it was up to the mother to avail herself of the necessary educational measures in order to influence the child and thus to allow contact visits. The mother had failed to establish that she had undertaken such measures. She might have had good reason for requesting the dates to be rescheduled. However, she did not have the right to cancel these dates without the Court of Appeal ’ s or the applicant ’ s consent. Finally, the mother was under an obligation to wait for the applicant on 6 August 2010, taking into account that the applicant had informed her beforehand that he would be late. 30. The District Court observed that the relevant provisions prescribed an administrative fine of up to EUR 25,000 for each established contravention of the court order. Based on an overall assessment of the circumstances, the District Court considered that only administrative fines within the lowest range could be envisaged. The District Court took into account that, according to a report submitted by an access custodian on 2 October 2010 (see paragraph 45, below) there were serious indications that it would not even have been possible for a professional counsellor to establish contact. Against this background, the mother ’ s personal responsibility appeared to be minor. This was even more so as the mother did not completely prevent contact, but took the child to four of the scheduled meetings. The demands on her educational capabilities had been high, as she had not only been obliged to reconsider her own stance on the problems within a period of a few weeks, but also to change the child ’ s established pattern of behaviour. It had further to be taken into account that comparable contraventions would not have to be sanctioned in the mid-term future, because a contact custodian had been appointed. Against this background, the administrative fine had primarily the character of a sanction for past behaviour, but not of a coercive measure. 31. According to the District Court, account also had to be taken of the fact that the purpose of the first dates, on which the child had prematurely terminated the contact visits, was to institute contact. It was inherent in this constellation that contact could only be established gradually and might fail. The Court of Appeal had pointed out this possibility and had also indicated that no undue pressure should be exerted on the child. 32. With regard to the contact meetings scheduled for 25 June and 2 July 2010, the applicant had been informed beforehand that mother and child would be absent and this fact should also be taken into account. He had thus incurred travel and other expenses on these dates in spite of this knowledge. 33. Considering these circumstances, the Court found it reasonable to impose an administrative fine of EUR 80 for each of the three occasions when contact did not take place at all and of EUR 20 each for the three remaining contraventions. 34. Both parties lodged complaints. The applicant submitted that the administrative fine imposed was far too low and obviously ineffective. He further complained that the length of the administrative fine proceedings had been excessive and had violated his rights under Article 8 of the Convention. 35. On 2 December 2010 the District Court refused to amend its decision of 12 November 2010 and forwarded the complaints to the Frankfurt Court of Appeal. 36. On 17 December 2010 the Court of Appeal invited both parties to submit comments in reply by 6 January 2011. 37. On 2 February 2011 the Court of Appeal rejected both parties ’ complaints. In respect of the applicant ’ s complaint, the Court of Appeal considered that the District Court had exercised its discretion in an acceptable way, taking into account all relevant circumstances. The Court of Appeal further considered that while it was true that the proceedings on administrative fines had to be processed speedily, the courts had to retain the possibility of availing themselves of all relevant information. Even though there were several reasons to assume that the length of the proceedings had been acceptable, the Court of Appeal did not consider it necessary to decide whether the proceedings had been conducted within a reasonable time, as there was no legal basis for establishing that the length of proceedings had been excessive. 38. On 28 February 2011 the applicant lodged an application to be heard ( Anhörungsrüge ) with the Court of Appeal, which was rejected by that court on 4 May 2011. 39. On 16 August 2011 the Federal Constitutional Court refused to accept the applicant ’ s constitutional complaint for adjudication (no. 1 BvR 1544/11). 