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97 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE A. The background facts 5. The applicant was born in 1962 and lives in Bridgwater. 6. The applicant’s son, K., was born on 21 April 2001. The father of the child is P.C. P.C. is partly incapacitated due to breathing and circulation problems and sometimes uses a wheelchair. The parents were in a relationship for around fourteen years and are not married. 7. In 2003 the family came to the attention of social services as a result of an “alcohol fuelled” incident between the parents. Thereafter, incidents of domestic violence escalated from the end of 2007 with the police being called to the family home on numerous occasions. The parents resisted the involvement of social services. The local authority offered them assessments at Turning Point in respect of their use of alcohol but these were declined. Although in many instances the applicant was the victim of assaults by P.C., she was on one occasion arrested for assaulting him and on another occasion K. injured her while defending his father from an attack by her. On 3 June 2008 P.C. was arrested and taken into custody when K. was injured in the course of a violent incident between his parents. B. The domestic proceedings 1. The emergency protection order application 8. On 4 June 2008 the local authority applied to the Family Proceedings Court for an emergency protection order (“EPO” – see paragraph 92 below) in respect of K. The application was heard the same day. 9. The court made an EPO, limited in time to 10 June 2008, for the following reasons: “There is significant risk of further harm – emotional and physical abuse if [K.] is not removed from his current environment. We are concerned about the mother consuming alcohol to excess when in sole charge of [K.] and further possible violent conflict when father is released probably on bail tomorrow. This is in light of previous domestic violent incidents between the parents in [K.]’s presence, which could lead to further physical harm to [K.]. 10. The court took into account K.’s right to respect for his family life but considered that he should be protected and placed in a safe environment. 2. The care proceedings before the Family Proceedings Court a. The interim care orders and preparation for hearing 11. On 5 June 2008 the local authority applied for a care order (see paragraph 93 below) in respect of K., with interim care orders (see paragraph 95 below) as requested. In its application, the local authority referred to the high level of police involvement in the family due to incidents of domestic violence and alcohol abuse and the need for a full assessment to be undertaken. 12. On 6 June 2008 the applicant attended a meeting where she informed the local authority that she had separated from P.C. She then had a contact session with K. and after the session, was observed walking with and talking to P.C. 13. A hearing took place on 10 June 2008 and an interim care order (“ICO”) was made, to expire on 8 July 2008. 14. K. was placed in the care of foster parents, with frequent contact with the applicant and P.C. A guardian was appointed for K. In her Initial Analysis and Recommendation report, dated 23 June 2008, she described K. as a “very traumatised little boy”. She strongly recommended the appointment of a psychologist as soon as possible. 15. As P.C. contested the proposed renewal of the ICO, a contested ICO hearing was fixed for 8 July 2008. 16. The applicant and P.C. attended Turning Point to assess their alcohol dependency. Reports were prepared, on 30 June 2008 in respect of the applicant and on 1 July 2008 in respect of P.C. It was found that neither party was dependent on alcohol. In the applicant’s report, it was noted that she acknowledged the existence of a long, abusive relationship with P.C. that had involved the use of alcohol and that she had talked about the difficulty of dealing with the recent loss of her mother. The report recommended bereavement counselling, emotional support and activities to help the applicant rebuild her self-esteem and confidence to be able to cope with the changes occurring in her life. 17. At the contested ICO hearing on 8 July 2008 the court had sight of the guardian’s report and heard evidence from the guardian, three social workers and P.C. It made a further ICO, to expire on 5 August 2008, referring to the history of domestic violence and noting: “We understand that [P.C.] and [the applicant] are currently residing at different premises but we are not convinced that they have separated on a permanent basis ... We have had sight of the Turning Point reports in which it is reported that [P.C.] and [the applicant] are not alcohol dependent; however we are not convinced that they will not continue to drink to excess in the future. Further counselling in respect of their alcohol consumption will benefit both parties as would domestic violence counselling. We are pleased that [the applicant] has made efforts to access help from various agencies ...” 18. The court noted that the guardian supported the renewal of the ICO and continued: “... [K.] should not be returned to either parent until each has been assessed for their parenting ability and receive any necessary support. ...” 19. It considered K.’s right to respect for his family life and concluded that the making of the ICO was a proportionate response to the situation. 20. Further ICOs were made on 5 August 2008, 2 September 2008, 30 September 2008, 28 October 2008, 11 November 2008, 2 December 2008, 15 December 2008, 12 January 2009, 9 February 2009 and 9 March 2009. 21. In the meantime, K. was examined by D.I., a psychologist, who produced an expert report dated 13 August 2008. 22. As to K.’s perceptions of his mother and father, the report noted that he both loved and feared his parents and that his main concern was the arguing and shouting that he associated with his parents. Regarding the possible psychological implications of the domestic violence and alcohol abuse he had witnessed, D.I. described the emotional damage suffered by a child growing up in an “invalidating environment”. He noted that K. demonstrated some of the characteristics of such damage, but was also showing signs of resilience. 23. In terms of therapeutic work which should be undertaken with K., D.I. said that K.’s main need was to have a stable and safe environment with predictable relationships where he could play and grow in self-esteem, and have experiences which developed happy feelings and a sense of self efficacy. D.I. noted that K. appeared to be experiencing this in foster care and at school and commented: “[K.’s] parents would do well to consider the positive effects that [K.’s] relationship with them can have upon his development and sense of identity should they address the issues that underlie their violence and drinking.” 24. He highlighted the need to focus on K.’s sense of identity and his emotional development, problem solving, cognitive functioning, self-esteem and social competence. 25. The social worker appointed to K. carried out a formal parenting assessment of the applicant from July to September 2008, based on five sessions between the applicant and social workers and observations of the supervised contact sessions with K. When the assessment began the applicant was living alone at the family home. She told the social worker that she had ended her relationship with P.C. and she would not consider re-establishing it unless he changed his behaviour towards her and his relationship with alcohol. All the meetings took place while the applicant was separated from P.C. However, on 13 August 2008 P.C. confirmed to the local authority that he had moved back into the family home and was once again in a relationship with the applicant. The applicant subsequently informed that court that she and P.C. had reconciled. She explained that they had been together for a long time and that the relationship had, with the exception of the previous twelve months, been strong and stable. 26. In an undated parenting assessment report in respect of the applicant completed after the applicant’s reconciliation with P.C., the social worker noted that she had discussed with the applicant domestic violence and controlling behaviour, and the support that she could access. When asked how she would manage situations in the future if she was no longer in a relationship with P.C. and he came to visit, the report noted: “[The applicant] said she would allow him in for a coffee. [The applicant] then added that she would not allow alcohol in the house and would throw him out if this happened. [The applicant] was not able to reflect on her past experiences involving [P.C.] and was unrealistic in her responses in regard to this.” 27. The report recorded that although the applicant admitted that she became more argumentative after drinking, she did not consider that the arguments had had any impact on K. or that her parenting ability had been impaired after drinking. She continued to receive support from Turning Point and attended weekly. 28. The social worker commented on the fact that on each of the visits, she had found the applicant’s home to be in good order, clean and tidy. She observed that the applicant demonstrated a strong loving bond towards K. and that she offered him appropriate affection. However, observations of K.’s behaviour and responses suggested that he had developed an insecure attachment. The applicant’s knowledge of the dietary needs of a child were found to be adequate, although in practice it appeared that they ate convenience foods rather than fresh vegetables and that the applicant allowed K. too many unhealthy snacks. The social worker also raised some concerns regarding the applicant’s ability to address and treat signs of illness in K. and the lack of attention paid to K.’s dental care. She noted that the applicant showed poor knowledge of the need for visual stimulation, interaction and setting appropriate routines and that she had difficulty interacting with K. and keeping him occupied for any length of time. 29. The social worker considered that the applicant deferred to P.C. on the majority of issues, apparently because she was afraid of the repercussions of challenging him. The applicant was unable to recognise that the behaviour she described was abusive and that it would have a detrimental effect on K. She unintentionally put K. at risk because her perception of parenting did not afford her the ability to identify risk, make decisions and set appropriate boundaries for K. The report concluded: “[The applicant] has informed me that she is in a relationship with [P.C.] and that their intentions are to parent [K.] together. [The applicant] cannot be considered a protective factor within the relationship. The Local Authority are concerned about the significant risk that this will place on [K.] if in the care of his parents in terms of all aspects of his development, safety and security. It is therefore the view of the Local Authority that should [K.] be returned to the care of [the applicant and P.C.] he would be [at] risk of further significant harm.” 30. An undated parenting assessment report of P.C. indicated that a significant concern was that he displayed aggression, intimidation and controlling behaviours when not under the influence of alcohol. 31. Alcohol tests of the applicant and P.C. from samples collected on 30 September and 11 September respectively showed no evidence of frequent excessive alcohol consumption. 32. The social worker prepared further statements for the court following the parenting assessment reports. In a statement dated 21 September 2008, it was noted that K. had become upset on occasions during contact with the applicant and said that he wanted to go home. 33. Between October 2008 and January 2009 the applicant and P.C. attended a Time to Talk parent support group and had three one-to-one parenting sessions. 34. D.I. also carried out a full psychological assessment of both parents and produced an addendum report dated 3 February 2009. In his report, D.I. noted: “... [K.] told me when asked that he wants to go home, that his mum likes him and added that his dad takes him out and gives him presents ...” 35. D.I. observed that K. displayed fewer characteristics of emotional trauma than in the previous meeting. When questioned about his relationships with his family he indicated strong positive feelings for his parents, and in particular for his mother. 36. D.I. commented that both parents had told him that they had maintained their abstinence from alcohol, but he said that this would only be tested if they were challenged by situations which mirrored the original issues which prompted them to turn to alcohol. As to their ability to prevent further domestic violence, D.I. referred to incidents of aggressive behaviour by P.C. which he had personally witnessed and noted that this did not “augur well for someone who considers that their aggression is due only to drinking behaviour”. He considered that he had insufficient details of P.C.’s history to make a more accurate prediction. He criticised the parents’ lack of self-awareness and noted that there was still work to be done in this regard. In terms of the parents’ ability to engage meaningfully with professionals, D.I. commented only on P.C., making reference to problems encountered in this respect. Similarly, in so far as their commitment to the care of K. was concerned, D.I. referred to certain indications of P.C.’s level of commitment, with no specific examples of the applicant’s conduct, while making the overall assessment that he was not convinced that the parents had fully taken on board what they needed to learn from their mistakes and what new parenting behaviour they were going to practise. 37. As regards the aspects of each parent’s psychological profile that were likely to assist or hinder their parenting of K., D.I. explained that serious limitations were placed on his assessment of P.C. by his lack of cooperation. In respect of the applicant, he explained: “[The applicant’s] profile ... is characterized by prominent compulsive, narcissistic and histrionic patterns. This does not imply that she has a personality disorder but does have patterns of behaviour that need addressing ... These patterns need to be addressed by [the applicant] in counselling to address bereavement and domestic violence. Otherwise they will have an impact that hinders good enough parenting. [The applicant’s] love for [K.], her physical parenting to date, participation in the Time to Talk programme and her declared abstinence from drinking thus far are to be praised and built upon.” 38. D.I. noted that K. appeared to see the applicant as the main source and object of his love, but cautioned that K. might be idealising the situation at home as he was no longer there. He continued: “... [K.] is attached to both his parents. He stated a strong preference to return home. [K.] is less attached to his father than his mother ...” 39. In terms of therapeutic intervention required, D.I. considered that the applicant needed to address her role in the fighting with P.C., with discussion about her drinking, her lack of assertiveness and her inability to impose boundaries on K. 40. On 20 February 2009 the social worker filed her final statement on behalf of the local authority with the court. She indicated that since K. had been taken into care in June 2008, there were no recorded domestic incidents and that both parties had informed her that they were still abstaining from alcohol. 41. She reported that both the applicant and P.C. had “continued to work with professionals to a limited extent”. She gave examples of P.C.’s unwillingness to work with the local authority and how the applicant often found herself in the middle of conflicts between the two. 42. As to K’s own views, she noted: “... When I have tried to ask [K.] how he would feel about going home he has changed the subject.” 43. In her analysis and conclusions, she noted: “In a very simplistic form it may appear that [K.] is in the care of the local authority due to his parents drinking and violence and as the parents have self reported that there have been no further incidents and we have no evidence to say there are then [K.] should return home. However there are a significant number of other factors which evidence that there remain extensive concerns.” 44. She referred to attempts by the local authority to conduct a parenting assessment prior to K.’s removal into care, which had been unsuccessful as a result of the parents’ failure to engage. She also referred to the separation of the applicant and P.C. in 2008, which she considered not to have been genuine from the very outset. She raised concerns about K.’s health, and notably his lack of immunisations and bad dental condition, which she noted appeared to some extent to result from P.C.’s difficult behaviour. She explained that her professional opinion was that P.C. had engaged only superficially in the parenting assessment and had failed to recognise or accept his shortcomings and their impact on his parenting. She continued: “We acknowledge that [the applicant] is in a very difficult position and we have seen that she has made efforts to work with the local authority but is often stuck in the middle of the conflict [P.C.] has with the department. She has been successful in persuading [P.C.] to comply with some issues, but on occasions she has been unable to share information with him until she has chosen the right time as she predicted ‘he will blow’. However [the applicant] is a very vulnerable woman who is not strong enough to separate or manage on her own. She is aware of the conflict [P.C.] creates with others and tries to be the ‘peacemaker’ ...” 45. As to the parents’ abstinence from drinking, she noted that it was not possible to predict whether this would continue, partly because of their failure to participate in any meaningful assessments, and she referred in this regard to P.C.’s refusal to provide relevant information. Similarly, as regards the likelihood of further incidents of domestic violence occurring, she noted that past behaviour was the best predictor, and that P.C. had a history of violence in previous relationships. He had done minimal work to address concerns and nothing which could give the local authority confidence that K.’s needs would be met appropriately. She continued: “... [T]he level of cooperation and lack of awareness in my professional opinion is sadly lacking and has not given the local authority any information which enables them to make a decision that it is appropriate for [K.] to return to his parents. The court could consider that a further opportunity is given to [the applicant and P.C.] to undertake that assessment. However it has been made very clear to them during the court process that this information is essential in informing the court care plan and it is unlikely that [P.C.’s] attitude is likely to change in the short term and we cannot delay planning for [K.] any further. [The applicant and P.C.] have been aware of the seriousness of this case from the outset and despite the possibility of their son not being returned to their care they remain resolute in their attitude and lack of acknowledgment of the issues. [P.C.] in particular has deflected the issues away from his parenting of [K.] and the issues within the family focussing on acrimonious relationships with professionals and losing sight of [K.’s] needs.” 46. In her professional opinion, K. had an idealised view of returning home, seeing the opportunity for treats and presents with the ability to manipulate his parents into giving him all he wanted with few boundaries and controls. He maintained his strong desire to have supervised contact to ensure that the arguments between his parents did not recommence. 47. In conclusion, she repeated her view that K. would suffer significant harm if he returned home as their drinking and violence were likely to reoccur. Neither parent had engaged in any meaningful assessments which would indicate a positive outcome were K. to return home. The parents were committed to one another and P.C. had shown no ability to work in partnership with the local authority. She considered that K. was of an age where there was a very limited time window for achieving legal permanence and long-term fostering with ongoing parental contact would not be in his best interests, given his parents’ level of negative influence in his life. She was of the view that K. needed the opportunity to form attachments with long-term carers without the placement being undermined by his parents. She therefore concluded: “The local authority respectfully recommends to the court that [K.’s] long term interests can be best met through adoption preferably with some form of contact with his parents. [K.] is only 7 and deserves the opportunity to live in a family where he will be legally secure, developing positive attachments without feeling disloyal to his parents. He needs to be with a family who can exercise parental responsibility and make decisions in [K.’s] life without the negative influence of the birth parents.” 48. She asked the court to make a care order and a placement order in respect of K. 49. On 17 March 2009 the applicant filed a statement in response. The statement noted: “I can confirm that not only have there been no reported incidents between myself and my partner [P.C.], but also there have been no actual domestic incidents ... I confirm that we do not consume alcohol and although we have indicated that we would be willing to undergo further testing when we have met on contact appointments the same has never been pursued ...” 50. She refuted several aspects of the social worker’s statement, noting: “... It often feels like whatever we are being asked to do we are then asked to do more. I certainly do not agree that I have only worked with professionals to a limited extent.” 51. She concluded that while she and P.C. had hoped that K. could be returned to their joint care, they both recognised that the social services’ opinion of P.C. was so damaged that their only chance of parenting might be to do it separately. The applicant indicated that for this reason, she and P.C. were thinking of separating so that she could parent K. on her own. She requested the court not to make a placement order and to return K. to her care. 52. A statement from P.C. confirmed the absence of any domestic incidents and the fact that neither he nor the applicant had consumed any alcohol. No mention was made of the possibility of separation. 53. The guardian’s Final Analysis and Recommendations report was dated 30 March 2009. It was based on full consideration of the welfare checklist (see paragraph 97 below). In the section of her report dealing with recent developments, she indicated that the status of the relationship between the applicant and P.C. was not clear as they had recently informed the authorities that they had separated. The report also referred to information regarding a violent domestic incident at the home on 14 March 2009 when the police were called. The applicant had told the police that P.C. had hit her, although he denied it. The guardian explained that the information had been received after the report had been prepared in draft, but noted that the incident added “cogent testimony” to the detail of her report. 54. The guardian compared K. as she then saw him with his condition in the summer of 2008 and reported that he had grown in confidence and settled in all aspects of his placement. He presented as happy and settled, embracing family life in his carers’ home and making very good progress at school. 55. As to K.’s wishes and feelings, in November 2008 he had appeared confused about returning home. He had felt safe with his carers and gave mixed messages about whether he wished to stay with them or return home. He was firm in his view that he did not want contact with his parents without social workers being present. In March 2009 he indicated that he wanted to go home to live with his parents. When questioned about how that would work since he wished to have supervised contact with them, he replied that social services would also be there. She observed: “These statements clearly demonstrate what [D.I.] has stated in ‘that [K.] both loves and fears his parents – his father more so’. He wants to go home but wants the safety net of social workers being in his home to protect him.” 56. The report continued: “In my opinion [the parents] both needed to access treatment programmes for their drinking and violence, they would also have to begin to discover, reflect and recover from the underlying issues that led to the drinking and violence in the 1 st place ...” 57. The report went on to consider in more detail P.C.’s behaviour and history. 58. The guardian also commented on the parenting assessments conducted, noting in respect of the applicant that she appeared to lack understanding of the impact of arguments on K. and of alcohol on her parenting ability, and that she failed to see that P.C.’s behaviour towards her was abusive and controlling. The guardian considered the crux of the issue for reunification to be that the parents had not engaged in or completed treatment programmes for alcohol or domestic abuse, noting that P.C. refused to accept that he was a perpetrator. She concluded: “There can be no delay for K. His parents have sadly not even begun to do the work that is needed to support and assist them with their fundamental problems/difficulties and the underlying issues that predispose their drinking and violence. Without the input they need I would expect their behaviour to revert to type, especially in the case of [P.C.], which would fundamentally seriously impact on K. causing him further significant harm if he was returned to their care.” 59. She recommended that the court endorse the local authority plan for a care order with a plan for adoption. b. The hearing before the Family Proceedings Court 60. A four-day hearing took place before the Family Proceedings Court between 6 and 9 April 2009. It had before it applications by the local authority for a care order and for a placement order. 61. At the start of the hearing, the court was presented with a new case on behalf of the applicant. In a position statement dated 5 April 2009, she said that on 14 March 2009 she had discovered that P.C. had been to a pub and had drunk two pints of beer. She had remonstrated with him for drinking when they were so close to having K. returned to them and he had pushed her into a chair and slapped her. She had called the police. She said that the relationship with P.C. was over, and that from the guardian’s report she had learned new information about domestic violence in P.C.’s past relationships. She was planning, with the help of a recent inheritance, to rent a property near her sister, with the support of her sister and P.C.’s adult son, P.G. The applicant asked to be given a chance to prove that she could safely parent K. on her own, away from parental conflict, and requested a section 38(6) assessment of her as a sole carer (see paragraph 96 below). She proposed that K. be assessed with her by an independent social worker who would address K.’s relationship with the applicant, the applicant’s parenting abilities and the management of any risks to K. In the interim, she sought a further ICO. 62. In a brief written statement dated 8 April 2009, P.G. said that he intended to sign a joint lease shortly, move in with the applicant and support her as much as he could. 