40. In the meantime, on 14 February 2011 the applicant requested the District Court to execute its decision of 12 November 2010. On 21 March 2011 the District Court ordered the applicant to advance court fees. On 26 April 20 11 the District Court requested the applicant to submit an original version of the decision to be executed. On 4 May 2011 the applicant pointed out that the decision had to be executed ex officio. On 1 June 2011 the mother, who had been granted leave to pay by instalments, had paid the administrative fine in full. On 19 July 2011 the District Court informed the applicant that the administrative fine had already been paid. C. Execution of the contact order of 1 September 2010 41. On 1 September 2010 the Frankfurt Court of Appeal, in the main proceedings, quashed the decision of the District Court of 21 December 2009 (suspension of contact rights) and granted the applicant contact rights on every second Wednesday afternoon for three hours each time, beginning on 29 September 2010. Following four supervised contact meetings, the applicant was to have the right to unsupervised contact meetings of up to eight hours each. The Court of Appeal further appointed Mr. H. as custodian for the implementation of contact rights ( Umgangspfleger ). The mother was ordered to hand over the child to the custodian for the purpose of contact meetings. Both parents were ordered to have preparatory conversations with the custodian. 42. The Court of Appeal confirmed its previous finding that there was no indication that contact with his father would jeopardise the child ’ s welfare and that there was thus no reason to suspend contact rights. There was furthermore not sufficient evidence that the child insistently refused to see his father. The Court of Appeal considered that the child ’ s verbal refusals to meet his father were not based on the child ’ s own assessment, but stemmed from the child ’ s loyalty to his mother as his immediate caregiver. It was evident that contact meetings had solely failed because of the mother ’ s lack of willingness or her inability to allow such contact. 43. The Court of Appeal further observed that both parents had contributed to the lack of communication and to the overall development of the proceedings. 44. In view of the mother ’ s continuing failure to fulfil her parental duties, the Court of Appeal considered it necessary to appoint a custodian for the implementation of contact rights. The Court of Appeal observed that the custodianship had to be subject to a time-limit. It considered that the time until 31 March 2011 should be sufficient for establishing a stable relationship between the applicant and his son, allowing continued contact. 45. On 2 October 2010 the custodian informed the Court of Appeal that he had met the applicant, who had been uncooperative and did not seem to take an interest in the child ’ s welfare. Under these circumstances, contact could not take place as scheduled. Nevertheless, in order to allow for contact, he recommended that the applicant seek professional counselling. 46. On 15 November 2010 the applicant requested the District Court to discharge the custodian from his duties. 47. On 16 November 2010 the District Court appointed a curator ad litem to represent the child ’ s interests and submitted the request to the mother, the custodian and to the Youth Office for comments within one week. 48. On 30 November and 9 December 2010 the Youth Office and the mother asked the District Court to reject the request. 49. On 10 December 2010 the applicant requested the District Court to expedite the proceedings. On the same day, the District Court scheduled a hearing for 21 January 2011. 50. On 17 December 2010 the applicant complained that the District Court, when scheduling the hearing, had not respected the time-limit of one month laid down in section 155 § 2 of the Act on Proceedings in Family Matters (see Relevant Domestic Law, below). 51. On 12 January 2011 the District Court informed the applicant that it had not been possible to schedule an earlier hearing, as the judge in charge had been replaced by 1 January 2011 and the hearing was scheduled immediately after the new judge ’ s return from holidays. 52. On 21 January 2011 a hearing took place in the absence of the custodian, who had informed the District Court that he was on holiday. 53. On 29 January 2011 the custodian requested the District Court to discharge him from his duties. 54. Between 2 and 9 February 2011 the District Court judge contacted by telephone eight potential custodians. Ms R. was ready to supervise the first contacts, while Ms Z. declared her readiness to hand over the child for the ensuing unsupervised visits. 55. On 11 February 2011 the District Court informed the parties that custodian H. could only be dismissed if a new custodian was appointed. The District Court ’ s intensive endeavours to find a person who was ready to implement the decision of 1 September 2010 proved difficult. On that same date, the District Court judge wrote letters to 22 potential custodians and enquired about their readiness to take up duties in the instant case. Furthermore, the District Court informed the parties that it had instituted ex officio fresh contact proceedings in order to review the existing regulations ( Abänderungsverfahren, see paragraphs 67-81, below ). 56. On 16 March 2011 the mother challenged the District Court judge for bias. She withdrew her motion on 12 April 2011. 57. On 12 April 2011 the applicant ’ s counsel informed the mother ’ s counsel that the applicant intended to exercise contact rights on 16 April 2011 and that he expected the mother to hand over the child. The applicant expressed the opinion that the Court of Appeal ’ s decision of 1 September 2010 still provided for unsupervised visits on every second Saturday. On 14 April 2011 the mother ’ s counsel replied that she considered that the applicant did not have the right to unsupervised contact. 58. Between 16 April and 9 July 2011 the mother did not open the door when the applicant appeared for contact visits. Between 10 May and 11 July 2011 the applicant lodged 6 requests to impose administrative fines on the mother for failure to comply with her obligations to hand over the child to the applicant. He further requested the District Court to expedite the proceedings. 59. On 27 June 2011 the mother ’ s counsel requested the District Court to suspend proceedings pending the proceedings on the review of contact rights. 60. By decision of 29 June 2011 the District Court established that Mr H. ’ s custodianship had expired on 31 March 2011. 61. On 5 July 2011 the applicant requested the District Court to decide without further delay. On 8 July 2011 the District Court informed the applicant that the mother still had to be allowed to submit comments on the request of 1 July and on the applicant ’ s letter of 5 July 2011. 62. On 19 July 2011 the applicant complained that the District Court ’ s failure to decide on his requests violated his right to an effective legal remedy. 63. On 19 July 2011 the District Court informed the parties of its intention to decide in written proceedings on the basis of submissions lodged by 19 August 2011. 64. On 26 August 2011 the District Court rejected the applicant ’ s requests to impose administrative fines on the mother. The District Court observed that the supervised contact ordered in the decision of 1 September 2010 had not taken place. There was no indication that unsupervised contact could take place without an initial phase of supervised contact. This question was the subject matter of the new proceedings on the review of contact rights instituted by the District Court. Under these circumstances, it could not be said that the mother had failed to comply with the contact order of 1 September 2010. 65. On 13 September 2011 the applicant lodged a complaint which was rejected by the Frankfurt Court of Appeal on 12 December 2011. D. Proceedings on the review of regulations on contact rights 66. On 11 February 2011 the Frankfurt District Court instituted ex officio fresh contact proceedings in order to review the existing regulations and scheduled a hearing in the presence of Ms Z. and Ms R., who had previously declared their readiness to take on duties as custodians, for 16 March 2011. 67. During the hearing on 16 March 2011, the applicant and Ms Z. could not reach an agreement on the modalities of the contact, in particular the envisaged length of the first unsupervised contact meeting. The mother challenged the District Court judge for bias (compare paragraph 56 above for the parallel proceedings). On 31 March 2011 the substitute judge requested the mother ’ s counsel to submit reasons for this motion. On 12 April 2011 the mother ’ s counsel withdrew the motion. 68. On 18 May 2011 the District Court judge heard the child. 69. On 29 June 2011 the District Court decided to hear expert opinion on the question of whether the decision on contact rights issued by the Court of Appeal on 1 September 2010 could still be implemented or whether it was in the child ’ s best interests either to order unsupervised contact or to suspend contact rights. 70. On 15 July 2011 the applicant challenged the court - appointed expert for bias. On 25 July 2011 the District Court rejected the motion as being unfounded. On 5 August 2011 the applicant lodged a complaint. On 3 November 2011 the Court of Appeal accepted the motion. 71. On 19 December 2011 District Court appointed a new expert. On 15 March 2012 the expert informed the court that he had been unable to contact the applicant. The applicant informed the court that he was unavailable for further examination. On 29 March 2012 the applicant ’ s counsel abandoned his brief. 72. On 17 April 2012 the applicant requested the District Court to schedule a hearing immediately. 73. On 20 April the District Court, having received the expert report on 19 April, scheduled a hearing for 29 May 2012 and informed the parties that the applicant could be assessed on the basis of the expert ’ s personal impression gained during the hearing. On 22 May 2012 the applicant rejected the District Court judge on grounds of bias and the hearing was cancelled. 74. On 22 June 2012 the challenge for bias was rejected as being unfounded. On 9 July 2012 the applicant lodged an appeal which was rejected by the Court of Appeal on 31 October 2012. 75. On 16 November 2012 the District Court scheduled a hearing for 30 January 2012. On 5 December 2012 the applicant lodged a fresh challenge for bias, which was dismissed on 29 January 2013. On 15 March 2013 the District Court scheduled a hearing for 11 April 2013. Upon the applicant ’ s request, the hearing was postponed to 6 June 2013. 76. On 1 June 2013 the applicant informed the District Court that health reasons prevented him from attending the hearing. The District Court, taking into account the parties ’ absences during the summer months, postponed the hearing to 22 August 2013. 