63. The court heard oral evidence. Notes were taken by the clerk and a transcribed note of evidence has been provided to the Court by the respondent Government. However, it is in note form, with no clear distinction drawn between questions asked by counsel and responses made by witnesses. The notes are therefore of limited assistance in identifying the exact nature of the oral evidence given and any conclusions drawn from them should be treated with caution. 64. It appears from the notes that, in his oral evidence, D.I. expressed concern regarding the lack of evidence of a change in parenting skills by the applicant. Some discussion of adoption took place with him. He appeared to agree that if K. could be rehabilitated to the applicant’s care, in circumstances in which his needs were properly met by her, then that would be a better solution than adoption. The notes suggest that he referred to K.’s age and the greater difficulties encountered in seeking to place an older child for adoption. However, he seems to have expressed pessimism about the prospects for change in the applicant’s behaviour, and indicated that his preference was for K. to stay with his foster placement on a long-term basis, although he appeared to recognise that this was not an option. He commented that the applicant had been entirely cooperative with him. His views on the value of a further assessment of the applicant are not clear. 65. The notes suggest that the social worker did not believe that the applicant’s separation from P.C. was genuine. She expressed the view that the applicant was so entrenched in domestic violence and her self-esteem was so eroded that she would be unable to separate properly from P.C. She added that in any event the local authority had already carried out a parenting assessment; a further assessment would unsettle K., disrupt his placement and delay the matching process. 66. The notes confirm that the applicant gave an account of the incident of 14 March 2009. She explained that she had subsequently asked her social worker for help in separating from P.C. She accepted that her statement of 17 March 2009, in which she had said that there had been no further violent incidents, was untruthful. She said she was too scared to tell anyone. She indicated that she had not drunk alcohol since June 2008, nor had she been violent towards P.C. She reiterated that she had decided to move to a new house close to her sister and that P.G. was going to move in with her to assist. She had a fund of GBP 37,000 which she would use for the benefit of K. She would apply for an injunction to prevent P.C. from visiting her, and his contact with K. would have to be supervised. She said that she would undergo any programmes or assessments by a social worker, and that she was willing to see the guardian and D.I. again. She concluded that she had no intention of resuming a relationship with P.C. if K. were returned to her. She had discovered from the guardian’s report how he had treated his older children. She asked for the opportunity to be assessed as a sole parent for K. and accepted that K. would have to remain in care while the assessment took place. 67. Finally, the guardian gave evidence. The notes indicate that she opposed any further assessment of the applicant. It appears that she did not think that the separation was genuine. In any case, whether the separation was genuine or not was immaterial because in order for the applicant to keep herself and K. safe, her personality had to change. It seems that the guardian gave evidence to the effect that a quarter of the children placed for adoption the previous year were K.’s age. She appears to have expressed concern that any work with the applicant to address her issues would require long-term psychological input. She recommended adoption and indirect contact with the parents until they came to terms with the adoption. 68. At the conclusion of the evidence and submissions on 9 April 2009 the court reserved its decision. On 15 April 2009 it handed down judgment. Commenting on the parenting assessments, the court indicated that in its view the contact sessions had generally gone well. It observed: “... We note that [K.] is not distressed when he returns from contact with his parents and understand that during contact he does ask his parents when he can come home and whether they have stopped drinking.” 69. The court found that the threshold criteria for the making of a final care order (see paragraph 93 below) had been established, in light of the parents exposing K. to domestic violence and alcohol misuse causing him emotional and physical harm. It considered its range of powers and the need for a care order, referring to section 1 of the Children’s Act 1989 (see paragraph 97 below) and emphasising that the child’s welfare was the paramount consideration. It continued: “In determining the child’s welfare we have considered the welfare checklist. We have referred to the welfare consideration in the Children’s Guardian’s report and consider this to be comprehensive. We accept the welfare aspects but consequent upon the late position statement by mother, dated 5 April 2009, reach a different conclusion. The Guardian’s report does not address [the parents’] separation. ... At this juncture we believe that this separation is genuine and this therefore leads us into considering whether [the applicant] is capable of meeting [K.’s] needs, which includes protecting him from [P.C.]. This information is not before the court and puts us in great difficulty in deciding whether a care order should be made. The only way to achieve this information would be by making a s.38(6) direction [for an assessment], however this needs to be balanced against a further delay for [K.]. In considering our range of powers we could make an interim care order with a s.38(6) direction for [the applicant] to undergo a parenting assessment as a sole carer for [K.]. We are told that the assessment would take at least three months and realistically five months, before the case can be properly considered again by the court. This delay must be weighed against [K.’s] best interests. Any delay is considered in law to be prejudicial unless it is planned and purposeful.” 70. After examining domestic case-law on the circumstances in which a parenting assessment was appropriate, the court continued: “... We therefore believe in fairness to [the applicant] she should be given one last opportunity to have her parenting ability assessed in respect of [K.]. ...We accept that [K.] needs a secure and stable environment in which to develop and have his needs met but this must be weighed up against him losing the opportunity to be brought up within his birth family, particularly his mother. He is 8 years old next week and has memories of his parents and has continuously asked when he can return to live with them. Although we are sure that he is scared of the domestic violence, through the parents’ separation and an injunction against [P.C.] this risk can be managed. We have considered the human rights issues. We believe that making an interim care order with a s 38(6) direction is necessary and a proportionate response given that neither parent is at present capable of caring for [K.] and that it will provide the court with further crucial information before reaching a final decision ...” 71. The court recorded that this option was not recommended by the guardian, and explained why it disagreed: “The reasons why we have gone against the Guardian’s recommendation are that we believe that a delay of 5 months is acceptable in this case provided that it is purposeful and could prove to be in [K.’s] best interests, should the assessment be positive as this will allow him to be raised with his birth mother, with whom [D.I.] has clearly stated [K.] has a very strong bond. This assessment will provide us with valuable information when reaching our final decision and we intend to return for the final hearing.” 72. The court accordingly made a direction for a section 38(6) assessment and made a further ICO in respect of K. 3. The appeal to the County Court 73. The local authority and the child’s guardian appealed the decision of the Family Proceedings Court, arguing that there was no sufficient basis for the proposal that the applicant would be able to parent K. well enough on her own; that the proposed assessment would duplicate earlier assessments; and that the prospects of any assessment being favourable were too poor to justify the harm to the child of disruption and delay. They argued that the court ought to have made a final care order on the evidence before it. In their notices of appeal, they specifically sought a final care order and a placement order. 74. On 2 June 2009 the social worker lodged a further statement with the court. She confirmed that K. had been informed of the separation of his parents and appeared to have accepted the situation, noting that he seemed more relaxed during contact sessions with his mother and made no reference to having contact with his father. The social worker also confirmed that the applicant had moved to a new address, on the basis of a joint tenancy agreement with P.G., but indicated that P.G. had not actually yet moved into the property. The applicant remained in direct and indirect contact with P.C., and the social worker noted that she appeared to be confused about his behaviour towards her. 75. The statement indicated that the applicant had been informed of the support she could access in order to develop her parenting skills, but observed that to date she had not accessed such support. The applicant had also spoken with a domestic violence worker, although a planned meeting had not taken place as there was some confusion over the venue and had not been rescheduled. The social worker reported that contact sessions between the applicant and K. had been broadly positive. However, she considered that the applicant had demonstrated that she was unable to make a clean break from P.C., which remained a concern to social services. 76. The case came before the County Court on 5 June 2009. By that time, the applicant and P.G. had signed a lease on a property and the applicant had moved there. The judge considered extensive written and oral argument from the local authority and the guardian in support of the appeal. He took into account a substantial skeleton argument submitted by the applicant, who was represented by counsel at the hearing. He also had before him the various reports prepared for the hearing before the Family Proceedings Court and the note of oral evidence prepared by the clerk (see paragraph 63 above). He reserved his decision to 16 June 2009. 77. In the interim, on 6 June 2009, the court issued an order allowing the appeal. In its second paragraph, the order stated: “The Judge is satisfied that the conditions for making a care order exist and accordingly make a placement order, dispensing with the consent of the parents under SS.22(3)(b) and 52 of the Adoption and Children Act 2002.” 78. On 16 June 2009 the judge handed down his judgment on the appeal. He summarised the relevant reports and the oral evidence as recorded in the notes by the clerk, commenting: “10. ... [T]he justices [in the Family Proceedings Court] heard first oral evidence from [D.I.], and then from [the social worker] in support of the local authority’s application. Their evidence is recorded in notes kept by the justices’ clerk. I should observe that these notes are quite difficult to follow and there is sometimes little distinction between questions put and answers given. It is however clear that, when questioned about the mother’s proposal to be assessed as a sole care for [K.], both witnesses were unsupportive. [D.I.] said it was necessary to consider [K.’s] needs now, and that a promise was not the same as change. He said that the mother’s contact had not demonstrated a change in parenting skills. He was struck by the guardian’s report, acknowledging that although the parents loved their child and wanted to change, they could not change. He said that [K.] was insecurely attached to both parents. He said that he was not recommending returning [K.] to his parents as it would cause him emotional and developmental damage. He said that his preference would be for [K.] to stay with his foster placement on a long-term basis, but it appears that he recognised that this was not an option. [The social worker] expressed the view that the mother’s self-esteem was so eroded that she would not be able to separate properly from the father. She said that it was unclear whether the proposed assessment would be residential or in the community, but that in any event the local authority had already carried out a parenting assessment. She said that a further assessment would unsettle [K.], disrupt his placement and delay the matching process.” 79. The judge summarised the evidence of the applicant and P.G. before turning to the evidence of the guardian, in respect of which he noted: “13. ... Again it was clear from her evidence that she opposed the further assessment of the mother. She said that she did not think that the mother could separate from the father simply by moving house, as he had a lot of power and control over her. But whether or not the separation was genuine was immaterial because in order to keep herself and [K.] safe her personality needed to change. This could only happen with long term psychological support. She agreed with [D.I.] that everything would not be fine if the mother separated because she would return to the father.” 80. The judge acknowledged that the decision of the Family Proceedings Court was reached after hearing oral evidence from the principal witnesses over a period of several days. He further acknowledged that the course of action selected by the Family Proceedings Court was one that was open to it. He continued: “17. The temptation for a court to give directions for further evidence, often in the form of a s.38(6) assessment, is often strong. The decision to do so must always be taken in the best interests of the child. The proposition that the ‘... court needs all the help it can get’ has an immediate attraction, but the help must always be directed at achieving the right outcome for the child. Often there is the disadvantage of delay, and it is necessary accordingly to consider the possible outcomes of an assessment. In the present case the justices justified the delay as it retained the prospect of what they regarded as the best outcome for [K.] – rehabilitation to his family. But that outcome depended on the assessment being able to demonstrate that the mother had the capacity to parent [K.] in the long term. Given that the justices’ findings contain the phrase ‘neither parent is at present capable of caring for [K.]’, it is necessary to give consideration as to how the proposed assessment would proceed. If it was envisaged that [K.] would remain with his foster parents and spend increasing periods of visiting contact with his mother the report, ‘if successful’, would merely state that the mother had given all the signs of being able to care for her son, at least in the contact situation. If it was envisaged that there would be a phased return to the mother, with increasing periods of staying contact, then the report would be able to speak with greater confidence of the mother’s capacity to parent her son. In either case however [K.] would be exposed to a degree of disruption of his foster placement, and to the risk of emotional harm should the assessment break down. In both cases the duration of the assessment would be too short to enable the report writer to give any sufficient guarantee that the mother would not, as predicted by the local authority and the guardian, resume her relationship with the father in due course.” 81. He continued: “18. I have come to the conclusion that the evidence about the mother was clear. [D.I.] regarded the mother’s separation from the father as a promise of change, not change itself, and it was his view that there was no change in her parenting skills. The assessment of the mother would never have been able to provide evidence that would be sufficient to justify the refusal of a care order and the decision to return [K.] to his mother, given her shortcomings and the real risk that she would be unable to maintain her separation from the father. In reality the only effect of postponing the decision to make a care order was to delay, and therefore to jeopardise, the process of finding an alternative long term placement for [K.] by way of adoption ... In these circumstances the decision of the justices must be categorised as wrong, and must be set aside ...” 82. He therefore allowed the appeal, indicated that he was satisfied that the conditions for making a care order existed and accordingly made a placement order, dispensing with the consent of the parents, under sections 22(3)(b) and 52 of the Adoption and Children Act 2002 (“the 2002 Act” – see paragraphs 99 and 101 below). He added: “I have come to the above conclusions independently of information which I was given at the outset of the hearing before me about P.G.’s failure so far to join the mother at her new accommodation, her further contact with the father at public houses, and her taking of small quantities of alcohol. Nonetheless this information tends to confirm the pessimistic view expressed about the mother’s inability to separate from the father. ... I do not propose that the judgment be formally given at a court hearing, although if there is anything that requires my further attention in court, an appropriate hearing can be arranged.” 83. On 2 July 2009 K. informed the applicant that he was not happy with the decision of the judge and that he wanted to come home. 4. The appeal to the Court of Appeal 84. The applicant sought leave to appeal the judgment of the County Court, arguing that as there had previously been no care order in place, the judge should not have made a placement order without having due regard to the responsibilities placed on him by section 1 of the 2002 Act (see paragraphs 103-104 below). In particular, she contended, the judge should have considered the child’s ascertainable wishes and feelings regarding the decision and the relationships which he had with relatives and any other relevant person. 85. Permission to appeal was refused on the papers on 18 September 2009 on the ground that the County Court judge had been sitting in an appellate capacity, that he had reached a conclusion that was clearly open to him and that he had explained his conclusion most clearly. The applicant renewed her request for leave. An oral hearing subsequently took place on 28 October 2009. 86. On 24 November 2009 the Court of Appeal handed down its judgment on the request for leave to appeal. In relation to the applicant’s complaint that the County Court had failed to take into account relevant considerations, and in particular had failed to have regard to the welfare checklist, the judge delivering the opinion of the court noted: “Her proper remedy in my judgment was to take advantage of the judicial offer in the final sentence of the [County Court] judgment ... She could have asked the judge to clarify the order that he was making and to indicate in his judgment how he arrived at such a conclusion. She could equally have asked him for permission to appeal. None of those things were done in the county court and a notice of appeal was filed in this court ...” 87. He continued: “... it seems to me on fuller investigation that [the applicant’s case] lacks merit. First of all, the judge was reviewing a decision from the magistrates who had, I suspect out of understandable sympathy for the mother, held off the local authority’s application with an order under Section 38(6). But it is hard to see how that application was justified on the facts and circumstances, and [the County Court’s] decision to set aside an order which stood on flimsy legal foundation is hardly open to challenge. Nor do I think in the end that there is any substance [to the complaint] that he dealt with the outcome in too peremptory a fashion. After all, the mother’s legal team knew from the form of the notices of appeal to the circuit judge precisely what the local authority sought to gain from the hearing. It was quite open to [counsel for the applicant] to submit to the judge that he should not make a placement order even if he were persuaded to make a care order, since there was insufficient material to enable him to carry out the Section 1 review. It seems that she did not make that submission prior to judgment and, as I have already observed, she ignored the opportunity to make it immediately on receipt of the written judgment and to ask the judge to reconsider the order of 6 [June].” 88. He concluded that there was no error of law in the County Court’s decision and dismissed the application for permission to appeal. 5. Subsequent events 89. A final supervised contact between K. and the applicant took place in December 2009. 90. K. was placed with a prospective adoptive parent on 18 January 2010. 91. On 5 May 2010 the applicant made an application to the court for contact with K. pursuant to section 26(3) of the 2002 Act (see paragraph 102 below). This was refused on 16 September 2010. No court decision has been submitted to the Court but it appears that there were ongoing concerns about the level of the parents’ separation. In a statement to the court the social worker said that K. was forming a positive attachment to his prospective adopter and that he had unhappy memories of his life with his parents. In her professional opinion direct contact would undoubtedly cause K. stress and anxiety which would impact on the stability of his placement. The guardian filed a report along similar lines. It is unclear whether the applicant sought leave to appeal. | This case concerned childcare proceedings in respect of the applicant’s son, born in 2001, which had resulted in an order authorising the child to be placed for adoption because of concerns about her relationship with the child’s father. The applicant complained in particular about the courts’ refusal to order an assessment of her as a sole carer for her son. |
696 | Display of a symbol associated with a political movement or entity | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and lives in Budapest. 6. On 9 May 2007 the Hungarian Socialist Party (MSZP) held a demonstration in Budapest to protest against racism and hatred (hereinafter: MSZP demonstration). Simultaneously, members of Jobbik, a legally registered right-wing political party assembled in an adjacent area to express their disagreement. The applicant, silently holding a so-called Árpád -striped flag in the company of some other people, was observed by police as he stood nearby, at the steps leading to the Danube embankment (the location where in 1944/45, during the Arrow Cross regime, Jews were exterminated in large numbers). His position was close to the MSZP event and a few metres away from the lawn of the square where the Jobbik demonstration was being held. According to the testimonies which the police officers subsequently gave in court, they had been instructed not to tolerate the Árpád -striped flag if it was displayed closer than 100 metres to the MSZP demonstration. The applicant and other witnesses later stated in court that the holders of the Árpád -striped flag were called “fascists” and “arrow-crossers” by the bystanders. The police supervising the scene called on the applicant either to remove the banner or leave. The applicant refused to do so, pointing out that this flag was a historical symbol and that no law forbade its display. Subsequently he was committed to the Budapest Gyorskocsi Police Holding Facility, where he was held in custody and under interrogation for six hours. After he had been released, the Budapest 5th District Police Department fined him 50,000 Hungarian forints (approximately 200 euros) for the regulatory offence of disobeying police instructions. The applicant’s complaint to the Pest Central District Court was to no avail. 7. On appeal, the court held hearings on 7 December 2007 and 21 February 2008 and upheld the applicant’s conviction. The court was satisfied that his conduct had been of a provocative nature, likely to result in unruliness in the context of the ongoing Socialist demonstration, and that his right to free expression could not be considered as reaching so far as to cause prejudice to public order. Despite the opinion of a heraldic expert, submitted by the applicant and stating that the flag in question was a historical one, the court considered its display offensive in the circumstances, because it had been placed higher than the national flag representing the Republic of Hungary. Therefore, the applicant’s behaviour was considered to have been provocative. | The applicant complained that he had been fined for displaying the striped Árpád flag, which had controversial historical connotations, less than 100 metres away from a demonstration against racism and hatred. |
637 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 5. The first and second applicants were born in 1951 and 1967 and live in Helsinki and Tampere respectively. The applicant company is based in Helsinki. The first applicant is the editor-in-chief of the applicant company and the second applicant is a journalist. 6. On 6 September 2000 a student was allegedly raped at a party which was held to celebrate a local baseball team's victory in the Finnish championship. On 11 May 2001 the applicant company published an article in the magazine Suomen Kuvalehti about this incident entitled “ A student raped at the baseball party”. The content of the article was the following: “A girl studying in K. [name of the city] was raped at the party to celebrate the victory of K.P. [name of the team] last September. Several players of the team participated in the rape. The folk high school of K. confirms that their student was a victim of rape at the party to celebrate the victory of K.P. held on 6 September 2000. The girl had been invited by the gold-medal team to attend “an after party” in a hotel in K. According to the information received by Suomen Kuvalehti, the rapist was one of the players of the team but there were also other players in the hotel room, some of them holding the victim, some of them watching. The rape was interrupted when one of the players of the team entered the room and ordered the others to stop the rape. The student girl is an adult. She has given a written statement about the incident but does not wish, at least for the time being, to report the incident to the police. The folk high school has reported the incident to the city officials, to the leaders of the baseball team and to its main sponsor. K.P. won the second consecutive gold medal in the Finnish championship league last autumn. The team defeated S.J. straight 3-0.” 7. The article did not include any photographs. Moreover, the statement “Baseball winning party ended in a rape” was printed on the cover of the magazine. 8. The players had not been contacted for their comments before the article in question was published but the magazine published in its next issue a reply given by them in which they denied being guilty of any crime. 9. The content of the article was based on a statement given by the victim to the folk high school of K. on the following morning and which had been corroborated by two witnesses. Several other persons had also made statements supporting the victim's account of the facts. 10. The police started to investigate the alleged rape after the article had been published. According to a press release issued by the police on 19 April 2002, the victim of the alleged rape was not able to identify the offender or the offenders nor was she able to clarify the events in such detail that the offence could be attributed to a certain person or persons. Consequently, the National Bureau of Investigation ( keskusrikospoliisi, centralkriminalpolisen ) interrupted the pre-trial investigation. 11. On 30 October 2002 the public prosecutor brought charges for aggravated defamation against the first applicant, the editor-in-chief of the applicant company, and the second applicant, the journalist. The baseball team pursued a compensation claim against all the applicants, which was joined to the criminal charges. 12. On 26 March 2003 the Espoo District Court ( käräjäoikeus, tingsrätten ), after an oral hearing, sentenced the first and second applicants to pay sixty day-fines, amounting to 3,540 and 1,920 euros (EUR) respectively, for aggravated defamation. Moreover, all the defendants in the domestic proceedings were jointly and severally ordered to pay the baseball team EUR 89,000 plus interest for non-pecuniary damage as well as for costs and expenses. The court found that the statement made by the rape victim had not been reliable since she had not brought the issue to the police's attention. The local public had not been aware of the incident until the article in question was published in the mass media. All members of the baseball team had suffered non-pecuniary damage due to the false accusations published in the article. The court concluded that the accusations were so serious that their accuracy should have been verified very carefully, which the applicants had failed to do. As to the compensation awarded, the court noted that the defamation was directed at all players of the team and that they could receive compassionate support from each other. The court took this into account when reducing the amount of compensation awarded for their suffering. 13. On 9 May 2003 the applicants appealed to the Helsinki Appeal Court ( hovioikeus, hovrätten ), claiming that they had had strong reasons to believe that the accusations were true. If the same evidence had been presented in criminal proceedings, it would have led to the conviction of the offender. The police had been aware of the incident but had not done anything even though rape was an offence that always required ex officio public prosecution. The applicants claimed under Article 10 of the Convention that their right to freedom of expression had been violated. 14. The Helsinki Appeal Court held an oral hearing from 6 to 8 June 2005. On 11 October 2005 it upheld the Espoo District Court's judgment. The Appeal Court stated the following: “Freedom of expression and protection of private life and honour are fundamental rights. According to Article 10 § 1 of the Constitution, everyone's honour is guaranteed. Freedom of expression and protection of honour are also human rights protected by the European Convention on Human Rights. Therefore, when interpreting the extent of these fundamental rights, the case-law of the European Court of Human Rights must also be taken into account. ... According to Article 10 paragraph 2 of the European Convention on Human Rights, the exercise of freedom of expression may be subject to such restrictions and penalties as are prescribed by law and are necessary in a democratic society, for the protection of the reputation of others. The European Court of Human Rights has, inter alia, in its judgment Karhuvaara and Iltalehti v. Finland of 16 November 2004 taken a position with respect to the freedom of expression of journalists, stating that the press must not overstep certain bounds in respect of the rights and the reputation of the others, although journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation. Similarly in the case Pedersen and Baadsgaard v. Denmark of 17 December 2004. According to Article 6 paragraph 2 of the European Convention on Human Rights, everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The European Court of Human Rights has found in the case Pedersen and Baadsgaard v. Denmark of 17 December 2004 that the ordinary journalistic obligation to verify a factual allegation required that the journalists should have relied on a sufficiently accurate and reliable factual basis which could be considered proportionate to the nature and degree of their allegation, given that the more serious the allegation, the more solid the factual basis had to be. In the case “ Wirtschafts-Trend” Zeitschriften-Verlagsgesellschaft mbH v. Austria of 14 November 2002 the above-mentioned court stated that, as the case had only reached an early stage of the criminal proceedings, particular care had to be taken to protect a person against “trial by the media” and to give effect to the presumption of innocence. It must be decided on the one hand whether the honour of [the players] has been violated and on the other hand, whether there were sufficient reasons to restrict [the applicants'] freedom of expression. The article in question mentions that some of the players of the K.P. were guilty of rape. As it was mentioned in the article that the rape took place at the party to celebrate the victory of K.P., one can reasonably think that it was especially the players of the winning team that were involved. [The second applicant] has confirmed during the Appeal Court proceedings that by players he had meant the players of the winning team. The article was written in such a manner that any one of the players could have been guilty of a serious crime. The maximum sanction for the alleged crime is ten years'imprisonment. Before the publication of the article, not even the pre-trial investigation had started. Labelling someone guilty before a matter has been resolved by a court of law would mean rendering a premature public judgment, the consequences of which could be difficult to repair. Also and from the general point of view, taking into account ultimately the ability of the courts to function, the public must not have false expectations or misunderstandings (for example KKO 2000:54). The allegation has violated [the players'] right to the presumption of innocence. Moreover, the allegation of having committed a serious crime is an act that is conducive to causing damage and suffering or contempt. On the above-mentioned grounds the Appeal Court finds, like the District Court, that [the players'] honour has been violated. [The applicants] have alleged in the Appeal Court that the police of K. had known about the rape but had not taken any measures. Concealing a serious crime is an issue of social relevance about which the press must be able to write. However, the article does not mention that the police tried to conceal the matter or that the folk high school or anybody else had even informed the police. On the contrary, the article mentioned that the alleged victim did not want to report the incident to the police. Even though according to the article the folk high school had reported the incident to the city officials, to the management of the baseball team and to its main sponsor, this part of the article does not, bearing in mind the possibility of the said instances to act in the matter, show any intention to conceal the matter. On the above-mentioned grounds, the Appeal Court finds that the essential function of the press in the core area of freedom of expression and as a guardian against misuse of power in a democratic society is not at stake in the present case, even though the pre-trial investigation into the alleged rape was started only after the publication of the article. [The first and second applicants] have not demonstrated that they had sufficient reasons to believe that the allegations made in the article were true. They have stated that they did not even try to contact [the victim], the players or their team. [The first and second applicants] have declined to reveal their sources. By not revealing their sources, they have taken the risk of possibly being convicted for defamation. As stated above, there is no indication that the alleged rape was commonly known in K. before the publication of the article. By relying solely on the statement made by the [victim], in which the perpetrators were not identified in any other way than that the rape had taken place at the winners'party, [the first and second applicants] could not have reasonably considered the statement as being true. The statement was made by private persons and in order that the folk high school could later demonstrate that it had given sufficient instructions in the matter. The statement had not been written on [the victim's] initiative. One could not reach such a conclusion on the basis of the statement that only some of the players were guilty of rape. [The first and second applicants] have failed to verify sufficiently that the information about the players being guilty of rape was true, although they had had the possibility to clarify the issue. The nature and the seriousness of the crime required that the article was particularly accurate. There are no reasons to estimate that [the players'] right to honour would be lesser than [the first and second applicants'] right to freedom of expression. Restricting [the first and second applicants'] right to freedom of expression was necessary in order to protect [the players'] honour and their presumption of innocence. ... .” 15. On 12 December 2005 the applicants applied for leave to appeal to the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds for appeal relied on before the Appeal Court. 16. On 15 May 2006 the Supreme Court refused leave to appeal. | The applicants were an editor-in-chief and a journalist and a publishing company. They complained about their conviction of defamation following publication of an article stating that a student had been raped in September 2000 by members of a baseball team at a party to celebrate their victory in the Finnish championship. The applicants had been ordered to pay over 80,000 euros in damages to compensate each member of the baseball team. |
72 | Parental authority, child custody and access rights | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. Introduction 6. Mrs Ingrid Hoffmann is an Austrian citizen residing in Gaissau. She is a housewife. 7. In 1980 Mrs Hoffmann - then Miss Berger - married Mr S., a telephone technician. At that time, they were both Roman Catholics. Two children were born to them, a son, Martin, in 1980 and a daughter, Sandra, in 1982. They were baptised as Roman Catholics. 8. The applicant left the Roman Catholic Church to become a Jehovah ’ s Witness. 9. On 17 October 1983 the applicant instituted divorce proceedings against Mr S. She left him in August or September 1984 while the proceedings were still pending, taking the children with her. The divorce was pronounced on 12 June 1986. B. Proceedings before the Innsbruck District Court 10. Following their separation, both the applicant and Mr S. applied to the Innsbruck District Court ( Bezirksgericht ) to be granted parental rights ( Elternrechte ) over the children. Mr S. submitted that if the children were left in the applicant ’ s care, there was a risk that they would be brought up in a way that would do them harm. He claimed that the educational principles of the religious denomination to which the applicant belonged were hostile to society, in that they discouraged all intercourse with non-members, all expressions of patriotism (such as singing the national anthem) and religious tolerance. All this would lead to the children ’ s social isolation. In addition, the Jehovah ’ s Witnesses ’ ban on blood transfusions might give rise to situations in which their life or their health was endangered. With regard to the son, Martin, Mr S. noted that he would eventually have to refuse to perform military service or even the civilian service exacted in its stead. The applicant claimed that she was better placed to take care of the children, being in a position to devote herself to them completely, and as a mother better able to provide them with the necessary family environment. She alleged that Mr S. did not even provide for their maintenance, as he was both legally and morally bound to do. She acknowledged, however, that she intended to bring the children up in her own faith. The youth office of the Innsbruck District Authority ( Bezirkshauptmannschaft, Abteilung Jugendfürsorge ) expressed a preference for granting parental rights to the applicant; it referred to, inter alia, the expert opinion of a child psychologist. 11. By decision of 8 January 1986, the District Court granted parental rights to the applicant and denied them to Mr S. According to its reasoning, only the children ’ s well-being fell to be considered. The material living conditions of both parents were such that either of them would be able to take proper care of the children; however, the father would need his mother ’ s help. The children had stronger emotional ties with the applicant, having lived with her for a year and a half already, and separating them from her might cause them psychological harm. It followed that it was preferable to leave the children with the mother. The District Court further observed: "As against this, it has been stated by the children ’ s father, essentially as his only argument, that Ingrid S. ’ s membership of the religious community of the Jehovah ’ s Witnesses has serious detrimental effects on the children. As to this, it ought to be made clear right away that in no case are parents ’ religious convictions as such a relevant criterion in deciding on parental rights and duties pursuant to Article 177 para. 2 of the Civil Code. These rights cannot be refused to a parent or withheld from him for the sole reason that he or she belongs to a religious minority. However, in the concrete case it needs to be examined whether the mother ’ s religious convictions have a negative influence on her upbringing of the children which should be taken into account and whether their well-being is impaired as a result. It appears in particular that Ingrid S. would not allow blood transfusions to be given to her children; that for herself she rejects communal celebration of such customary holidays as Christmas or Easter; that the children experience a certain tension in relation to an environment which does not correspond to their faith; and that their integration in societal institutions such as kindergarten and school is made more difficult. However, the father ’ s apprehension of complete social isolation as a result of the mother ’ s religion does not appear well-founded in the light of the established facts. In addition, no possible dangers to either child ’ s development have appeared in the course of the establishment of the facts. It is true that the facts adduced (blood transfusions, holidays, impaired social integration) are in principle capable of having detrimental effects on the children. This point must now be examined in the context of the particular case. It appears first of all that the father ’ s argument that Martin and Sandra would be exposed in an emergency to serious danger to their life and health by the refusal of a blood transfusion is not of decisive importance. In the absence of parental permission for a medically necessary blood transfusion to either child, such permission can be replaced by a judicial decision in accordance with Article 176 of the Civil Code (compare the decision of the Innsbruck Regional Court ( Landesgericht ) of 3 July 1979, 4R 128/79). In any case, according to this legal provision, anyone can apply to the court for an order that is necessary to ensure the welfare of the child when the parent endangers it by his conduct. In view of this possibility of applying to the court, which is available at all times, no danger to the children need be inferred from the mother ’ s attitude to blood transfusions. As for Ingrid S. ’ s rejection of holidays, notice must be taken of her express agreement to allow the father to take the children on such occasions and celebrate them with the children as he sees fit. The mother ’ s religious convictions thus do not deprive Martin and Sandra of the possibility of celebrating these holidays in the usual way, so that no detriment to the children can be found in this regard either. Of the reservations with regard to the mother ’ s upbringing of the children resulting from her religion the only remaining one of any significance is the circumstance that Martin and Sandra will in later life experience somewhat more difficulty in finding their way in social groups as a result of the religious precepts of the Jehovah ’ s Witnesses and will find themselves to some extent in a special position. However, the court cannot consider this so detrimental to the children ’ s welfare that they should for that reason not be entrusted to their mother, with whom they have such a close psychological relationship and to whose care they are accustomed. Careful consideration must lead to the conclusion that in spite of more difficult social integration, as discussed above, it appears to be more in the interest of the children ’ s welfare to grant parental rights to the mother than to transfer them to the father." C. Proceedings before the Innsbruck Regional Court 12. Mr S. appealed against the above decision to the Innsbruck Regional Court ( Landesgericht ). 13. The Regional Court rejected the appeal by decision of 14 March 1986. Its grounds for so doing were the following: "The main thrust of the appeal is to argue that the decision of the first-instance court is incompatible with the children ’ s welfare in view of the mother ’ s membership of the religious community of the Jehovah ’ s Witnesses. In this connection, the appellant discusses the criteria and objectives peculiar to that religious community and the resulting social attitudes, which are in his opinion wrong; it follows, in his view, that both children are bound to suffer harm if the parental rights and duties are assigned to the mother, and in particular that they may be forced into social isolation removed from reality. The appellant ’ s line of argument in this regard is unsound. The Jehovah ’ s Witnesses, formerly known as Serious Bible Students, a community based upon their own interpretation of the Bible, are not outlawed in Austria; it may therefore be assumed that their objectives neither infringe the law nor offend morality (see Article 16 of the Basic Law in conjunction with Article 9 (art. 9) of the European Convention on Human Rights). Therefore, the mother ’ s membership of that religious community cannot of itself constitute a danger to the children ’ s welfare ... Admittedly, the mother ’ s religion will in all probability affect the children ’ s care and upbringing, and they may come to experience a certain tension in relation to an environment which does not correspond to their faith. The first-instance court has already dealt at length with part of the appellant ’ s arguments that relate thereto and has given detailed and conclusive reasons why the father ’ s objections against assigning the parental rights and duties to the mother cannot in the final instance be decisive. The new points raised on appeal - relating to a lack of understanding of democracy and a lack of subordination to the State - cannot cast doubt on the first-instance decision as regards the children ’ s welfare; it suffices in this respect to recall the legal recognition of the religious community of the Jehovah ’ s Witnesses, which meant, contrary to the appellant ’ s allegation, that the first-instance court did not in fact need to seek ex officio an expert opinion on the objectives or the ‘ nature ’ of the Jehovah ’ s Witnesses. Nor were the first-instance proceedings incomplete because no expert medical opinion was sought regarding the question, which was raised anew on appeal, of blood transfusions, which are rejected by the Jehovah ’ s Witnesses; in the event that a judicial remedy (a decision pursuant to Article 176 of the Civil Code) arrives too late, it will in the final instance be up to the physician treating the patient, when confronted with the problem, to reach a decision, with a view in the first place to life-saving medical action and only in the second place taking into account the rejection of blood transfusions which is peculiar to the Jehovah ’ s Witnesses. The appellant ’ s further line of argument - to the effect that a properly arranged transfer of the children to himself and properly arranged visiting rights for the mother could not cause the same shock as had the mother ’ s forcible removal of the children, and that the decision under appeal had legalised her unilateral action - also fails to convince. The appellant overlooks the fact that, in view of the paramount importance of the children ’ s welfare, the way in which they reached the place where they are currently being taken care of is not necessarily decisive. Even illegal conduct would be of relevance only to the extent that it might, in an individual case, be possible to infer therefrom a lack of suitability for care or upbringing; it is not otherwise decisive for determining the attribution of parental rights and duties whether or not the parent concerned has taken charge of the children without authorisation. It remains true, however, that both children have for a long time developed harmoniously in the mother ’ s care, that there is a closer relationship with her than with the father, and that, whatever the religious or philosophical views of the mother, neither child has suffered any harm in his or her physical or - particularly - psychological development; in fact the appellant could not seriously claim that they had actually suffered in the latter respect." D. Proceedings before the Supreme Court 14. Mr S. lodged an appeal on points of law ( außerordentlicher Revisionsrekurs ) with the Supreme Court ( Oberster Gerichtshof ). 15. By decision of 3 September 1986, the Supreme Court overturned the judgment of the Innsbruck Regional Court, granting parental rights to Mr S. instead of the applicant. It gave the following reasons: "The appellant has not hitherto claimed that the children belonged to the Roman Catholic faith; however, he has stated, and it has in fact been established, that the mother is bringing them up according to the principles of the Jehovah ’ s Witnesses ’ teaching. It is also uncontested that the children do not belong to this confession. The lower courts had therefore to examine whether or not the mother ’ s bringing up the children in this way contravened the provisions of the Federal Law of 1985 on the Religious Education of Children ( Bundesgesetz über die religiöse Kindererziehung ), BGBl ( Bundesgesetzblatt, Federal official Gazette) 1985/155 (re-enactment of the Law of 15 July 1921 on the Religious Education of Children, dRGB ( deutsches Reichsgesetzblatt, German Reich Gazette) I. 939). According to Article 1 of the 1921 Act the religious education of a child shall be decided upon by an agreement freely entered into by the parents, in so far as the responsibility for his or her care and upbringing is vested in them. Such an agreement may be revoked at any time and is terminated by the death of either spouse. Article 2, paragraph 1, of the 1921 Act lays down that if such an agreement does not or ceases to exist, the provisions of the Civil Code on the care and upbringing of children shall extend to their religious education. However, according to Article 2, paragraph 2 of the 1921 Act, during the existence of the marriage neither parent may decide without the consent of the other that the child is to be brought up in a faith different from that shared by both parents at the time of the marriage or from that in which he or she has hitherto been brought up. Since in any case the children do not belong to the faith of the Jehovah ’ s Witnesses, their education according to the principles of this sect (which is not, as the appellant rightly points out, a recognised religious community: see Adamovich -Funk, Österreichisches Verfassungsrecht, [Austrian Constitutional Law], Vol. 3, p. 415) contravenes Article 2, paragraph 2, of the 1921 Act. The Regional Court ’ s failure to apply this provision is obviously in breach of the law. Moreover, the lower courts also failed in their decisions to give due consideration to the children ’ s welfare .... That the mother, as has been established, would refuse to consent to the children ’ s receiving a necessary blood transfusion constitutes a danger to their well-being, since requesting a court to substitute its consent for that of the mother ... may in urgent cases involve a life-threatening delay and medical intervention without seeking the approval of the person entitled to take care of the child is considered contrary to the law .... It has also been established that if the children are educated according to the religious teaching of the Jehovah ’ s Witnesses, they will become social outcasts. In the initial decision as to which of the spouses is to have the right to provide care and upbringing, these circumstances cannot be ignored. Although it is preferable for young children to be taken care of by their mother ..., this applies only provided that all other things are equal .... There is no maternal privilege as regards the attribution of parental right .... The stress caused to the children by being transferred to the care of the other parent, which in any case is usually transitory, has to be accepted in their own best interests .... The file contains no documentary basis for the assumption that a change to another carer ‘ would with a high degree of probability cause the children serious psychological harm ’ .... Even according to the opinion of the lower courts, the father is able to see to the children ’ s upbringing, since they have a good relationship with him and with their grandmother, who would take charge of their care and upbringing during the father ’ s absence at work; the availability of accommodation for the children in the house of the father ’ s parents is assured. Therefore, only transfer of parental rights and duties to the father is in the children ’ s interest." II. JEHOVAH ’ S WITNESSES 16. Numbering about four million worldwide not counting uninitiated sympathisers, the Jehovah ’ s Witnesses form a particular religious movement. It originated in America in the 1870s. Formerly known by names such as International Bible Students, the Jehovah ’ s Witnesses took their present name in 1931. 17. A central feature of Jehovah ’ s Witness doctrine is the belief that the Holy Scriptures in the original Hebrew and Greek are the revealed word of Jehovah God and must therefore be taken as literal truth. The refusal to accept blood transfusions is based on several scriptural references, most notably Acts 15: 28 -29, which reads ( New World translation): "For the holy spirit and we ourselves have favored adding no further burden to you, except these necessary things, to keep abstaining from things sacrificed to idols and from blood and from things strangled and from fornication. If you carefully keep yourselves from these things, you will prosper ..." | This case concerned the withdrawal of parental rights from the applicant after she divorced the father of their two children, because she was a Jehovah’s Witness. |