77. On 14 August 2013 the applicant once again requested the District Court to cancel the hearing. He did not appear at the hearing which took place on 22 August 2013. On 11 September 2013 the applicant requested the District Court to re-open the hearing, while at the same time submitting that he was unfit to appear in court. 78. On 12 November 2013 the Frankfurt District Court suspended the applicant ’ s contact rights until 31 October 2015 on the ground that contact against the child ’ s expressed will would jeopardise his welfare. The applicant lodged an appeal. 79. The applicant did not appear at the hearing which took place before the Frankfurt/Main Court of Appeal on 11 February 2014. The Court of Appeal scheduled a further hearing for 21 May 2014, to which the court - appointed expert was also summoned. On 20 May 2014 the applicant asked the Court of Appeal to allow him to bring a private expert to the hearing and, at the same time, to postpone the hearing scheduled for the following day as the private expert was unable to attend. The Court of Appeal referring, inter alia, to section 155 of the Act on Procedure in Family Matters, refused the request. On 21 May 2014 counsel for the applicant, who did not attend the hearing in person, challenged the Chamber of the Court of Appeal for bias, which was dismissed on 21 July 2014. 80. On 17 September 2014 the Frankfurt /Main Court of Appeal confirmed the suspension of contact rights until 31 October 2015. It furthermore allowed the father to write monthly letters, which the mother was ordered to hand over to the child. Relying on expert opinion, the Court of Appeal considered that personal contacts against the consistently expressed will of the child, who had now reached the age of eleven, would jeopardise the child ’ s psychological development and had thus to be temporarily excluded. The Court of Appeal further observed that the administrative fine imposed on the mother might have been insufficient and that the refusal of contacts between father and child, which had already lasted more than a decade, had not only been caused by the parents ’ and, in particular, the mother ’ s failure, but also by a failure of the judiciary and of the children and youth welfare services involved. | This case concerned in particular the complaint by the father of a child born out of wedlock that the proceedings he had brought to enforce court decisions granting him contact rights with his son had been excessively long and ineffective. |
874 | Private persons | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1955 and lives in Essex. A. Closed-circuit television (CCTV) and the relevant footage 9. In February 1994 Brentwood Borough Council (“the Council”) approved guidelines for the operation and management of CCTV. The CCTV tape recordings would be retained initially for ninety days, this period to be reviewed from time to time and reduced to a minimum, and the tapes would be erased on completion of the storage period. In the section headed “privacy to neighbouring properties”, it was noted that the CCTV system should ensure adequate provision for the avoidance of unwarranted intrusion in areas surrounding those under surveillance. In the event of it becoming apparent that privacy was being violated, it was foreseen that the Council would take such steps as to ensure that “either an electronic (digital) screening or physical screening is taking place”. In April 1994 the Council installed a CCTV surveillance system in Brentwood. It was fully operational by July 1994. The Council's monitoring operator had a direct visual and audio link to the police so that if it was considered that an incident warranting police intervention was taking place, the images being captured could be switched through to the police. 10. In August 1995 the applicant was suffering from depression as a result of personal and family circumstances. On 20 August 1995 at 11.30 p.m. he walked alone down the high street towards a central junction in the centre of Brentwood with a kitchen knife in his hand and he attempted to commit suicide by cutting his wrists. He stopped at the junction and leaned over a railing facing the traffic with the knife in his hand. He was unaware that a CCTV camera, mounted on the traffic island in front of the junction, filmed his movements. The CCTV footage later disclosed did not show the applicant cutting his wrists, the operator being solely alerted to an individual in possession of a knife at the junction. 11. The police were notified by the CCTV operator and arrived. They took the knife from the applicant, gave him medical assistance and brought him to the police station. He was detained under the Mental Health Act 1983. His custody record refers to the self-inflicted injuries to his wrists on arrival and notes that he was examined and treated by a doctor, after which he was released without charge and taken home by police officers. B. Release and publication of the footage 12. On 14 September 1995 the CCTV working party of the Council agreed to authorise the release of regular press features on the CCTV system. The Council also decided to cooperate with third parties in the preparation of factual programmes concerning their CCTV system. 