706 | Dissolution or prohibition of political parties or associations | I. THE CIRCUMSTANCES OF THE CASE A. The refusal of the application to register the PCN 9. The first applicant is a political group which was refused registration as a political party in a judgment delivered by the Bucharest Court of Appeal on 28 August 1996. The second applicant is its chairman. 10. On 23 March 1996 the PCN was founded at a national conference chaired by the second applicant, at which its constitution and political programme were adopted. The relevant parts of the constitution read as follows: “The PCN shall respect national sovereignty, the territorial integrity of the State, its legal order and the principles of democracy. None of its members shall defame the country and the nation, promote war and national, racial, class or religious hatred, encourage discrimination, territorial separatism or public violence, or engage in obscene and immoral activities. The PCN is a free association of citizens who support political pluralism, uphold the principles of a democratic law-based State and strive to defend their own interests without denying those of others. Aims Article 1 : The PCN shall express, represent and defend the political interests of the workers, without any distinction based on ethnic origin, sex, age, profession, belief or opinions.'Workers'means all those who earn their living by working, regardless of activity ... With a view to ensuring a constant increase in workers'living standards, the PCN shall act within the law, using any means lawfully available to all political parties, to gain political power in order to establish a humane and democratic society. ... Article 20 : The PCN is not the successor of the former Romanian Communist Party, with which it has no connection; it represents the continuation of the resistance against the Communist Party prior to 1989. Being founded by and composed of persons who were not members of the former Communist Party, the PCN emphasises that none of the qualities with which the former Communist Party was credited, or the criticisms that party aroused, should be attributed to it.” 11. In its political programme, adopted on 23 March 1996, the PCN stated that its aims were to defend workers'interests and to adhere to the essence of communist doctrine, based on the following fundamental principles: non-exploitation of certain persons by others or by the State; social justice based on labour and proper qualitative competition; and genuine democracy capable of securing the rights of the majority through free elections in which all political tendencies should be allowed to take part. It deplored what it called the antisocial and anti-working - class direction in which Romanian society had moved since the overthrow of the previous regime in 1989, and the country's transformation into a “colony of the European and global neo-colonialist empires”. The programme also contained the following political ideas : “The thesis underlying all policy and all doctrine is that the main advantage in politics is number. Those who are greatest in number are always right, irrespective of the way they think or act, and this is constantly being borne out, as, for example, on 22 December 1989 when the anti-working - class, antisocial and antinational counter-revolution emerged victorious in several European countries. The starting-point of all workers'action has been the desire to change what is evil; in practice, only what is good has changed, and almost completely. What do we mean by good? ... During its years of socio-economic practice in the territory of former Dacia [ [1] ], socialism achieved goals for the masses – despite the errors, excesses, failings and abuses on the part of the former Communist Party bourgeoisie – which workers cannot abandon or forget: the highest material and spiritual living standards in history; the highest level of culture and civilisation in history ...; the broadest and most extensive democratic legal framework ... The PCN is a workers'revolutionary political group that acts in an organised, conscious manner within the constitutional framework to eradicate the effects of the counter-revolution and to resume building the most humane and democratic society ever known – socialism. Regardless of its position in relation to the other political forces, [that is, whether it is] involved in the exercise of power and the administration of the State, the PCN will strive to attain such goals as may ensure the protection of the interests of the masses.” 12. On 4 April 1996 the second applicant, as the PCN's representative, applied to the Bucharest County Court to enter it in the special register for political parties. 13. By a decision of 19 April 1996, the court refused the application as being ill-founded. The relevant passages of the reasoning of the decision read as follows: “In support of the application to register the party, a number of documents have been filed: a list of the party leaders, a list of its founder members, the constitution governing its organisation and functioning, its political programme, the lease for its headquarters, evidence of its financial resources and its constitutive instrument, namely the minutes of the national conference held on 23 March 1996. It appears from an examination of the documents in the file that the party's constitution, in the chapter setting out its aims, ... states that it strives to gain political power in order to establish a humane and democratic society. It therefore follows from its constitution and political programme that the party pursues the aim of establishing a humane State based on communist doctrine, which would imply that the constitutional and legal order in place since 1989 is inhumane and not founded on genuine democracy. The party is therefore in breach of Article 2 §§ 3 and 4 of Legislative Decree no. 8/1989, which provides that'the aims of political parties must be based on respect for sovereignty, and that the means employed to achieve them must be in accordance with Romania's constitutional and legal order'. ” 14. On 6 July 1994 the applicant appealed against that decision to the Bucharest Court of Appeal. In a judgment delivered on 28 August 1996, the Court of Appeal dismissed the appeal on the ground that the assessment made in the decision had been correct. It finalised the text of the judgment on 21 October 1996 and sent it to the Bucharest County Court to be archived. The second applicant states that he learned of the reasons for the judgment on 13 November 1996. The relevant paragraph of the reasoning reads as follows: “As to the final ground of appeal, concerning the merits of the case, the first-instance court was correct in considering the [PCN's] constitution to be in breach of Legislative Decree no. 8/1989 with regard to the country's constitutional and legal order. Accordingly, the Court dismisses the complaint as being ill-founded.” 15. On 28 May 1997 the Procurator-General of Romania informed the second applicant that he could see no reason to lodge an application ( recurs în anulare ) to have the judgment of 28 August 1996 quashed. 16. The second applicant lodged an application to set aside ( contestaţie în anulare ), which the Bucharest County Court dismissed as being out of time on 5 December 1997. B. The second applicant's subsequent publications 17. After 1997 the second applicant continued to express his political opinions in the newspaper Pentru socialism (“For Socialism”), of which he was the editor. On 13 August 1998 he published an article entitled “The communist manifesto”, which proclaimed his attachment to communist doctrine and criticised both the direction taken by the Communist Party leaders before 1989 and the policy pursued by successive governments since then. A large number of articles which the second applicant published in the newspaper in 1998 and 1999 contained slogans such as “Workers of all countries, unite!”, “The struggle continues!” and “Long live socialism!”. In one article he stated that, once in power, he would “accept only those who accept[ed him]”. 18. In 2000 the second applicant published a book, The anti-socialist, anti-working - class and antinational counter-revolution, in which he replied to about a hundred questions from a journalist. In December 2003 he sent the Court a copy of the book. In it he set out his political vision, outlining his commitment to communist doctrine and the working classes and describing Marx as the greatest political philosopher of all humanity; he also criticised both the authorities'gradual betrayal, in his view, of communist ideals prior to 1989 – while praising former President Ceausescu – and the policy pursued by those in power after that date. He stated that, unlike the pre-1989 communist regime, he was in favour of free, multi-party elections in which all the political forces could take part, except extremists and fascists, and voiced his support for a form of political competition based on respect for others and their political views. Among other things, he referred to the difficulties encountered since 1989 in finding sufficient members to register the PCN and to the fact that the party was not well known in Romania, particularly among those for whom it was primarily intended, the peasants and workers. 19. Arguing that socialism had in the past been the subject of frequent “attacks” designed to destroy it, examples being the events in 1968 in Prague, 1978 in Poland and 1985 and 1993 in Russia, the second applicant stated in conclusion to his reply to a question from the journalist: “As long as there are still capitalist, imperialist and religious brutes in the world, whose main aim is to enslave others, the conditions for further internal and external activities against socialism will continue to exist, ... [socialism] being a fundamental idea and belief of the people; remember the endless succession of attacks against the forces of good in fairy tales ... These attacks will not cease until the hideous and parasitic farmyard fowls, who commit crimes in all places and at all times, have been destroyed.” 20. He stated in the book that the political system would in time become structured according to social class, that the PCN sought to represent the interests of the peasants and workers, and that a democratic parliament should reflect the country's social structure, with the two classes in question holding the vast majority of seats according to their share of the population. 21. Arguing that capitalism encouraged theft, the second applicant stated in the book that the masses, who despised wealth, would move away from the post-1989 political parties and, over about fifty years, towards the PCN. 22. With regard to property, he stated that it was for the people to decide whether privatisation was beneficial and that “the rich” could enjoy possessions they had obtained by lawful means. As to the restitution of property that had passed into State ownership during the communist regime, the second applicant considered that property confiscated for political reasons should be returned, although entire buildings and factories should not, because the nationalisation measures carried out after 1947-48 had been acts of social justice. | Partidul Comunistilor (Nepeceristi), a party of Communists who had not been members of the Romanian Communist Party, “the PCN”, had been founded in March 1996. Its registration as a party was refused by the Romanian courts in a decision upheld in August 1996 on the grounds that the PCN was seeking to gain political power in order to establish a “humane State” founded on communist doctrine, meaning that it considered the constitutional and legal order that had been in place since 1989 as inhumane and not based on genuine democracy. |
934 | Concurrent judicial functions in the same case | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant, born in 1930, is a businessman living in Pfäffikon ( Switzerland ). A. Background 9. The applicant is the owner of two properties, of 115 sq. m. and 51 sq. m. respectively, in the municipality of Kloten. Half of the second property is tied up with a joint ownership of part of a path. In the 1950s an area zoning plan was prepared, although no general settlement regarding the applicant's properties was achieved. The applicant also unsuccessfully requested the Kloten municipality on a number of occasions to take over the two properties and to compensate him accordingly. 10. The applicant was also involved in other building proceedings in the Kloten municipality in which the opposing party, a cantonal insurance pension office, was represented by a lawyer, Mr W. 11. The applicant was furthermore involved in building proceedings against the Küsnacht municipality in which that municipality was represented by a lawyer, Mrs R. These proceedings were conducted before the Administrative Court of the Canton of Zürich and in last resort before the Federal Court, its decision having been given on 24 October 1995. 12. Mrs R. and Mr W. are practising lawyers ( Rechtsanwälte ) who at that time shared office premises in Zürich together with Mr L. Lawyers R. and L. also acted as part-time administrative court judges at the Administrative Court of the Canton of Zürich. B. Proceedings instituted by the applicant 13. In the proceedings concerning the applicant's properties in Kloten (see paragraph 9 above), the applicant filed on 15 February 1995 an action with the Administrative Court of the Canton of Zürich, requesting an order that the Kloten municipality take over the two properties, including the joint ownership, for the sum of 368,200 Swiss francs. 14. In the applicant's case, the bench of the Administrative Court was then composed of five judges, namely the Vice-President, three administrative court judges and one substitute judge. Among the administrative court judges were R. and L., who were part-time judges. 15. On 15 December 1995 the court rejected the applicant's action. The Court found that it was not competent to deal with the matter which appertained to the jurisdiction of the Assessment Commission ( Schätzungskommission ). However, the court declined to transmit the case to the Assessment Commission as the applicant had forfeited his right to claim compensation. Thus, if he had disagreed with the area zoning plan, in particular with the settlement of accounts of 1957, he should have requested the institution of assessment proceedings at the relevant time. The Court found that the claim for compensation would in any event be unfounded as it had to be directed against other proprietors in the area covered by the zoning plan, rather than the municipality. 16. The applicant filed a public-law appeal with the Federal Court in which he complained, on the one hand, about the outcome of the proceedings, on the other, that judge R. had shortly before acted in separate appeal proceedings, instituted by the applicant, as the legal representative of the opposing party, namely the Küsnacht municipality. Moreover, judge R. shared office premises with judge L., and also with W. who, in separate proceedings instituted by the applicant, had represented the opposing party. 17. The public-law appeal was dismissed by the Federal Court on 29 April 1996, the decision being served on 9 May 1996. In its decision, the court dealt with the applicant's complaint that certain judges of the Administrative Court had not been impartial as follows: “The interrelations mentioned may raise certain doubts in view of Article 58 § 1 of the Federal Constitution which requires the impartiality of judges. However, the applicant does not claim that R. or another member of the Administrative Court was in fact biased when giving the contested decision. The Federal Court has already previously held that the fact that legal representatives in the Canton of Zürich also acted as part-time administrative court judges could under certain circumstances result in an interrelation of interests. The Court found, however, that it could be expected from a part-time judge that he could distinguish between his official function and his private professional activities. A part-time judge was not, therefore, obliged to stand down merely because he had represented legal interests in other proceedings which were opposed to those of the applicant ... In view of these principles it can equally not be assumed in the present case that the Administrative Court was composed of judges who could be regarded as biased when giving the contested decision.” 18. The Federal Court furthermore did not consider it arbitrary that the Administrative Court had found that the applicant's claims were forfeited as he had failed duly to raise them. 19. On 20 August 1996 the Federal Court dismissed the applicant's request to reopen the proceedings. | The applicant complained of the lack of impartiality of two judges (lawyers acting as part-time judges) in administrative proceedings to which he was a party. The judges had acted either directly as lawyers, or through their office partner, against the applicant in separate proceedings. |
303 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1976 and 1986 respectively and live in Budapest. 7. When introducing the application, the applicants were staff members of Eötvös Károly Közpolitikai Intézet, a non-governmental, “watchdog” organisation voicing criticism of the Government. The subsequent employer of one of the applicants was subjected to financial control measures by the Government in 2014, which according to the applicants verged on vexation. 8. Act no. CXLVII of 2010 defines combating terrorism as one of the tasks of the police. Within the force, a specific Anti-Terrorism Task Force (“ TEK ”) was established as of 1 January 2011. Its competence is defined in section 7/E of Act no. XXXIV of 1994 on the Police, as amended by Act no. CCVII of 2011 (the “Police Act”). 9. Under this legislation, TEK ’ s prerogatives in the field of secret intelligence gathering include secret house search and surveillance with recording, opening of letters and parcels, as well as checking and recording the contents of electronic or computerised communications, all this without the consent of the persons concerned. 10. The authorisation process for these activities is dependent on the actual competence exercised by TEK, namely whether it is within the framework of secret surveillance linked to the investigation of certain specific crimes enumerated in the law (section 7/E (2)) or to secret surveillance within the framework of intelligence gathering for national security (section 7/E (3)). 11. Whereas the scenario under section 7/E (2) is as such subject to judicial authorisation, the one under section 7/E (3) is authorised by the Minister in charge of justice, (i) in order to prevent terrorist acts or in the interests of Hungary ’ s national security or (ii) in order to rescue Hungarian citizens from capture abroad in war zones or in the context of terrorist acts. 12. “Section 7/E (3) surveillance” takes place under the rules of the National Security Act under the condition that the necessary intelligence cannot be obtained in any other way. Otherwise, the law does not contain any particular rules on the circumstances in which this measure can be ordered, as opposed to “section 7/E (2) surveillance”, which is conditional on the suspicion of certain serious crimes. The time-frame of “section 7/E (3) surveillance” is 90 days, which can be prolonged for another 90-day period by the Minister; however, the latter has no right to know about the results of the ongoing surveillance when called on to decide on its prolongation. Once the surveillance is terminated, the law imposes no specific obligation on the authorities to destroy any irrelevant intelligence obtained. 13. The applicants filed a constitutional complaint on 15 June 2012, arguing in essence that the sweeping prerogatives under section 7/E (3) infringed their constitutional right to privacy. They emphasised that the legislation on secret surveillance measures for national security purposes provided fewer safeguards for the protection of the right to privacy than the provision on secret surveillance linked to the investigation of particular crimes. They pointed out that (i) “section 7/E (2) surveillance” was always linked to a particular crime and could only be ordered for the purposes of identifying or locating suspects, whereas “section 7/E (3) surveillance” was not linked to any particular crime; (ii) “section 7/E (2) surveillance” was always ordered by the court, whereas “section 7/E (3) surveillance” was authorised by the government minister in charge of justice; (iii) the decision on ordering “section 7/E (2) surveillance” was subject to detailed reasoning, whereas no reasoning was included in the minister ’ s decision on ordering “section 7/E (3) surveillance”; and (iv) under the legislation relating to “section 7/E (2) surveillance”, all collected but irrelevant information had to be destroyed within eight days, unlike in the case of “section 7/E (3) surveillance”. 14. On 18 November 2013 the Constitutional Court dismissed the majority of the applicants ’ complaints. In one aspect the Constitutional Court agreed with the applicants, namely, it held that the decision of the minister ordering secret intelligence gathering had to be supported by reasons. However, the Constitutional Court held in essence that the scope of national security-related tasks was much broader that the scope of the tasks related to the investigation of particular crimes. For the purpose of national security, the events of real life were examined not for their criminal law relevance; therefore they might not necessarily be linked to a particular crime. Furthermore, in the context of national security, the external control of any surveillance authorised by the minister was exercised by Parliament ’ s National Security Committee (which had the right to call the minister to give account both in general terms and in concrete cases) and by the Ombudsman, and that this scheme was sufficient to guarantee respect for the constitutional right to privacy of those concerned. Finally, the Constitutional Court was of the opinion that the National Security Act, which applies to “section 7/E (3) surveillance”, contained general provisions on ex officio deletion of any data unnecessary for achieving the aim underlying the gathering of intelligence. 15. This decision was published in the Official Gazette on 22 November 2013. VII. Internal and Governmental Controls as part of overall accountability systems 130. Internal control of security services is the primary guarantee against abuses of power, when the staff working in the agencies are committed to the democratic values of the State and to respecting human rights. External controls are essentially to buttress the internal controls and periodically ensure these are working properly. 131. Internal controls mean in the first place that the senior management of the agency must exercise efficient control in practice over the lower ranks of the agency. 134. Just as strong internal controls are a precondition for effective executive control over the security agency, a strong executive control over the security agency is a precondition for adequate parliamentary accountability, given that access by parliament to intelligence usually depends on the executive. The same is less true for expert review/authorization systems, to the extent that these have their own access to officials and intelligence material ... 137. In order to provide for impartial verification and assurance for the government that secret agencies are acting according to its policies, effectively and with propriety, a number of countries have devised offices such as Inspectors-General, judicial commissioners or auditors to check on the activities of the security sector and with statutory powers of access to information and staff. VIII. Parliamentary accountability 150. There are several reasons why parliamentarians should be involved in the oversight of security agencies. Firstly, the ultimate authority and legitimacy of security agencies is derived from legislative approval of their powers, operations and expenditure. Secondly, there is a risk that the agencies may serve narrow political or sectional interests, rather than the State as a whole and protecting the constitutional order, if democratic scrutiny does not extend to them. A stable, politically bi-partisan approach to security may be ensured therefore by proper control, to the benefit of the State and the agencies themselves. 153. From a comparative international perspective, the most frequent arrangement is for parliament to establish a single oversight body for all the major security and intelligence agencies, rather than having multiple oversight bodies for specific agencies. IX. Judicial Review and Authorization 195. Judicial control over internal security services can take different forms. First, there is prior authorization in a pre-trial phase, and/or post hoc review, of special investigative measures, such as telephone tapping, bugging and video surveillance. This is the normal practice in European States. 204. Nonetheless, there is an obvious advantage of requiring prior judicial authorization for special investigative techniques, namely that the security agency has to go “outside of itself” and convince an independent person of the need for a particular measure. It subordinates security concerns to the law, and as such it serves to institutionalize respect for the law. If it works properly, judicial authorization will have a preventive effect, deterring unmeritorious applications and/or cutting down the duration of a special investigative measure. The Parliamentary Assembly has earlier expressed a clear preference for prior judicial authorization of special investigative measures (depending on the type of measures). X. Accountability to expert bodies 218. Expert bodies can serve as either a supplement or a replacement for parliamentary bodies or judicial accountability... 219. An expert body allows for greater expertise and time in the oversight of security and intelligence services and avoids the risks of political division and grand ‑ standing to which parliamentary committees can be prone. The body may be full or part time, but even if it is part time, the supervision exerted is likely to be more continuous than that exercised by a parliamentary body, the members of which have many other political interests and responsibilities. The members ’ tenure can be made longer than the standard electoral period, something which is particularly important as intelligence has, as already mentioned ..., a relatively long “learning curve”. 220. Like parliamentary oversight, the mandate of an expert body can be institutional, meaning that it can be established to exercise supervision only over a specific internal security body (this is in contrast to functional review discussed below) ... 222. It is, however, important that the scope of the review is drawn carefully, to avoid disputes as to whether a particular activity falls within the body ’ s mandate and to avoid overlaps with other accountability mechanisms, in particular judicial controls over police powers and Ministerial accountability to parliament. XI. Complaints mechanisms 241. Clearly it is necessary for individuals who claim to have been adversely affected by the exceptional powers of security and intelligence agencies, such as surveillance or security clearance, to have some avenue for redress. Quite apart from strengthening accountability, complaints may also help to lead to improved performance by the agencies through highlighting administrative failings. The requirements of human rights treaties, and especially the European Convention on Human Rights, with its protections of fair trial, respect for private life and the requirement of an effective remedy must obviously also be borne in mind. 242. Plainly, though, legitimate targets of a security or intelligence agency should not be able to use a complaints system to find out about the agency ’ s work. A complaints system should balance, on the one hand, independence, robustness and fairness, and, on the other hand, sensitivity to security needs. Designing such a system is difficult but not impossible. 243. Individuals who allege wrongdoing by the State in other fields routinely have a right of action for damages before the courts. The effectiveness of this right depends, however, on the knowledge of the individual of the alleged wrongful act, and proof to the satisfaction of the courts. As already mentioned, for a variety of reasons, the capacity of the ordinary courts to serve as an adequate remedy in security fields is limited. The case law of the European Court of Human Rights ... makes it very clear that a remedy must not simply be on paper. 244. An alternative is to allow an investigation and report into a complaint against an agency by an independent official, such as an ombudsman.... 245. In these ombudsman-type systems, the emphasis is on an independent official investigating on behalf of the complainant. These independent offices usually exist to deal with an administrative failure by public bodies, rather than a legal error. Their investigations may give less emphasis to the complainant ’ s own participation in the process and to transparency than would be the case with legal proceedings. Typically an investigation of this type will conclude not with a judgment and formal remedies, but with a report, and (if the complaint is upheld) a recommendation for putting matters right and future action... 246. A less common variation is for a State to use a parliamentary or expert oversight body to deal with complaints and grievances of individuals.... There may be a benefit for a parliamentary oversight body in handling complaints brought against security and intelligence agencies since this will give an insight into potential failures – of policy, legality and efficiency. On the other hand, if the oversight body is too closely identified with the agencies it oversees or operates within the ring of secrecy, the complainant may feel that the complaints process is insufficiently independent. In cases where a single body handles complaints and oversight it is best if there are quite distinct legal procedures for these different roles. 247. On the whole it is preferable that the two functions be given to different bodies but that processes are in place so that the oversight body is made aware of the broader implications of individual complaints. This approach is also supported by the ECHR. The requirement in ECHR Article 13 of a mechanism for remedies for alleging violations of Convention rights which is independent from the authorization process means that a State ’ s control system, e.g. for data processing, may pass the test of “accordance with the law” and “necessity in a democratic society” but that the absence of a remedy means that there is nonetheless a violation of the Convention. As already mentioned, the ECtHR has stated that a remedy must be effective in law and fact. It should be noted in particular that the ECtHR has ruled that a data inspection authority which is independent, and which has formal competence in law to award a remedy for the holding of inaccurate, inappropriate etc. security data, but which in fact lacks the expertise to evaluate this data, is not an effective remedy within the meaning of Article 13. 249. In some countries, not only individuals but also members of the services are permitted to bring service-related issues to the attention of an ombudsman or parliamentary oversight body... 250. Another method of handling complaints is through a specialist tribunal.” | This case concerned Hungarian legislation on secret anti-terrorist surveillance introduced in 2011. The applicants complained in particular that they could potentially be subjected to unjustified and disproportionately intrusive measures within the Hungarian legal framework on secret surveillance for national security purposes (namely, “section 7/E (3) surveillance”). They notably alleged that this legal framework was prone to abuse, notably for want of judicial control. |
193 | Domestic violence | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1968 and lives in Colognola ai Colli, in the province of Verona. 7. The facts of the case, as submitted by the parties, can be summarised as follows. A. Background to the case 8. The applicant ’ s relationship with J.C.N., a Kenyan national, began in 2003. They had two children, P. and A., who were born in August 2006 and March 2008 respectively. 9. The applicant submitted that her relationship with J.C.N. deteriorated rapidly. In 2008 they undertook relationship therapy, which was interrupted because J.C.N. was suffering from depression. He also took no interest in the business he had set up with the applicant in 2006. 10. According to the domestic court ’ s judgments, on 16 November 2008 J.C.N. hit the applicant several times and threatened her with a knife and a pair of scissors during a violent argument concerning the relationship that she had begun with a common friend. J.C.N. locked the applicant in the flat and took the keys in order to prevent her from leaving. Their children were asleep in the flat and one of them, awakened by the screaming, witnessed part of the aggression. 11. The carabinieri, called by the neighbours, intervened at the couple ’ s home. The applicant was taken to hospital in a state of shock. She was diagnosed with, inter alia, concussion, injuries to the head and several bruises all over her body. B. Criminal proceedings against the applicant ’ s former partner 12. J.C.N. was arrested and detained. He was charged with attempted murder, kidnapping, aggravated violence and threatening behaviour. He subsequently asked the authorities in charge of the preliminary investigation to adopt the summary procedure ( giudizio abbreviato ) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”). 13. On 2 April 2009 J.C.N. was found guilty and sentenced to four years and eight months ’ detention. 14. The applicant did not join the criminal proceedings as a civil party. 15. On 11 December 2009 the Verona Court of Appeal reduced the sentence to three years and four months ’ detention. 16. By a decision issued on 7 October 2010 the Court of Cassation dismissed an appeal lodged by J.C.N. C. Execution of the sentence 17. On 6 October 2009 J.C.N. applied to the Venice Court of Appeal seeking to serve the remainder of his sentence under house arrest at a reception centre located in the municipality where the applicant was living (Colognola ai Colli). 18. On 3 November 2009 the Venice Court of Appeal dismissed J.C.N. ’ s application, referring, inter alia, to the proximity of the facility indicated (2 km) to the applicant ’ s home, the psychological condition of J.C.N. and the risk that he might try to contact the applicant. 19. On 1 June 2010 J.C.N. lodged another application for house arrest, indicating a reception centre (“Don Nicola”) located in Soave, a different municipality of the province of Verona, about 15 km from the applicant ’ s home. The centre was managed by a non - profit -making organisation called Sulle Orme. 20. The Venice Court of Appeal ordered an inspection of the facility indicated by J.C.N. in order to assess its suitability to host him. The inspection was carried out by the carabinieri, who highlighted that the facility in question had already hosted persons whose prison sentence had been replaced by house arrest, without any complications having arisen. They further stressed that they carried out regular surveillance of the persons hosted by the centre. They consequently concluded that the facility was suitable to host the applicant ’ s former partner. 21. On 18 June 2010 the Venice Court of Appeal granted J.C.N. ’ s request. 22. On 24 September 2010 the Venice Court of Appeal granted J.C.N. permission to work outside the reception centre during the grape - harvest season. 23. On 2 August 2011 J.C.N. finished serving his sentence and was released. He decided to continue residing at the reception centre. D. Proceedings before the Venice Juvenile Court 24. On 24 April 2009 the applicant lodged an application with the Venice Juvenile Court seeking sole custody of her children and the forfeiture of her former partner ’ s parental rights. 25. On 15 May 2009 the applicant was granted sole custody of her children. In February 2010, after having heard both the applicant and her former partner, the Venice Juvenile Court ordered the forfeiture of J.C.N. ’ s parental rights and prohibited any form of contact between him and the children. The court stressed that J.C.N. could apply for the restoration of his parental rights once he had served his sentence and followed a path aimed at acquiring the parental skills he had been shown to be lacking. 26. In January 2012 J.C.N. applied to the Venice Juvenile Court seeking the restoration of his parental rights and the suspension of his financial obligation towards his children. No information was submitted to the Court about the outcome of the application. E. Situation of the applicant following the assault 27. The applicant claimed that following the violence suffered at the hands of her former partner, she lived in a state of constant anguish and fear of a recurrence of the violence against her and her children. She underwent psychological support therapy, as did her son P., who had witnessed the violence. 28. On an unspecified date the applicant turned for help to an association ( Associazione scaligera vittime di reato – ASAV ) that specialised in providing material, psychological and legal assistance to victims of crime. 29. The applicant visited her former partner five times during his imprisonment, which lasted from 18 November 2008 to 18 June 2010. 30. From the material submitted by the applicant, it appears that after J.C.N. was released he and the applicant resumed contact in the form of an exchange of emails. | The applicant complained that the authorities had failed to support her following the serious incident of domestic violence against her or to protect her from further violence. She also alleged that these failings had been the result of the inadequacy of the legislative framework in Italy in the field of the fight against domestic violence, and that this discriminated against her as a woman. |
1,048 | Professional services (lawyers, doctors, etc.) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1963 and lives in Linz. 6. The applicant is a practising lawyer. In July 2005 the applicant was informed by the Linz District Court that it planned to appoint him as legal guardian ( Sachwalter ) for K, who was suffering from a mental illness, and asked him to comment on the proposal. According to the document supplied by the court, there were no known relatives of K who could become guardians, and the association of guardians ( Verein für Sachwalterschaft ) had informed the court that it lacked the capacity to take over guardianship. 7. The applicant submitted comments, stating that his wife objected to the proposal, since K might call the applicant at weekends and disturb their family life. His professional and spare-time activities would also not allow him to take on another duty. He added that he was not trained to deal with persons with a mental illness such as K and was not interested in acquiring the necessary training either. Furthermore, he argued that his professional insurance would not cover the risks associated with being a legal guardian; therefore, he would have to enter into a separate insurance agreement. The costs would have to be borne by K, who – according to the court file which the applicant had received – did not appear to have the money to cover them. 8. By a decision of the Linz District Court of 15 September 2005 the applicant was appointed as legal guardian for K in matters of management of income and representation before the courts and other authorities. The court found that no other person, such as a relative, was suitable to be K’s legal guardian. The association of guardians did not have the capacity to appoint a legal guardian for K. The applicant was the next person on the list of possible legal guardians. This list, which is kept by the Linz District Court, contains the names of all lawyers and public notaries in the district. The court also found that the reasons submitted by the applicant were not sufficient to justify his refusal; it held that neither having two children, nor leading a church choir, nor being member of a supervisory board constituted a valid reason as to why he should be declared unsuitable for the task. The court also held that the duty for lawyers to act as legal guardians did not constitute forced labour, as helping weaker members of society was a civic duty and for practising lawyers, rendering help in legal matters was part of their core professional duties and was comparable to a normal civic obligation within the meaning of Article 4 § 2 of the Convention. 9. The applicant appealed against the decision to the Linz Regional Court, arguing that if the duty were to constitute a normal civic obligation, it was discriminatory to put only lawyers and public notaries on the list, as other persons also had knowledge of law, such as judges, public servants who had studied law or lawyers working in companies. He also alleged that the tasks he had been ordered to perform did not require special legal knowledge as any adult person could manage their income; he further claimed that no court proceedings in which K was a party were pending, and thus it was not necessary to appoint a practising lawyer as his guardian. 10. On 15 December 2005 the Linz Regional Court upheld the decision of the Linz District Court, holding that there was at least one trial involving K pending, and that any other tasks the applicant would have to perform in the present case were limited and did not place an excessive burden on him. 11. The applicant lodged an extraordinary appeal on points of law to the Supreme Court, alleging a violation of Article 14 in conjunction with Article 4 of the Convention, as only lawyers and their associates ( Rechtsanwaltsanwärter ) and public notaries and their associates ( Notariatskandidaten ), but no other persons who had studied law, were placed on the list of possible guardians. He also complained that lawyers were in principle entitled to remuneration for their services, but this applied only in so far as this would not endanger the fulfilment of the basic needs of the person placed under guardianship. By a decision of 7 March 2006 the Supreme Court refused to deal with the matter, finding that it did not raise an important question of law. | This case concerned the obligation for a lawyer (or a public notary, but not other categories of persons with legal training) in Austria to act as unpaid guardian to a mentally ill person. A practising lawyer, the applicant was informed that the Austrian courts planned to appoint him as legal guardian to a mentally ill person. According to the courts, neither the association of guardians nor any known relative could take over guardianship of this person. |
905 | Monitoring of telephone and internet use | 2. The applicant was born in 1968 and lives in the village of Pilviškiai, in the Vilkaviškis region. He was represented by Mr A. Kručkauskas, a lawyer practising in Vilnius. 3. The Government were represented by their Agent, Ms K. Bubnytė-Širmenė. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background to the case 5. The applicant was the director of Kybartai prison. 6. On 22 June 2015 the Internal Affairs Division at the Department of Prisons ( Kalėjimų departamento Imuniteto skyrius ) opened a criminal intelligence investigation in respect of the applicant, on suspicion of abuse of office (Article 228 § 1 of the Criminal Code). 7. On 26 June 2015 a prosecutor of the Prosecutor General’s Office, acting on the basis of the criminal intelligence information received that month from the Department of Prisons, asked the Vilnius Regional Court to authorise the interception of the applicant’s electronic communications. The prosecutor based the request on the above-mentioned information which showed that the applicant might have abused his office: it was suspected that he had provided, for pay, better conditions for inmates while they were serving their sentences, and that he had also awarded them incentives ( paskatinimus ). The prosecutor noted that, before asking for authorisation for the interception, other investigative measures had been taken, but that, given in addition the specific features of applicant’s post, they had been insufficient to investigate possible criminal activity. In support of his request, the prosecutor referred to two reports by the Department of Prisons, both of 22 June 2015. 8. By ruling of 30 June 2015 the Vilnius Regional Court granted the prosecutor’s request on the basis of the Law on Criminal Intelligence (see paragraph 47 below) and allowed, for an initial period of three months, the interception of the applicant’s telephone and other communications, in order to investigate his possible abuse of office. The court noted that the material in the file – criminal intelligence reports – confirmed the applicant’s possible involvement in criminal activity of medium severity, and that other criminal intelligence measures had already been used, which justified authorising the interception. The authorisation was extended by further orders of the Vilnius Regional Court of 29 September and 22 December 2015, and 29 March 2016. Each time the court based the extension on specific information provided to it – transcripts of concrete and numerous newly intercepted telephone conversations of the applicant, where, among other elements, payment for the applicant’s specific actions was mentioned. Those transcripts had been produced by the Department of Prisons in its motions to the prosecutor, who, in turn, referred to that information when asking the court that the authorisation for interception be extended. 9. Between June 2015 and June 2016 the Internal Affairs Division of the Department of Prisons placed covert listening devices in the applicant’s office in the prison. During that period, his telephone communications were monitored and intercepted. 10. On 23 June 2016 the criminal intelligence investigation was discontinued for lack of incriminating evidence to charge the applicant under Article 228 § 1 of the Criminal Code. That notwithstanding, the prosecutor permitted the use of the collected information in disciplinary proceedings, which ultimately led to the applicant’s dismissal (see paragraphs 25-45 below). 11. In the meantime, the applicant sought to obtain the information gathered against him during the secret surveillance. He also contested the lawfulness of the relevant measure. The proceedings regarding access to information in the criminal intelligence file and regarding the lawfulness of the criminal intelligence measuresAs to access to information As to access to information As to access to information 12. By a ruling of 16 March 2017, the Vilnius Regional Court, in a public hearing in which the applicant’s lawyer and a representative from the Ministry of Justice (which oversees the Department of Prisons) took part, granted the applicant’s request and ordered the Department of Prisons to provide the applicant with the information about him that had been gathered during the criminal intelligence investigation. The court observed that information could be disclosed only inasmuch as the law allowed, and in compliance with restrictions set out in Article 19 § 7 of the Law on Criminal Intelligence (see paragraph 47 below). 13. In compliance with that court decision, on 27 March 2017 the Department of Prisons provided the applicant with two declassified reports ( pažymos ) from the criminal investigation file. The Department noted that it had received a prosecutor’s permission to use that information for investigation of the applicant’s disciplinary offences (see paragraph 25 below). The first report consisted of eleven pages and included analysis of the applicant’s actions in organising the prison’s internal competitions, entering into mobile telephone contracts and using the prison car for personal purposes, as well as other offences. The second report contained fifty-four pages of transcripts of the applicant’s intercepted telephone conversations. The Department of Prisons noted that other information, such as that linked to measures, methods or tactics of criminal intelligence, and individuals who had performed those actions, could not be revealed, under Article 19 § 7 of the Law on Criminal Intelligence (see paragraph 47 below). 14. On the basis of its earlier ruling (see paragraph 12 above), on 29 November 2017 the Vilnius Regional Court issued a writ of execution, ordering the Department of Prisons to “disclose” to the applicant the information gathered about him during the criminal intelligence investigation. 15. By a letter of 21 December 2017, the Department of Prisons informed the applicant that it had “repeatedly” sent him and his lawyer two reports (see paragraph 13 above), the Vilnius Regional Court’s rulings authorising the interception of the applicant’s telephone communications (see paragraph 8 above), and certain other documents regarding the declassification of those materials, in total eighty-four pages of documents. The Department wrote that, following the court order for disclosure, it was providing the applicant with “all” the criminal intelligence investigation information gathered about him, except for the information which could not be disclosed pursuant to Article 19 § 7 of the Law on Criminal Intelligence, which point had been emphasised by the Vilnius Regional Court (see paragraph 12 above). 16. According to the Government, in January 2018 the applicant requested, through a bailiff, that the Department of Prisons be ordered to provide certain other documents, such as those relating to a secret entering of the applicant’s office and the placement of covert listening devices, those documents having been mentioned in the documents that had already been made available to the applicant. In February 2018 the Department refused to release that information, referring to Article 19 § 7 of the Law on Criminal Intelligence, on the ground that those documents contained specific information about listening devices, their installation and dismantlement, and information about the identities of secret participants in the criminal intelligence investigation. The Department also informed the bailiff about that refusal. 17. According to the Government, neither the applicant nor his lawyer submitted any further requests to the bailiff regarding the execution of the Vilnius Regional Court’s ruling of 16 March 2017, and on 24 April 2018 the bailiff confirmed that the execution of that court decision had been fully completed. Neither the applicant nor his lawyer complained about the bailiff’s actions. The decisions regarding the lawfulness of the criminal intelligence measures applied to the applicant 18. The applicant lodged a complaint regarding the lawfulness of the criminal intelligence investigation, and the alleged breach of his rights and freedoms. On 4 August 2017 that complaint was dismissed by the Prosecutor General’s Office. The prosecutor noted that he had obtained and examined the materials in the criminal investigation file. As noted by the prosecutor, given that some of the documents, or parts of the documents, in that file had been marked as “restricted use”, in the decision he would refer only to information which was either not classified or which had been declassified. The prosecutor thus referred to a number of particular documents of 2015 and 2016, such as requests for the interception of the applicant’s telephone communications, lodged by the Department of Prisons and the Prosecutor General’s Office, and the authorising decisions by the Vilnius Regional Court. The prosecutor observed that, prior to authorising the interception of the applicant’s telephone communications, other methods had been used to try to establish possible criminal acts: information had been collected about the inmates and other persons with whom the applicant maintained contact, and about incentives and other privileges awarded to inmates. On the facts it had been found that, by calling the applicant from unlawfully owned mobile telephones, the inmates would not only solve their own issues, but also act as intermediaries to solve other inmates’ problems. The applicant would meet the inmates’ relatives in his office at Kybartai prison or in secret locations in town. Although the applicant contended that the criminal intelligence investigation had been opened in connection with his unlawful actions in organising internal competitions, in reality it had been commenced on the basis of information about the applicant awarding incentives to inmates in exchange for remuneration. 19. In the light of the above, the prosecutor held that the criminal intelligence investigation had been opened and performed reasonably and lawfully. Its duration had been determined by the need to verify and assess the information collected. The prosecutor also considered that the information gathered during the criminal intelligence investigation had been (lawfully) used to examine the applicant’s disciplinary offences or misconduct in office, in compliance with the requirements of the Law on Criminal Intelligence. 