13. The Council's first press feature, the CCTV News, was released on 9 October 1995 and included two photographs taken from the CCTV footage of the applicant to accompany an article entitled “Defused – The partnership between CCTV and the police prevents a potentially dangerous situation”. The applicant's face was not specifically masked. The article noted that an individual had been spotted with a knife in his hand, that he was clearly unhappy but not looking for trouble, that the police had been alerted, that the individual had been disarmed and brought to the police station where he was questioned and given assistance for his problems. The article included the name of a Council employee in the event that readers wished to obtain copies of the pictures. 14. On 12 October 1995 the Brentwood Weekly News used a photograph of the incident involving the applicant on its front page to accompany an article on the use and benefits of the CCTV system. The applicant's face was not specifically masked. 15. On 13 October 1995 an article entitled “Gotcha” appeared in the Yellow Advertiser, a local newspaper with a circulation of approximately 24,000. The article was accompanied by a photograph of the applicant taken from the CCTV footage. The newspaper article referred to the applicant having been intercepted with a knife and a potentially dangerous situation being defused as a result of the CCTV system. It was noted that the applicant had been released without charge. 16. As a result Anglia Television sought, and the Council provided, footage of the incident involving the applicant. On 17 October 1995 extracts from that footage were included in its news programme about the CCTV system, a local broadcast to an average audience of 350,000. The applicant's face had been masked at the Council's oral request. However, that masking was later considered inadequate by the Independent Television Commission (see below), the applicant's distinctive hairstyle and moustache making him easily recognisable to anyone who knew him. 17. On 18 October 1995 the Chairman of the Council informed the Council Technical Services Committee that cooperation had been, and would continue to be, given in the preparation of factual documentary programmes concerning the CCTV system. He referred to the feature on CCTV which had been broadcast by Anglia Television on the previous day. 18. In late October or November 1995 the applicant became aware that he had been filmed on CCTV and that footage had been released because a neighbour told his partner that the former had seen him on television. He did not take any action then as he was still suffering from severe depression. 19. On 16 February 1996 a second article entitled “Eyes in the sky triumph” was published in the Yellow Advertiser outlining the benefits of CCTV in the fight against crime and was accompanied by the same photograph as had been previously used by that newspaper. It appears that a number of people recognised the applicant. A letter of 25 April 1996 from the Yellow Advertiser opined that the applicant was not identifiable. The Press Complaints Commission did not decide whether or not the applicant was identifiable from the photograph (see below). 20. At or about that time the Council agreed to furnish CCTV footage of, inter alios, the applicant to the producers of “Crime Beat”, a series on BBC national television with an average of 9.2 million viewers. The Council imposed orally a number of conditions on the producers including that no one should be identifiable in the footage and that all faces should be masked. The BBC were also to consult with the police to ensure that they had “no objection to recordings being shown because of sub judice issues”. 21. Around 9 to 11 March 1996 the applicant was told by friends that they had seen him on 9 March 1996 in trailers for an episode of “Crime Beat” which was to be broadcast soon. On 11 March 1996 he complained to the Council about the forthcoming programme, at which stage the Council became aware of his identity. The Council contacted the producers who confirmed that his image had been masked. That evening the CCTV footage was shown on “Crime Beat”. The applicant's image was masked in the main programme itself but the Broadcasting Standards Commission (see below) later found that masking inadequate. Many of the applicant's friends and family who saw the programme recognised the applicant. 22. In response to the applicant's request for a copy of the Council's licence agreement with the producers of “Crime Beat”, by letter dated 21 February 1997, the Council provided an unsigned and undated agreement which did not appear to relate to the applicant but which contained a requirement to mask all faces in any copies of the relevant video. By letter dated 31 October 1997 the Council confirmed that it could not locate a signed copy of the agreement with the producers but it included an earlier draft of that agreement which had been signed by the producers, which related to the footage of the applicant but which did not include any masking requirement. 