20. By a ruling of 4 September 2017 ordering the Department of Prisons to provide it with the criminal intelligence materials, and, afterwards, by a ruling of 25 September 2017, adopted in written proceedings, notwithstanding the applicant’s request that a hearing be held, the Vilnius Regional Court dismissed an appeal by the applicant against the prosecutor’s decision. The court pointed out that, under Article 5 § 9 of the Law on Criminal Intelligence, a person had a right to challenge criminal intelligence measures, should he or she consider that those measures had breached his or her rights (see paragraph 47 below). Such complaints were amenable to appeal at two stages – an appeal could be made to the prosecutor and then to the court. The court also observed that the applicant had not explained which particular freedoms or rights had been breached by the criminal intelligence measures. Even so, it appeared from the applicant’s arguments that the complaint was linked to his dismissal from work. For the court, in the proceedings at hand it had jurisdiction to examine only questions relating to the duration of the criminal intelligence measures and their proportionality. Any arguments regarding whether information obtained by employing criminal intelligence measures could be used when examining disciplinary offences should be examined in different court proceedings regarding that disciplinary offence. 21. On the merits, the Vilnius Regional Court specified that on 20 May 2015 the Department of Prisons had received information about the applicant providing better living conditions for inmates in exchange for payment, and also awarding them incentives. That information had contained elements of the crime of abuse of office. It had included details of one particular inmate who had been given better conditions and incentives; that information had already been known about before the opening of the criminal intelligence investigation. Once the investigation had been opened, but before the authorisation of the interception of the applicant’s telephone communications, information about disciplinary penalties and incentives in respect of the inmates had been received, and that information supported the suspicions against the applicant. A criminal intelligence measure – the interception of the applicant’s electronic communications – had then been authorised by the court. That authorisation had been extended several times by the court, the interception lasting for twelve months altogether, that being the maximum term allowed under the Law on Criminal Intelligence. Accordingly, neither the time-limit for the above-mentioned measure, nor the rules for its authorisation – by a court decision – had been breached. The court noted that “it had acquainted itself with the criminal intelligence investigation file”. The criminal intelligence investigation had been intensive, information had not only been gathered by intercepting the applicant’s telephone communications, and the new information obtained was being verified in various ways, and would prove to be true. The Vilnius Regional Court also specifically noted that during the first three-month period when the technical measures had been applied, “another event” ( kitas įvykis ), having the features of the crime of abuse of office, had been established. That “new event” had been referred to in the prosecutor’s request to the court to extend the interception measure. Similarly, during the first and the second extensions, the Department of Prisons had referred to “new concrete events”, and that information had likewise been relied on by the prosecutor when asking to extend the authorisation of the interception. There had not been a single extension in respect of which there had been no new information received about the applicant’s possible criminal acts (see also paragraph 8 above). It was understandable that at the time when the criminal intelligence investigation started and the interception had been authorised, there had not been much information about the possible unlawful activity; however, with each extension of the interception period, the amount of such information should have become greater, which had been the case. 22. Given the applicant’s place of work and his position – he was the director of a prison – the interception of his electronic communications had been a proportionate measure. Specifically, the State and society had an interest in having inmates following the letter of the law. The information which had prompted the criminal investigation showed that the applicant used to award unwarranted incentives to the inmates, thus portraying them positively, without merit. Those actions by the applicant posed a clear and present danger to society, as those inmates could use the incentives in order to be released from prison early. Furthermore, the applicant’s work in an inaccessible and protected incarceration facility had significantly restricted the means for the criminal intelligence investigation, which made recourse to such technical means as interception of the applicant’s electronic communications reasonable and proportionate. The applicant’s actions had elements of corruption-related criminal acts, and uncovering such crimes was always complicated on account of the perpetrators’ conspiratorial tendencies, their interest in not being detected, and, in this particular case, the applicant’s specific knowledge of criminal intelligence means and methods, and his knowledge of how to counter them. 23. Lastly, the Vilnius Regional Court noted that in his complaint the applicant did not demonstrate any possible connection between the court orders authorising the interception of his electronic communications and a breach of his right to respect for his private life. There had been no breach of the applicant’s right to respect for his private life on account of those court orders. The list of documents provided to the applicant, as specified by the Government 24. As specified by the Government, the applicant was provided with the following documents relating to the criminal intelligence measures. As early as in 2016 he had been provided with the materials gathered when his telephone communications were intercepted, as part of his disciplinary investigation file. At his request, he had again been given those documents in March and December 2017. During the court proceedings regarding the disciplinary penalties, those documents had again been given to him in November 2016 and in January 2017. In addition, in April 2017 the applicant had been provided with all of the procedural documents, such as partly declassified applications by the Prosecutor General’s Office and partly declassified court decisions, which stated the legal and factual grounds for asking for authorisation for the interception of his telephone communications, the scope of the criminal intelligence measures, and their duration. At the applicant’s request, the same documents had again been provided to him in March 2020, during the court proceedings concerning the disciplinary penalties. In addition, in January 2018, at the applicant’s request, the Department of Prisons had provided him with all of its applications for the interception of his telephone communications; the same documents had again been provided to the applicant in March 2020, during the court proceedings concerning the disciplinary penalties. He had also been provided that month with the entirely declassified letter no. SD-141RN of 22 June 2016, whereby the Prosecutor General’s Office had consented to the use of criminal intelligence information in the disciplinary proceedings against the applicant (see paragraph 25 below). Additionally, at the applicant’s request, during the court proceedings concerning the disciplinary penalties, in September 2020 the Department of Prisons and the Prosecutor General’s Office partly declassified and made available to the applicant their applications and the decisions regarding secret entry into the applicant’s office to place and use covert listening devices therein, and regarding surveillance of the applicant. In October 2020 the applicant was also given partly declassified rulings of the Vilnius Regional Court, of November 2015 and March 2016, authorising secret entry into the applicant’s offices, and his surveillance. the applicant’s dismissal ON disciplinary GROUNDS and related COURT proceedingsThe applicant’s dismissal The applicant’s dismissal The applicant’s dismissal 25. On the basis of a request by the Department of Prisons, referring to Article 19 § 3 of the Law on Criminal Intelligence, on 22 June 2016 by decision no. SD-141RN, the Prosecutor General’s Office consented that information gathered during the criminal intelligence investigation could be used when investigating the applicant’s disciplinary offences or misconduct in office. 26. On 10 August 2016 the Department of Prisons provided the Ministry of Justice with the materials gathered during the criminal intelligence investigation for the purpose of the examination of applicant’s disciplinary liability. Those materials have been declassified by the Department of Prisons, the Prosecutor General’s Office and the Vilnius Regional Court (each institution having declassified its own documents). 27. On 26 September 2016, by a decision of the Minister of Justice, the applicant received a disciplinary penalty – a strict reprimand. It was established that in 2015 he had organised competitions for several posts at Kybartai prison and had given unlawful orders to his subordinates so that individuals close to him would win those competitions. Among other things, the applicant had demanded that some other individuals should not take part in those competitions and had set up certain requirements so that a person close to him would qualify. Those actions by the applicant were characterised as unethical, and as constituting a gross disciplinary offence ( šiurkštus tarnybinis nusižengimas ) and abuse of office. 28. Additionally, on 3 November 2016, by a decision of the Minister of Justice, the applicant received another disciplinary penalty – dismissal from service. It was established that in 2014 he had, in his capacity as the director of Kybartai prison, without public procurement signed a contract with a telecommunications company and obtained four mobile telephone numbers which he had then given to individuals close to him for their use. In addition, he had used the prison car for personal purposes, and had given the driver of the prison car unlawful orders. All this constituted a gross breach of numerous legal regulations concerning ethics and the adjustment of private and public interests in public service, and amounted to an abuse of office. 29. The applicant contested both decisions in court. Administrative court proceedings regarding the lawfulness of the use of criminal intelligence information and the lawfulness and proportionality of the applicant’s dismissalThe Vilnius Regional Administrative Court The Vilnius Regional Administrative Court The Vilnius Regional Administrative Court 30. On 3 November 2016 the Vilnius Regional Administrative Court accepted the applicant’s lawsuit for examination. The court ordered the Ministry of Justice to provide a response to the applicant’s lawsuit and to provide “all materials they possessed” on which the Ministry’s findings regarding the applicant’s disciplinary offence had been based. The Ministry of Justice complied, providing the court with a number of documents, such as three criminal intelligence reports from August 2016 by the Department of Prisons (twenty-three, fourteen and nineteen pages), the Department of Prisons report from July 2016 (sixty-five pages), statements of witnesses who had worked at Kybartai prison, and other documents. On 28 November 2016 the Vilnius Regional Court forwarded the Ministry’s reply, as well as the above-mentioned supporting documents to the applicant, for information. 31. The administrative court proceedings were subsequently suspended until 20 December 2018, until another linked complaint by the applicant, regarding a disciplinary penalty – a reprimand received previously for releasing certain prisoners without valid court orders or while the court orders were not yet in force – was over. Those proceedings ended with a final ruling of the Supreme Administrative Court of 14 November 2018, in which the reprimand was upheld. 32. At the applicant’s request, on 9 April 2019 the Vilnius Regional Court again suspended the proceedings until the Constitutional Court had given a ruling in a case which concerned an analogous legal measure (see paragraph 50 below). The administrative court proceedings resumed on 2 May 2019, after the Constitutional Court had delivered its ruling of 18 April 2019. 33. As it transpires from the documents submitted by the parties, by a decision of 3 March 2020 the Vilnius Regional Administrative Court, on the basis of the applicant’s lawyer’s request of 25 February 2020, ordered the Department of Prisons to provide the following documents: 1. the letters of the Department to the Prosecutor General’s Office, asking for the authorisation and the extension of the criminal intelligence measures; 2. the prosecutor’s corresponding applications to the court; 3. the court’s decisions authorising and extending the interception of the applicant’s communications; 4. the Department’s request for the prosecutor’s consent to use the collected information in the disciplinary proceedings; 5. the prosecutor’s consent; 6. the decisions to declassify the materials listed in points 1-3 above. Complying with the court order, the Department provided that court with those documents (thirty-eight pages). As submitted by the Government, during the court proceedings concerning the disciplinary penalties, both the applicant’s lawyer and the applicant had become familiar with the above-mentioned documents (they were in possession of all that information contained in the above-mentioned documents in 2016-2018). 34. On 18 March 2020 the Prosecutor General’s Office also provided the Vilnius Regional Administrative Court with a copy of its letter of 22 June 2016, whereby it had consented to information gathered during the criminal intelligence investigation being used in the disciplinary proceedings. 35. On 30 October 2020 the Vilnius Regional Administrative Court wrote to the Ministry of Justice and the applicant, asking whether, in the light of the extreme health situation in the country, they would not object if the case was heard by means of written proceedings. Both parties agreed. 36. By a ruling of 22 December 2020, in written proceedings, the Vilnius Regional Administrative Court dismissed the applicant’s complaint. The court referred to the ruling of the Constitutional Court of 18 April 2019 (see paragraph 50 below), and observed that, when deciding a case wherein the unlawfulness of an official’s actions was proved by information obtained during a criminal intelligence investigation, the court should examine each time whether the information had been obtained without breaching the law and whether it had been reasonable to use it when investigating disciplinary offences. 37. On the facts, the court established that on 15 June 2016, on the basis of Article 19 § 3 of the Law on Criminal Intelligence, the Department of Prisons had requested the Prosecutor General’s Office to allow the use of the information obtained through criminal intelligence measures when investigating the applicant’s disciplinary offences; that request had been granted. Between June and August 2016, those criminal intelligence investigation materials had therefore been declassified and transferred to the Ministry of Justice, which oversees the Department. 38. As to the applicant’s arguments concerning the lawfulness and proportionality of the criminal intelligence measures, those had already been examined by a court in another set of proceedings, where no breach of the law had been found (see paragraphs 18-23 above). For the administrative court, there was no information in the file that required it to hold that the criminal intelligence institutions’ actions, when gathering information which had been used to examine the disciplinary offences, would not have complied with the law. It was also of relevance that the measures had been taken after a corruption-related crime had been suspected. The fact that no criminal investigation had been opened in respect of the applicant did not, in and of itself, make the use of the criminal intelligence materials unlawful, given that those materials could be used to investigate corruption-related disciplinary offences. In that context, Article 2 § 13 of the Law on State Service was pertinent (see paragraph 48 below). It followed that the materials gathered had been declassified and used in the disciplinary proceedings in compliance with the requirements of Article 19 § 3 of the Law on Criminal Intelligence. 39. On the facts, the administrative court held that both disciplinary offences had been established correctly. Regarding the first disciplinary offence, it had been established on the basis of nine witnesses’ testimony, and the content of the applicant’s intercepted telephone conversations, which he had not denied. Regarding the second disciplinary offence, that was proven by documents, namely contracts with the telecommunications company, the applicant’s entries in the car travel records, and his telephone conversations. The disciplinary penalty of dismissal from work had been imposed on the applicant appropriately, as he had committed two gross disciplinary offences, for which Article 29 § 4 of the Law on State Service provided for dismissal from service (see paragraph 48 below). In the court’s view, as the director of Kybartai prison, the applicant had been its [senior] manager, and higher requirements to observe the law applied to him. He had to lead by example, within and outside the service. The disciplinary offences had been committed by the applicant intentionally. His actions discredited the system of the execution of sentences, reduced society’s respect for State institutions and officials, and gave the impression that State officials could breach the law and use State property for personal gain. 40. Lastly, the administrative court held that there was no basis on which to rule that the criminal investigation measures had been disproportionate, as no information had been provided to show that any serious restrictions of the applicant’s personal rights and freedoms had taken place. The Supreme Administrative Court 41. By a final ruling of 29 April 2021, in written proceedings, the Supreme Administrative Court dismissed an appeal by the applicant. The court noted that both the Ministry of Justice, and the first instance court, when examining the disciplinary offences committed by the applicant, had relied on declassified information obtained through the criminal intelligence measures. The disciplinary offences committed by the applicant had been established on the basis of the entirety of the evidence, and not only on the basis of information obtained through secret surveillance. The first instance court had in particular precisely examined and assessed the lawfulness, reliability and proportionality of the use of the information gathered during the surveillance as evidence, which had later been declassified and had been provided for the investigation of a disciplinary offence. This was in compliance with paragraphs 86.3 and 86.3.1. of the Constitutional Court’s ruling of 18 April 2019 (see paragraph 50 below). Furthermore, the applicant had had an opportunity to put forward his arguments regarding the lawfulness, reliability and proportionality of the use of that information. As noted by the Constitutional Court, Article 19 § 3 of the Law on Criminal Intelligence permitted the use of information obtained through criminal intelligence to investigate corruption-related disciplinary offences. This had been the situation in the applicant’s case, as it stemmed from Article 2 § 13 of the Law on State Service. Both the Ministry of Justice and the first instance court had therefore reasonably relied on declassified criminal intelligence information. 42. The Supreme Administrative Court also noted that by a final ruling of 25 September 2017, the applicant’s arguments regarding the alleged unlawfulness of the criminal intelligence actions had been rejected (see paragraphs 20-23 above). It had to be emphasised that within that (second) set of administrative court proceedings the applicant had not contested the reliability of the information collected during the disciplinary investigations. 43. Given the applicant’s duties – he had been the manager of an institution – and the offences which he had committed, the use of declassified information when examining those offences had been necessary in a democratic society, and had pursued a legitimate aim of guaranteeing transparency and openness in public service and prevention of the abuse of State office. The use of such information for the investigation of disciplinary offences had also been proportionate. The law set a higher disciplinary and moral standard for officials compared with other persons, and those officials’ behaviour when in service should not give rise to doubts about their meeting both the norms of general ethics and service-related ethics. Actions that contradicted the aims of statutory institutions ( statutinės institucijos ) were not acceptable. Use of information thus obtained was a proportionate measure to guarantee the effectiveness of law enforcement institutions. 44. On the entirety of the evidence, the court concluded that the applicant had committed two gross disciplinary offences. Given his position as the manager of an incarceration institution, he had clearly shown an inappropriate example to his employees, and acted for personal gain. His dismissal had therefore been an appropriate measure. 45. The Supreme Administrative Court lastly found that in his appeal, the applicant had not provided any reasoned legal arguments as to why the forwarding of the criminal investigation materials to the Ministry of Justice, for the investigation of disciplinary offences, had restricted his right to respect for his private life under Article 8 of the Convention. | This case concerned a criminal investigation opened into the applicant (he was the governor of a prison), on suspicion that he had provided, for pay, better conditions for inmates, and that he had also awarded them incentives. For one year, his telephone communications were monitored and intercepted, after which the criminal intelligence investigation was discontinued for lack of incriminating evidence. Nevertheless, the use of the collected information was permitted in disciplinary proceedings, which ultimately led to his dismissal. |
524 | Criminalisation of homosexual relations between adults and adolescents | I. THE CIRCUMSTANCES OF THE CASE 9. The applicants were born in 1967 and 1968 respectively and live in Vienna. A. The first applicant 10. On 8 February 1996 the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ) convicted the first applicant under Article 209 of the Criminal Code ( Strafgesetzbuch ) of homosexual acts with adolescents and sentenced him to one year's imprisonment suspended on probation for a period of three years. Relying mainly on the first applicant's diary, in which he had made entries about his sexual encounters, the court found it established that between 1989 and 1994 the first applicant had had, in Austria and in a number of other countries, homosexual relations either by way of oral sex or masturbation with numerous persons between 14 and 18 years of age, whose identity could not be established. 11. On 5 November 1996 the Supreme Court ( Oberster Gerichtshof ), upon the first applicant's plea of nullity, quashed the judgment regarding the offences committed abroad. 12. On 29 January 1997 the Vienna Regional Criminal Court resumed the proceedings, which had been discontinued as far as the offences committed abroad were concerned, and found the first applicant guilty under Article 209 of the Criminal Code of the offences committed in Austria, sentencing him to eleven months' imprisonment suspended on probation for a period of three years. 13. On 27 May 1997 the Supreme Court dismissed the first applicant's plea of nullity in which he had complained that the application of Article 209 of the Criminal Code violated his right to respect for his private life and his right to non-discrimination and had suggested that the Supreme Court request the Constitutional Court to review the constitutionality of that provision. 14. On 31 July 1997 the Vienna Court of Appeal ( Oberlandesgericht ), upon the first applicant's appeal, reduced the sentence to eight months' imprisonment suspended on probation for a period of three years. B. The second applicant 15. On 21 February 1997 the Vienna Regional Criminal Court convicted the second applicant under Article 209 of the Criminal Code of homosexual acts with adolescents, and on one minor count of misappropriation. It sentenced him to six months' imprisonment suspended on probation for a period of three years. The Court found it established that on one occasion the second applicant had had oral sex with a 15-year-old. 16. On 22 May 1997 the Vienna Court of Appeal dismissed the second applicant's appeal on points of law, in which he had complained that Article 209 of the Criminal Code was discriminatory and violated his right to respect for his private life and had suggested that the Court of Appeal request the Constitutional Court to review the constitutionality of that provision. It also dismissed his appeal against sentence. The decision was served on 3 July 1997. | The applicants were convicted for having homosexual intercourse with young males of 14 to 18. Austrian legislation classified as a criminal offence homosexual acts of adult men with young males between 14 and 18, but not with young females in the same age bracket. |
777 | Forcible medical intervention or treatment | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1980 and lives in Püspökladány. 7. On 6 March 2010 the applicant got into a fight in a car park in front of a nightclub in Püspökladány, apparently under the influence of alcohol and drugs. The incident was reported to Püspökladány police station. 8. The applicant asserts that around 3 a.m. he and his girlfriend were sitting in his car, not in traffic, pulled over to the side of the road, when patrolling police officers approached them. According to the file produced in the subsequent criminal proceedings, the applicant refused to take a breathalyser test for alcohol. Following an identity check and a search, he was handcuffed and taken to Püspökladány police station to be held for questioning ( előállítás ), on suspicion of having committed an offence. According to the police reports, the police officers believed that he was under the influence of either alcohol or drugs. 9. At the police station the applicant started to insult the police officers and was handcuffed again. According to the applicant, he was also placed in leg restraints, during which time he suffered injuries. He was then transported to the Püspökladány medical emergency service by four police officers for a blood and urine test. 10. The applicant told a doctor that he was unable to urinate. According to the police reports, the applicant was under the influence of alcohol, “uncooperative, making the insertion of a catheter necessary”; he was also “violent and resisted the procedure”. Furthermore, “it was necessary to physically restrain him and have recourse to force” to obtain the necessary urine sample. 11. The doctor on duty proceeded with the applicant ’ s catheterisation while the latter ’ s arms were handcuffed. Afterwards, the doctor cut the applicant ’ s shirt and took a blood sample. He also issued a medical report on the applicant ’ s injuries. 12. On 22 April 2010 the applicant was fined 50,000 Hungarian forints (HUF – approximately 180 euros (EUR)) for the minor offence of failing to comply with lawful police measures. That decision was subsequently overturned, and the proceedings were discontinued by a decision of the Püspökladány District Court of 22 April 2011. The Püspökladány District Court established that the police measure could not be held to be lawful, since the medical intervention had been carried out without the applicant ’ s written consent, required under the Health Care Act. 13. Furthermore, in a judgment of 15 November 2011 the Püspökladány District Court found the applicant guilty of disorderly conduct, drink - driving and violence against a representative of a public authority. He was sentenced to two years and three months ’ imprisonment. The applicant challenged the evidence obtained through the urine test, and the court found it established that he had consented to the use of the catheter, as evidenced by five or six witness testimonies, and he had only withdrawn his consent upon realising that the intervention was painful. The judgment stated that, irrespective of the result of urine test, it was clear that the applicant had been under the influence of alcohol at the material time, as observed by the police officers, the witnesses and the doctor on duty. On appeal, the applicant ’ s sentence was reduced to one year and nine months ’ imprisonment suspended for five years by the Debrecen Regional Court. 14. On 11 March 2010 the applicant lodged a criminal complaint against the police officers involved in the incident, alleging that they had interrogated him by subjecting him to ill-treatment – beating him, using handcuffs and leg restraints, and forcibly taking blood samples from him and urine samples by catheterisation. 15. On 26 November 2010 the investigations division of the Debrecen public prosecutor ’ s office discontinued the criminal proceedings for lack of any conclusive evidence. As to the urinary catheterisation, relying on the witness testimonies of the doctor on duty, a nurse, a driver who was on duty at the medical service at the time and the police officers, the prosecutor ’ s office concluded that the applicant had voluntarily agreed to the sample being taken by catheterisation. Referring to an expert opinion produced by the Medical Expert Division of the Forensic Expert and Research Institute, the prosecutor ’ s office found that urinary catheterisation did not amount to a surgical intervention. In any event, the use of physical restraint had only been necessary as the applicant had become aggressive and tried to resist once the medical intervention had started. 16. The applicant lodged a complaint against the decision, requesting that the investigation into the unlawful use of leg restraints and the catheterisation continue. By a decision of 10 January 2011 the Hajdú Bihar county chief public prosecutor ’ s office dismissed the applicant ’ s complaint, endorsing the findings of the first-instance authority. 17. In a parallel procedure, on 16 March 2010 the applicant lodged a complaint with the Independent Police Complaints Board (“the Board”), the body responsible for inquiring into alleged violations of fundamental rights committed by the police, challenging the use of handcuffs and leg restraints, the fact that he had been held for questioning, his ill-treatment at the hands of the police officers, and the forcible taking of urine and blood samples. The Board inquired with the doctor on duty about the incident, who stated in his reply that the applicant had agreed to the insertion of a catheter before a number of witnesses, and that he had interpreted the fact that the applicant had removed his clothes as consent to the procedure. According to the doctor, the applicant had been cooperative and had only turned violent at a later stage. According to the facts established by the Board, since the applicant had been unable to produce the urine sample, the police officers had asked the doctor on duty to carry out the catheterisation. 18. The Board commissioned an expert opinion from the chief physician of the Budapest Institute of Forensic Medicine, who stated in an opinion of 4 June 2010 that, although some medical institutions required written consent for catheterisation, this was not the policy of the majority of institutions. In his opinion, such a procedure was not general practice, and recourse to an “emergency” intervention was professionally unreasonable. In any event, according to professional guidelines, if a urine test could not be carried out, a blood test was sufficient. 19. In an opinion of 4 August 2010 the Board found that the use of handcuffs had been legitimate and that the ill-treatment alleged could not be established. However, as regards the catheterisation and the use of leg restraints, the Board concluded that those measures had infringed the applicant ’ s right to dignity, physical integrity, health and a fair trial. It forwarded its opinion to the Commander of the National Police Service. 20. Following the adoption of the Board ’ s opinion, the applicant ’ s complaint was examined by the Commander of the National Police Service under section 92(1) of Act no. XXXIV of 1994 on the Police ( “the Police Act ” ), with a view to establishing whether the police measure had been unlawful. It was dismissed on 26 October 2010. The decision established that the applicant had informed the doctor on duty that he had been unable to produce a urine sample and that he would not drink water in order to be able to do it later. He had behaved aggressively and had been uncooperative, but had nonetheless agreed to the catheterisation before witnesses by loudly screaming “do the catheterisation”, and had undressed voluntarily. He had only been restrained to prevent him from causing injuries to himself or the doctor, once the procedure had started. Moreover, the forcible taking of a sample was justified in situations where there were grounds to believe that the driver of a vehicle was under the influence of alcohol or drugs. 21. The applicant sought judicial review of the decision, arguing that he had not been heard during the proceedings and the facts had been established solely on the basis of the testimonies of the police officers and the medical staff. He disputed the finding that he had voluntarily undressed for his catheterisation. He emphasised that he had submitted a medical report substantiating his allegations about the use of leg restraints, which had been disregarded by the Commander of the National Police Service. 22. On 7 February 2012 the Budapest Regional Administrative and Labour Court dismissed his action. The court emphasised that, according to the medical expert opinion commissioned by the Board, there was no clear medical approach to catheterisation and the question of whether it was an invasive or non-invasive intervention, thus hospital practice differed in relation to the necessity of consent. If an examination was considered invasive, oral consent was not sufficient. In any case, the procedure could always be stopped. The medical expert also stated that, in comparison to a blood test, a urine test was not a precise method to establish whether a person was under the influence of drugs. Furthermore, catheterisation was a procedure that could be interrupted at any time. 23. The court concluded that the procedure had been in compliance with the provisions of the Police Act setting out that a police officer could oblige a driver to provide a sample of breath, blood and urine for the purposes of a test. The court also indicated that the question as to whether consent was required for catheterisation, and whether the procedure should or should not have been carried out against the applicant ’ s will, was outside the scope of its examination. It had been up to the doctor and not the police officers to decide on the method by which to take a sample. The court also took note of several witness testimonies and concluded that the use of leg restraints could not be established in the applicant ’ s case. 24. The applicant lodged a petition for review with the Kúria, arguing that the Commander of the National Police Service had failed to establish the facts of the case. In particular, the service had not commissioned a medical report capable of substantiating the use of leg restraints, had not heard him in person, and had drawn erroneous conclusions as regards his consent to the catheterisation. The applicant further submitted that the first-instance court had erred in classifying the medical examination, since it had been neither obligatory under the provisions of the Police Act, nor reasonable or proportionate according to medical standards. 25. The Kúria upheld the first-instance judgment on 25 March 2014, endorsing its reasoning. The judgment was served on the applicant on 11 July 2014. | This case concerned the applicant being forced by the police to take a urine test via a catheter on suspicion of his being under the influence of alcohol or drugs while driving. He complained that the forcible taking of a urine sample from him had constituted inhuman and degrading treatment and a serious intrusion into his physical integrity. |
157 | Medically-assisted procreation | 2. The applicants were born in 1980 and 1971 respectively and live in Attard. The applicants were initially represented by Dr H. Mula and later by Dr M. Paris, both lawyers practising in Pieta`. 3. The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate. 4. The facts of the case may be summarised as follows. THE CIRCUMSTANCES OF THE CASE Background to the case 5. The applicants were married on 20 May 2012. After unsuccessful attempts at having children, they were given medical advice that the only remedy to have children was by means of assisted procreation in vitro fertilisation (“IVF”). 6. On 27 September 2014 the second applicant, aged forty-two years, underwent Intracytoplasmic Sperm Injection (“ICSI”), using her own ova, at a private hospital, at the State’s expense. The treatment was provided by the Government of Malta free of charge to subjects satisfying the Maltese Embryo Protection Authority’s (hereinafter referred to as “the Authority”) protocol (hereinafter “the protocol”) established by Chapter 524 of the Laws of Malta, namely the Embryo Protection Act (see Relevant Legal Framework below). 7. The treatment was not successful and consequently the applicants requested another cycle of treatment on 31 August 2015. After a thorough medical assessment of the potential mother, Dr J.M., on behalf of the applicants, requested the treatment to be carried out in November 2015 when the second applicant would have been forty-three years and eleven months old. 8. On 14 September 2015 the Authority refused the request stating inter alia that: “With reference to the attached scan and the below communication, EPA [the Authority] discussed your case as presented. However, EPA is still bound by the present law as it is today, whilst [it] also cannot deviate further from the protocol terms as stated in Chapter 6 of the said protocol. In respect of this, EPA unanimously decided that the request cannot be approved.” 9. At the time of the second applicant’s request for a second cycle, the age bracket endorsed by the Parliament of Malta on an annual basis was that between twenty-five and forty-two years, a requisite which in the applicants’ opinion was in breach of their right to family life and the right not to be discriminated against. They also considered that they had fulfilled the other two criteria required, namely, being married and that according to medical advice they had reasonable prospects of success. 10. Following the refusal by the Authority, the applicants communicated on various occasions with the Authority in order to have an explanation which was never tendered. 11. Consequently, on 4 April 2016 the applicants filed a judicial letter in the Civil Court (First Hall) in its constitutional competence addressed to the Authority pointing out the breach of the fundamental right to family life. The Authority replied that it was guided by the protocol as established by law and approved by medical experts in the field. Constitutional redress proceedingsFirst-instance First-instance First-instance 12. On 9 March 2017 the applicants instituted constitutional redress proceedings before the Civil Court (First Hall) in its constitutional competence (hereinafter “the court”). They considered, firstly, that the concession, granted by Section 6 of Chapter 524 of the Laws of Malta, to have a protocol outlining guidelines in the sector had to be in line with the law and fundamental human rights and that secondly, the failure to fulfil these standards meant that the Government had to intervene to rectify such a breach within the protocol. They noted that the Government had been informed every year about the applicable age bracket and that, this notwithstanding, the Government failed to stop what the applicants believed to be discriminatory treatment arising from the protocol adopted by the Authority. They thus considered that the refusal of the authorities in their case, and the fact that the protocol only allowed access to IVF procedures between the age of twenty-five and forty-two constituted a breach of their right to private and family life and their right not to be discriminated against, and asked the court to declare these breaches accordingly. They relied on Articles 8 and 14 of the Convention, and the Maltese Constitution. They further asked the court to declare the refusal decision null, to order the medical examination of the second applicant to assert whether there existed any supplementary risks, in the absence of which, that she be authorised to undergo treatment, and to liquidate damage. 13. During these proceedings the following testimony was produced: The second applicant declared that the couple had tried to make the requested cycle in Spain, which would have been approved, but it was too expensive and they could not afford it. She insisted that if the couple were on a better financial footing they could have become parents, but as a result of their financial situation (which did not allow them to pursue treatment abroad) and the age-limit set in Malta she had been discriminated against. 14. The first applicant confirmed the above, noting that in the first month they had already disbursed five thousand euro and could not afford it. He insisted that the medical assessment of his wife should have determined whether she was eligible or not, and not her age. He considered that they had been discriminated against because no other law set an age-limit for people to have children, and because they were not in a financial position to travel abroad to obtain treatment. 15. Dr J.M. testified that, when examined, the second applicant was in good health conditions for a pregnancy, having a good quality reserve of ova, and that she was still able to bear children. He explained that although no specific reason for the refusal was given by the Authority, it was clear that the reason was because of her age since this was the only requisite which was not satisfied. He emphasized that the second applicant had been perfectly healthy for another cycle of IVF but was obstructed by what was spelled out in the protocol. 16. S.A., in representation of the Authority, confirmed that: every application of persons over the age of forty-two (four applications in all) had always been refused; the first cycle was given to the applicant by way of priority since she was almost forty-three years of age; she was also allowed to fertilise three ova as opposed to two; the Authority adhered strictly to the protocol with regard to the age of the applicants; in this case the second cycle, which the applicants were going to pay for themselves, could not be acceded to, solely, because the second applicant was above the maximum age, this was irrespective of the fact that the protocol indicated the age bracket as being “desirable”. She further explained that the protocol was drafted after lengthy discussions with the association of paediatrics and the association of gynaecologists and obstetricians and other stake holders, including others who already operated IVF in the private sector, it had then been presented in Parliament in 2013. She also presented a list of criteria which had to be fulfilled for authorisation to be granted, which had been drawn up by Drs M.S. and M.F. in representation of the Malta College of Obstetricians and Gynaecologists and Drs P.S. and J.M. in representation of the Malta Paediatric Association, who had been consulted on the matter. 17. Prof M.B. (the clinical director of the gynaecology and maternity department, who had been consulted on the drafting of the law) considered that the crux of the case was one of ageism. Although he had various issues with the law – in so far as it had not allowed sperm donation or surrogacy – he had not been very critical of the age-limit. He considered that not all persons of the same age were in the same situation and thus disagreed with a mandatory age-limit, noting that in fact the protocol referred to the word “desirable”. Thus, he could agree with the protocol which referred to the age bracket being desirable, in the context of the laws in force at the time. However, he conceded that the chances were that the ova gathered from a woman aged forty-three would be of a of lesser quality, resulting in a poor success rate (4-5%). Such harvesting could have allowed an element of exploitation which the law sought to avoid so to protect women from such exploitation and the negative psychological impact that came with it. He nevertheless was of the view that a woman of forty-three years of age, who had a good reserve of ova, should have a right to decide (following consultation with her doctor and subsequent informed consent regarding the prospects of success) on whether to proceed or not with the procedure – but only in the absence of exploitation. He further noted that procedures had been authorised and made available to women under twenty-five years of age when there were problems with the male partner’s sperm. 18. Dr M.S. and Dr M.F., both medical consultants specialising in Obstetrics and Gynaecology, who had not been involved in drafting the protocol, stated that such treatment could have negative effects on a woman, such as hyper stimulation syndrome, which could cause various serious complications such as loss of blood from the ovarian puncture sites, damage to the bowel and infections; since the law did not provide for donor gametes, and thus only the woman’s ova could be used, an age-limit had to be set; the maximum age of forty-two years indicated in the protocol was dictated by the very low chance of success (less than 10%) when performed on women having that age using their own ova. Apart from that, there was a high risk of miscarriage – meaning that these women would need more cycles of stimulation with all the risks that they carry. There was also a high probability that they would require interventions such as dilation and curettage in the case of a miscarriage. They further explained that in certain countries the maximum age [for a woman to undergo treatment] could extend to fifty years or more because of the opportunity of donor gametes. They also mentioned a 73% chance of abnormal birth when a woman was older than forty and used her own ova. 19. Dr P.S. specialised in paediatrics, who had also been consulted in the drafting of the protocol, averred that women in advanced age during pregnancy can suffer complications for them and the child. He referred to multiple pregnancies and hyper stimulation syndrome and the life-threatening consequences it could have (such as fluid in the lungs or kidney failure). He noted that the protocol had been drafted based on the English model and explained that the cut-off date of forty-two years was chosen since, after such age, the risks outweighed the benefits. He mentioned that at that age the risks for both the mother and the child existed both in assisted as well as natural procreation. As to the word “desirable” used in the protocol, he explained that it aspired to the optimum, but it did not mean that one could not go beyond. The protocol provided guidelines and was not to be interpreted restrictively. In his view, the ability of a women to undergo the procedure was to be established by a medical examination and relevant tests, which would provide a comprehensive and objective picture of any problems the couple may have, and not on the woman’s identity card details. 20. By a judgment of 28 September 2018, the court rejected the defendants’ plea of non-exhaustion of ordinary remedies and on the merits found against the applicants. 21. It considered that the crux of the issue was the interpretation of the protocol by the Authority exercising its powers under the Embryo Protection Act. It was clear, from the testimony brought forward, that despite the word “desirable” the Authority interpreted the age-limit as a mandatory condition. In the court’s view, the protocol had been adopted after serious consideration and discussion with relevant stakeholders, including four experts. The guidelines were set out so that IVF would be of least peril to the mother and the embryo, and so that it would be successful. The majority of the experts agreed about the problems involved in relation to women aged over forty ‑ two, both in respect to natural procreation and even more in respect of medically assisted procreation (where a woman was induced to produce more than one ovum in each cycle). The risks involved were not negligible. One could not ignore that the embryo’s health depended on that of the mother, and that an abnormal foetus could also be a result. 22. The court agreed that the reason why an age-limit had to be fixed was that the law, at the time, had not allowed the use of donor gametes. This was no longer the case. However, the court considered that the State had the right to regulate the procedures which i) it was not obliged to provide and ii) it was providing free of charge. It was the State’s duty to protect state coffers and it was not in doubt that the expenses related to such treatments were high. Thus, bearing in mind the statistics and the fact that the State was offering such a service, as well as the risks involved after a certain age and the negative impact both on the success of the procedure and the embryo, later foetus or child, it considered that by means of the protocol, the State had provided a fair and proportionate balance between the applicants’ right to respect for private and family life and that of society in general, also considering that any future health problems of the mother and child would also be covered by state coffers. However, it sympathised with the applicants’ argument concerning the word “desirable” which could lead to a certain uncertainty and considered that any maximum age should be explicitly provided for, save determined exceptions (as provided, for example, in the amended law where donor gametes were now allowed and the age of collection of ova was limited to thirty-six, save listed exceptions). 23. In addition, the court considered the applicants’ discrimination complaint being two-pronged, based on age and financial situation. It found that the protocol did not give rise to discriminatory treatment on the basis of age since all the persons of the same age had been treated the same, and people below the relevant age group had also been excluded from the procedure. Neither had there been any discriminatory treatment vis-à-vis other individuals of the same age who could have children without assistance (and thus were not in an analogous position to the applicants), nor wealthier individuals who could travel abroad to obtain such treatment (as anyone in the same financial bracket as the applicant faced the same impediment). Thus, neither the promulgation of the protocol nor its interpretation could give rise to discrimination. 24. The applicants were ordered to pay court expenses amounting to 2,149 euros (EUR). Appeal 25. The applicants appealed against the entirety of the judgment. They argued, in particular, i) that the first-instance court had made a wrong assessment of the facts in so far as it considered that the applicants were seeking the financial aid of the State which was not the case, ii) the authority had a discretion to decide whether to authorise the procedure as the term “desirable” in the protocol meant that the maximum age-limit had not been mandatory as applied by the Authority – thus their wrong interpretation had rendered the applicants’ hopes of having children nugatory and iii) it was untrue that the protocol had been put in place after proper consultation – M.F. and M.S. had not been involved in the drafting of the protocol, M.B. disapproved of the interpretation given by the Authority as to the age-limit being mandatory, and P.S. had only testified that the Government adopted the system in place in the United Kingdom. 26. By a judgment of 27 September 2019 the Constitutional Court confirmed the first-instance judgment. 27. The Constitutional Court considered that what was important in the case was not who had been consulted in the drafting of the protocol but whether in the medical sphere there was justification for imposing such time ‑ limits. It observed that, while it was true that the protocol did not make the age bracket mandatory, such limitation was nevertheless justified, and the Authority was entitled to apply such a limitation in all the cases before it. The State had a duty to protect public health and limit risks to individuals so that a balance could be reached between the interest of private citizens to procreate and the State’s duty to ensure a healthy society, as well as avoiding the exploitation of women. The State was so conscious of its duty to safeguard public health that health care was, for the most part, free of charge in Malta. 28. The fact that the age-limit indicated was not mandatory did not mean that the Authority, using its discretion, and on the basis of medical findings, could not decide to apply that age-limit. While the Authority had the discretion to decide to go beyond the age bracket, it also had the discretion to apply it. Even the applicants’ doctor testified that the offspring had more chances of complications ( xi ħaġa ), but that it was then based on the woman’s decision once the situation would have been explained and her having given informed consent. However, according to the Constitutional Court, this could not be left solely to the discretion of the parents. The Authority’s decision and that of the first-instance court were supported by the experts who testified and thus the appeal could not be upheld, and it was unnecessary to examine the other grounds of appeal. Costs were to be borne by the applicants. | The applicants were husband and wife. The case concerned the authorities’ refusal in 2015 to carry out, at their expense, Intracytoplasmic Sperm Injection – a procedure to assist procreation – on the second applicant’s ova owing to her having reached the age of 43. They had previously availed of the procedure, paid for by the State, in 2014. |