23. The applicant made a number of media appearances thereafter to speak out against the publication of the footage and photographs. On 28 March 1996 he participated in a national radio programme (BBC Radio 4). On 31 March 1996 he spoke to a journalist who published an article in a national newspaper and this was the first time the applicant's name appeared in the media. Other newspaper articles included photographs of the applicant or quotes given by him. He also appeared on national television: on 13 April 1996 on Channel 4's “Right to Reply”, on 25 July 1996 on Channel 5's “Espresso” and on 5 August 1997 on BBC 1's “You Decide”. He also had his photograph published in the Yellow Advertiser on 25 October 1996. C. The Broadcasting Standards Commission (BSC) 24. On 25 April 1996 the applicant lodged a complaint with the BSC in relation to, inter alia, the “Crime Beat” programme alleging an unwarranted infringement of his privacy and that he had received unjust and unfair treatment. On 13 June 1997 the BSC upheld both of his complaints. 25. The BSC noted that the BBC had already accepted that it had meant to mask the applicant's image and that this had not been done in the trailer due to an oversight. The BSC also considered the masking during the programme inadequate as the applicant had been recognised by viewers who had not seen the trailer. It was accepted that the BBC had not intended that the applicant would be identifiable. However, the BSC found that the effect was to reveal to the applicant's family, friends and neighbours an episode which he did not wish to reveal, and that the outcome had been distressing and amounted to an unwarranted infringement of his privacy. The BSC added that the fact that the applicant later chose to speak publicly about this incident did not alter the infringement established. The BBC was directed to broadcast a summary of the adjudication of the BSC with the episode of “Crime Beat” on 12 June 1997 and a summary of the adjudication was also published in The Daily Telegraph on 12 June 1997. D. The Independent Television Commission (ITC) 26. On 1 May 1996 the applicant complained to the ITC in respect of the broadcast by Anglia Television. The latter had already apologised to the applicant and conceded that it had breached the privacy requirements of section 2(2) and (5) of the ITC Code (sections concerning coverage of events in public and scenes of suffering and distress). The ITC noted that the implication was that a man carrying a knife was likely to be intent on a criminal act. It found that the applicant's identity was not adequately obscured and that he was readily identifiable and easily recognisable by those who knew him. It found that section 2(2) and (5) of the Code had been breached and the decision of the ITC was published in its Programme Complaints and Interventions Report of June 1996. Given the admission and apology by Anglia Television, no further action was taken by the ITC. E. The Press Complaints Commission (PCC) 27. On 17 May 1996 the applicant complained to the PCC in respect of the articles published in the Yellow Advertiser. The PCC rejected the applicant's complaint without a hearing and the decision was communicated to the applicant by letter dated 2 August 1996. The PCC considered that, whether or not the applicant was identifiable from the photographs, the events in question took place in a town high street, open to public view. It did not consider that the juxtaposition of the photographs and the articles implied that the applicant had committed a crime and it had been made clear that he was released without charge, the second article indicating that the applicant was ill at the relevant time. F. The judicial review proceedings 28. On 23 May 1996 the applicant applied to the High Court for leave to apply for judicial review of the Council's disclosure of the CCTV material arguing, inter alia, that that disclosure had no basis in law. On 26 June 1996 a single judge of the High Court refused leave. On 18 October 1996 the High Court granted leave on a renewed request and leave to amend the application to include a complaint that the disclosure was irrational, even if lawful. 29. By judgment dated 25 November 1997 the High Court rejected the application for judicial review. It found that the purpose of section 163 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) was to empower a local authority to provide CCTV equipment in order to promote the prevention of crime or the welfare of victims of crime: “By publicising information about the successful operation of the CCTV, the Council was providing information about its effectiveness and thereby reinforcing the deterrent effect of its operation. The making available to the media of footage from the CCTV film to show the effectiveness of the system can properly be said ... to be incidental to and to facilitate the discharge of the Council's function under section 163 [of the 1994 Act] because it thereby increased, or tended to increase, the preventative effect of the equipment which [the Council was] providing for the purposes of the prevention of crime.” 30. It concluded that the Council had the power to distribute the CCTV footage to the media by virtue of section 111 of the Local Government Act 1972 in the discharge of their functions under section 163 of the 1994 Act. 31. As to the “rationality” of the Council's decision to disclose, the applicant submitted that the Council acted irrationally in disclosing the footage with the aim of crime prevention when he had not been, in fact, involved in any criminal activity. He argued that by failing to consult the police to see if he had been charged with a criminal offence and to impose sufficient restrictions as regards disclosure of his identity, the Council had facilitated an unwarranted invasion of his privacy which was contrary to the spirit, if not the letter, of the Council's guidelines. 32. The High Court judge had some sympathy with that submission but did not consider it correct in law. He went on: “I have some sympathy with the applicant who has suffered an invasion of his privacy, as is borne out by the findings of the Independent Television Commission and the Broadcasting Standards Commission. However, if I am right in deciding that the Council does have power to distribute the film footage from its CCTV system, there may on occasion be undesirable invasions of privacy. Unless and until there is a general right of privacy recognised by English law (and the indications are that there may soon be so by incorporation of the European Convention on Human Rights into our law), reliance must be placed on effective guidance being issued by Codes of practice or otherwise, in order to try and avoid such undesirable invasions of a person's privacy. The evidence is that the CCTV cameras in public places play an important role in both crime prevention and crime detection. In this case, the film footage showed a man walking in the High Street carrying a large knife in his hand. It did not show him attempting to commit suicide. It was plainly a potentially dangerous situation which the Council's monitoring employee quite properly put to the police, as a result of which the man was arrested. ... It was not unreasonable for the Council to conclude that the footage was a useful example of how a potentially dangerous situation can be avoided. ... In those circumstances, it seems to me that the decision of the Council to distribute the film footage to the media could not be said to be irrational or unreasonable, bearing in mind that the film did not show an attempted suicide and that, at the time, they did not know the applicant's identity. They therefore had no reason to consult the police as to whether an offence had been committed. They did not sell the take-outs from the CCTV footage for commercial gain and, more importantly, they had imposed on the television companies a requirement that an individual's face should be masked. It is true that that was a verbal rather than a written requirement, but I am not persuaded that what happened was likely to have been different if it had been a written requirement. In the event, the fault lay with the television companies. Anglia TV failed to mask the applicant's identity adequately. The BBC failed to mask the applicant's identity at all in the trailers. As soon as the Council were notified about that by the applicant, two days before the programme went out, which was the first time they were aware of the applicant's identity, they immediately contacted the BBC and received assurances that his image had been masked in the programme. In the event, unknown to the Council, it had not been adequately masked in the programme. I am sure that lessons can be learnt from this unfortunate incident, and it may be that, with the benefit of hindsight, the Council will want to see if they can tighten up their guidelines to seek to avoid a similar incident in the future. I am, however, equally sure that, in the circumstances that I have described, the Council cannot be said to have acted irrationally in the sense that they had taken leave of their senses or had acted in a manner in which no reasonable local authority could sensibly have acted.” 33. An application to the High Court for leave to appeal to the Court of Appeal was rejected. The subsequent leave application to a single judge of the Court of Appeal was rejected on 21 January 1998 because “... the [High Court] Judge was plainly correct in his interpretation of the relevant statutory provisions and the Council was neither acting outside its statutory authority nor irrationally in making the film and photographs available to the media. The injury, of which complaint is made, arises from a failure on the part of the media to sufficiently disguise the applicant when making the film and photographs visible to the public. That is and has been the subject of complaint against the media involved but is not capable of supporting a claim for a declaration against Brentwood Borough Council”. 34. Following an oral hearing before the full Court of Appeal, the applicant's leave application was dismissed on 19 February 1998. | In this case the applicant, who was suffering from depression, complained about the disclosure in the media of footage from a closed-circuit television (CCTV) camera mounted in the street showing him walking alone with a kitchen knife in his hand (he had subsequently attempted suicide by cutting his wrists, but the CCTV footage did not show this), which had resulted in images of himself being published and broadcast widely. He further complained of the lack of an effective domestic remedy in that regard. |
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