79 | Parental authority, child custody and access rights | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1953 and 1943 respectively and live in Vienna. 6. In 1997 the biological mother of F., then two years old and born out of wedlock, set her apartment on fire after having consumed drugs. The mother and her child were rescued and, on 19 December 1997, the Vienna Youth Welfare Office ( Amt für Jugend und Familie ) handed F. over to the applicants as foster parents. 7. The applicants subsequently tried to obtain custody of F. and wanted to adopt him. F. ’ s mother recovered and was at first allowed access to visit her son. She then tried to obtain custody of F., which led to arguments between her and the applicants. Since these disputes were to the detriment of F., he was given to a “crisis foster family” ( Krisenpflegefamilie ) on 25 October 2001 for approximately eight weeks. After that period F. was handed over to his biological mother, who obtained provisional custody of him following a decision of the Vienna Juvenile Court ( Jugendgerichtshof ) on 19 December 2001. This decision entered into force on 18 December 2002, when the Supreme Court rejected an appeal by the applicants ( Revisionsrekurs ). 8. In the meantime on 20 December 2001 the applicants requested the right to visit F. Thereupon the Juvenile Court asked the Vienna Youth Welfare Office for their observations on the applicants ’ request. 9. The Vienna Youth Welfare Office submitted observations on 31 December 2001, stating that because of the long-lasting relationship between F. and the applicants it would be inappropriate not to allow access to the foster parents. 10. On 31 January 2002 the Juvenile Court heard the biological mother, who opposed the granting of visiting rights to the applicants because F. was in the process of getting used to her again. 11. On 8 February 2002 the applicants requested the acceleration of the proceedings ( Fristsetzungantrag ) under Section 91 of the Austrian Court Act. 12. On 28 March 2002 the Vienna Juvenile Court Assistance Office ( Wiener Jugendgerichtshilfe ) submitted their observations to the Juvenile Court. In the following months both parties repeatedly filed written observations on that report. The applicants also requested that an expert for child psychology be appointed. 13. On 2 December 2002 the applicants complained about the length of the proceedings and requested the opinion of an expert on child psychology. The biological mother objected to this request. 14. On 4 December 2002 the Juvenile Court asked the applicants whether they were maintaining their request for the appointment of an expert, given that meanwhile a report by the doctor with whom F. had had therapy had been obtained. On 10 December 2002 the applicants informed the court that they insisted on the appointment of an expert and proposed further questions to be put to the expert appointed. 15. On 17 February 2003 the Juvenile Court designated Dr. Sp. as the expert. The biological mother filed objections against Dr. Sp. 16. In July 2003 the court file was transferred to the Vienna Regional Court for Civil Matters, which was dealing with an appeal lodged by the applicants in the custody proceedings concerning F. lodged on 23 May 2003. On an unspecified date the Vienna Regional Court transferred the file to the Wiener Neustadt Regional Court as it considered that that court was competent to decide on the appeal. The Wiener Neustadt Regional Court did so on 19 and 29 January 2004; the file was then forwarded to the Mödling District Court, which had meanwhile become competent to deal with custody and visiting - rights proceedings. 17. On 16 December 2003 Dr Sp asked the District Court for leave to be discharged from the duty to prepare an expert report. He submitted that a report was not feasible because he had not been given the opportunity to examine F. thoroughly by F. ’ s mother. 18. The Mödling District Court held a hearing with the parties on 1 April 2004 in order to discuss how to proceed further with the case. The judge informed the applicants and the biological mother that he would ask the Youth Office of the Mödling District Administrative Authority ( Jugendamt der Bezirkshauptmannschaft ) for a final report on the issue of visiting rights. 19. P. , who was the officer in charge at the Youth Office of the Mödling District Administrative Authority, submitted the report on 29 July 2004. She recommended refusing visiting rights to the applicants, because the reestablishment of contact with F. after it had been interrupted for more than two years might harm the psychological stability of the child. On 17 August and 16 September 2004 the parties submitted their comments on that report. 20. On 3 August 2004 Dr. Z. of the Niederösterreich Child and Youth Psychological Consulting Office ( Kinder- und jugendpsychologischer Beratungsdienst ) also suggested that the applicants should not be granted access to F., explaining that F. was aware of the difficulties between his mother and the applicants and therefore, as a protective measure, had said that he did not want to see the applicants. Dr. Z. further stated that not seeing the applicants was not to the detriment of the child. The applicants submitted observations regarding these recommendations. 21. On 9 November 2004 the Mödling District Court rejected the applicants ’ request to visit F. and found that failure to provide for personal contact ( Unterbleiben des persönlichen Verkehrs ) between the applicants and F. did not endanger his well-being. 22. It found that under Article 148 (4) of the Civil Code a court, upon the request of a parent, the child, a youth welfare body or of its own motion had to take the necessary measures if failure to provide for personal contact between the child and the third person would endanger his or her well-being. Third persons, in contrast to parents or grandparents, had no legal right to be granted contact rights and consequently no legal standing in related court proceedings. They could merely suggest to the court ( anregen ) that it examine the matter of its own motion, and a court could only grant contact rights if failure to do so would endanger the child ’ s well-being. 23. Taking the applicants ’ request as such a suggestion, visiting rights could not be granted. From all the material in the possession of the District Court it was evident that F. was vehemently opposed to meeting the applicants, while at the same time he had developed a close and positive relationship with his mother. The District Court acknowledged that the applicants had a genuine concern for F. ’ s well - being; however, in the present situation the interests of the applicants did not coincide with the child ’ s best interests. Given that F. had not been in contact with his foster parents for more than three years, the District Court would follow the conclusions in the reports of P., from the Youth Office of the Mödling District Administrative Authority, and Dr. Z., from the Niederösterreich Child and Youth Psychological Consulting Office. It was quite possible that immediately after F. had been placed with the “crisis foster family” in October 2001 the granting of visiting rights to the applicants might have been useful. However, this was no longer the case and it now served the best interests of the child, who was living with his biological mother, not to put him back in a situation of divided loyalties ( Loyalitätskonflikt ) between her and his “former family”, the applicants. 24. On 6 December 2004 the applicants appealed against the District Court ’ s decision. They argued that the refusal of visiting rights breached their rights under Article 8 of the Convention. 25. The Regional Court dismissed the applicants ’ appeal on 17 February 2005. It found that foster parents could file requests in proceedings concerning the foster child and also had the right to appeal against decisions. The status of a foster parent was, however, a matter which depended rather on whether the person actually cared for the child and whether a lasting emotional link similar to the one between parents and children had developed. Even though the applicants had lived with F. for approximately forty-six months in the same household with the intent to develop such emotional ties, it was actually more than forty months since they had had care of him and they could now no longer be considered his foster parents. Nevertheless, their appeal had to be considered on its merits, and, for the reasons given by the District Court, granting visiting rights to them was not in the best interests of F. The appeal was therefore unfounded. 26. On 25 May 2005 the Supreme Court dismissed an extraordinary appeal by the applicant ( außerordentlicher Revisionsrekurs ). That decision was served on the applicants ’ counsel on 7 July 2005. | Between December 1997 and October 2001 the applicants, a married couple, were foster parents to a boy, born in 1995. After his biological mother regained custody of him, the applicants were denied access as well as visiting rights. They complained in particular that the Austrian courts had decided – after proceedings lasting three and a half years – that granting them visiting rights was no longer in the child’s best interests. |
998 | Right to a fair trial (Article 6 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant club was founded on 3 February 1988 in Tbilisi. Subsequent to the last changes in its corporate structure, on 10 February 1999, the Vake District Court in Tbilisi incorporated the applicant as a branch of a German limited liability company, “BAUML GmbH”. 1. Proceedings against Dinamo FC 6. Under contracts of 11 May and 5 December 1990, the applicant engaged Mr Giorgi Kinkladze (“the footballer”) as a professional player until 30 June 1993. 7. On 11 July 1992 the applicant and the football club Dinamo FC, both members of the Georgian Football Federation (“the GFF”), entered into an agreement on the footballer's transfer to Dinamo FC. It was arranged that the footballer would play for the new club after the latter had paid the applicant 1,000,000 Soviet roubles (the equivalent of 6,000 euros (EUR), according to the applicant). In addition, if the footballer was later transferred abroad, the applicant was to receive 50% of the international transfer fee owed to Dinamo FC. If Dinamo failed to fulfil that obligation, the agreement between it and the footballer would become null and void. 8. On 13 August 1992 Dinamo FC paid the applicant the sum agreed in roubles and the domestic transfer took effect. 9. Under a contract of 11 July 1995, Dinamo FC transferred the footballer to Manchester City FC for a lump sum of USD 1,750,000 (EUR 1,380,000 [2] ). In the event of the footballer's further transfer by the English club for a fee in excess of USD 3,000,000 (EUR 2,370,000), Dinamo FC was entitled to receive 10% of the excess amount. Subsequently, Manchester City FC indeed transferred the footballer to AFC Ajax, and Dinamo FC thus received around GBP 1,250,000 (EUR 1,820,000) from the English club. 10. Having received the lump-sum transfer fee from Manchester City FC, Dinamo FC never remitted to the applicant the percentage agreed under the contract of 11 July 1992. Seeking to obtain the amount owed to it, the applicant complained to the GFF. 11. On 2 January 1997 the Disputes Committee of the GFF decided that Dinamo FC owed the applicant USD 875,000 (EUR 691,000), corresponding to one half of the transfer fee paid by Manchester City FC. Dinamo FC was ordered to pay this sum in three instalments. 12. On 14 April 1997 the applicant referred the matter to the Fédération Internationale de Football Association (the “FIFA”) requesting its intervention to secure enforcement by the GFF of its decision of 2 January 1997. 13. The FIFA reminded the GFF on 28 April, 12 June, 29 July and 28 August 1997 of its obligation to enforce decisions and thus to settle the dispute between the Georgian clubs, warning that non-compliance with FIFA directives might result in disciplinary proceedings against the GFF. 14. On 1 September 1997 the GFF Emergency Committee decided that Dinamo FC was liable to pay the total amount of USD 875,000 (EUR 691,000) to the applicant immediately and that, in case of failure to comply with this decision, Dinamo FC would be relegated to the Second Division of the Georgian Championship. That sanction would not, however, release the debtor from its obligation to fulfil its financial commitments vis ‑ à-vis the applicant. In addition, the GFF warned both clubs that they were barred, under the GFF and FIFA Statutes, from referring the dispute to a court of law. 15. Following the applicant's complaints, on 16 April and 6 June 1998, that the dispute had still not been settled, the FIFA again notified the GFF, requesting the enforcement of the latter's decisions at the latest by 31 August 1998, on pain of international sanctions. 16. In the meantime Dinamo FC had taken the matter to a civil court. In a judgment of 13 July 1998, the Vake-Saburtalo District Court in Tbilisi declared the transfer agreement signed by both parties on 11 July 1992 to be null and void. Subsequently, the decision of the Disputes Committee of the GFF of 2 January 1997 was also annulled. During the hearing, the applicant pointed out that the District Court had no right to examine the issue, since the clubs, as GFF members, enjoyed immunity from the jurisdiction of the ordinary courts. That argument was left unanswered. The judgment, not having been appealed, became binding. 17. On 17 September 1998, in view of that judgment, the GFF decided to annul its decision of 1 September 1997 and thus to terminate the dispute. 18. On 24 August 1999 the applicant appealed to the Bureau of the FIFA Players'Status Committee (“the Bureau”), a disputes resolution organ. In a decision of 6 September 1999, the Bureau considered that the FIFA should intervene since it was clear that one of the parties “was not behaving properly and that the GFF was not able to settle the matter by itself”. 19. Without challenging the findings of the Vake- Saburtalo District Court in Tbilisi on 13 July 1998 about the nullity of the contract of 11 July 1992, the Bureau stated on 6 September 1999 that the footballer's transfer from the applicant to Dinamo FC had nevertheless taken place and that no compensation had been paid in return. It therefore concluded that: “There had been a transfer of possession of the federative rights to the player between two clubs, without any contract binding them (since the transfer contract had been declared null and void by the court) and, since one of the parties had indeed performed its obligation, it was logical for that party to be properly indemnified for having done so in good faith.” 20. In the light of its findings, the Bureau decided that compensation for the training and development of the footballer had to be paid to the applicant; both clubs were instructed to negotiate the amount. In the event of further disagreement, the FIFA Special Committee would resolve the issue for them. Furthermore, noting that Dinamo FC had severely breached Article 59 § 1 of the FIFA Statutes by submitting the dispute to a court of law, the Bureau fined that club CHF 20,000 (EUR 12,824). 21. The applicant lodged an appeal against this decision with the FIFA Executive Committee (“the Executive Committee”), which delivered its final decision on 24 March 2000. The appeal having been lodged out of time, the Executive Committee rejected it. However, in view of the fact that the clubs had failed to negotiate an amount of compensation, it determined that Dinamo FC had to pay the applicant USD 300,000 (EUR 236,000). 22. Dinamo FC complied with this decision and fully paid the debt in January 2001. 2. Proceedings against the GFF 23. Considering that the amount fixed by the FIFA was insufficient to compensate for the loss sustained, the applicant brought an action for damages in the amounts of USD 9,600,000 and GBP 2,812,500 (totalling EUR 11,750,000) against the GFF before a court of law. It argued that the respondent, contrary to its Statutes, had failed to abide by its positive obligation to protect the rights of its member clubs. As a result of this negligence, the unjust enrichment of Dinamo FC had occurred at the expense of the applicant's property rights. 24. The applicant also requested leave to defer payment of the court fees (known as State fees) until after examination of the case. On 11 April 2003 the Tbilisi Regional Court refused to defer payment on the ground that the applicant's request was not substantiated by evidence of insolvency. The value of its claim being high, the applicant eventually paid the court fees, in the maximum amount of GEL 5,000 (EUR 2,200) under Article 39 §§ 1 and 2 of the Code of Civil Procedure (“the CCP”), on 5 May 2003. 25. The Tbilisi Regional Court, as the court of first instance, examined the action on 13 November 2003 and dismissed it as manifestly ill-founded. 26. On 5 January 2004 the applicant lodged a cassation appeal with the Supreme Court of Georgia. Referring to the fact that it had suspended its activities because of financial problems (near bankruptcy) caused by the respondent's wrongful acts, the applicant requested exemption from the court fees for cassation proceedings. In case this motion for total exemption was rejected, the applicant also requested leave to pay the court fees either in a reduced amount or with deferment. It referred to the right of access to a court guaranteed by the Constitution. 27. On 30 January 2004 the Supreme Court refused to grant the applicant's request for partial or full exemption from the court fees. Without referring to any specific circumstances, it bluntly stated that no ground for exemption, under Articles 46 to 49 of the CCP, existed in the case at hand. The court invited the applicant to pay the GEL 5,000 fee within fourteen days. When it failed to do so, the Supreme Court, in a final decision of 15 March 2004, declared the cassation claim inadmissible. This decision, adopted under the written procedure, was communicated to the applicant on 26 April 2004. 28. According to the applicant, its inability to receive from Dinamo FC proper indemnification in return for the footballer's transfer, as well as the high costs which it had incurred in the domestic and international proceedings against Dinamo FC and the GFF, constituted the main reasons for its financial collapse. The auditor's report of 15 March 2005 confirmed the applicant's insolvency and the resulting cessation of its activities in the sphere of football. The report stated that, due to the inability to pay the participation fee, the applicant had been excluded from the national football championship since 2002. Among other outstanding debts, the report noted arrears of interest on a loan which the applicant had obtained in order to pay the court fee of GEL 5,000 for the proceedings before the Regional Court (paragraph 24 above). | This case concerned large sums of money linked to the transfer of a footballer between Georgian and foreign clubs. In that case the applicant club was refused exemption from the payment of court fees by the Supreme Court; as a result, its appeal was not examined. The applicant club complained in particular that it had been denied access to a court. |
539 | Police brutality | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1994 and lives in Bidovce. He is of Romani origin. A. Arrest and police custody 6. At about 7 p.m. on 1 8 December 2010 a twelve-year old boy was mugged and his mobile phone taken from him while he was walking along a road between two villages in south ‑ eastern Slovakia. The perpetrators of the mugging were not known to him. The boy and his parents subsequently reported the incident to the local county police. 7. In response, a police unit consisting of three officers searched the area surrounding the crime scene with the boy and his father. At around 8 p. m. they spotted the applicant, who was then aged sixteen, another minor and a third person, all of whom the boy identified as his assailants. 8. The applicant and his two associates, both of whom were also of Romani origin, were arrested. The parties dispute the circumstances of the arrest. The Government relied on entries in the county police logbook for the relevant night and on a note on the record drawn up by the county police dated 18 December 2010 indicating that the suspects had resisted arrest and attempted to flee. They had consequently had to be subdued, no injuries had been sustained, and the use of force by the arresting officers had been found lawful. That material referred to the measures of restraint used against the applicant and the other two suspects as “self-defence mechanisms for holding and grabbing ”. The applicant, for his part, denied that he had shown any resistance or that the police had used any measures of restraint. 9. The applicant and his companions were then taken to the county police station. According to the results of a breathalyser test carried out there, all three detainees had consumed alcohol and the applicant was in a state of slight inebriation. 10. The three suspects were kept at the police station and preliminarily questioned ( vyťažení ) by officers from the county police. As to the rooms in which they were kept, these were used as offices, were fitted out with the usual office equipment and were not furnished as detention cells. 11. The applicant ’ s and the Government ’ s accounts in relation to further details vary as follows. According to the applicant, during the probing, the officers subjected him to psychological pressure and physical violence with a view to obtaining his confession. In particular, he was slapped and punched in the head, was not allowed to sit or lie down or to rest during the entire length of his detention, and was not provided any food or drink. In the Government ’ s submission, there had been no ill-treatment, the three suspects were kept in separate rooms and were checked on at fifteen ‑ minute intervals. The applicant was allowed to use the toilet, which was equipped with a washbasin with drinkable tap water. 12. The Public Prosecution Service (“the PPS”) was informed of the arrest and, at 11.10 p. m. the case file, along with the responsibility for the detention of the young men, was passed on to an investigator from the local district police. 13. Meanwhile or in parallel, the victim was examined by a doctor, his mother orally submitted a criminal complaint, and the crime scene was inspected. B. Charge 14. In the early hours of 19 December 2010 the applicant and his two co-detainees were charged with robbery and the investigator decided to place them in a facility for provisional detention. However, the decision was not implemented as no room was available in such a facility within a reasonable distance. Subsequently, a legal -aid lawyer was appointed for the applicant and a copy of the document containing the charges was sent to, inter alia, the child protection services. 15. Between 12 noon and 1 p. m. on 19 December 2010 the applicant was brought before the investigator, who interviewed him in the presence of his mother and the lawyer. No mention was made of any ill ‑ treatment. 16. At 1.5 0 p. m. the applicant was placed in a provisional detention cell as documented by a protocol, which cites him as submitting in response to a pre-printed question that had not been subjected to any violence. The relevant documentation further contains a hand-written note with the applicant ’ s signature indicating that “[he] ha [d] received dinner”. According to the Government, the cell was equipped with, inter alia, a washbasin and drinkable water from the tap. 17. At 6.05 p. m. the applicant and his co-detainees were released, and the police took them home. 18. When the applicant ’ s mother appeared before the investigator on 20 December 2010 she decided to avail herself of her right not to give evidence, making no mention of any ill-treatment. 19. On 21 December 2010, acting through the intermediary of his lawyer, the applicant lodged an interlocutory appeal against the charge, arguing that he himself had not been involved in the mugging, which had been perpetrated by his minor associate alone and to which the latter had confessed. There was no mention of any ill-treatment. 20. On 12 January 2010 the charge against the applicant was withdrawn. C. Criminal complaint of ill- treatment in detention 21. In the applicant ’ s submission, meanwhile, in the days that followed his release, his mother presented herself at the county police station and contacted the Ministry of the Interior by telephone to complain about the treatment to which her son had been subjected while detained. According to the applicant, her complaint was not registered and she was orally advised to submit it in written form. According to the Government, however, the heads of the county police and the district police, who were the only persons entitled to receive complaints in matters such as those obtaining in the present case, did not receive any complaint from the applicant ’ s mother. Similarly, there was no mention of a visit or any communication from her in the records of visits and telephone calls received by the county police or in the operational logbook of the district police. 22. On 5 January 2011 the applicant and his associates lodged a written criminal complaint with the Ministry of the Interior. They directed it against the officers of the county police who had been on duty between 7 p. m. on 18 December 2010 and 10 a. m. on 19 December 2010, suggesting that the offence of abuse of authority of a public official could have been committed. In particular, they submitted that, while in police custody, each of them separately had been pressured to confess on the pretext that the others had already confessed. The applicant also submitted that he had been subjected to slapping in the face and on the head until he had confessed. The persons inflicting that treatment had worn uniforms. Although the applicant did not know their identity, he would certainly recognise them. Another person had been present, not wearing a uniform, presumably a relative of the boy who had been robbed. Throughout the entire time in police custody, the applicant had had to stand, without being allowed to sit or lie down, and he had not been given any food or water. Moreover, in the applicant ’ s submission, his legal guardians had not been notified of his custody, let alone been present. 23. The applicant submitted a medical report dated 19 December 2010. The doctor who issued the report observed that the applicant had “allege[d] that he had been beaten by police officers the day before” and “had received a slap on the right half of a cheek”. In reply to a printed question about whether the injury could have been sustained as alleged, the reply “yes” was given. The doctor further observed that there was no haematoma and that the cheek was sensitive and slightly swollen. He diagnosed “a bruised cheek on the left ” and classified the injury as slight, with recovery time below seven days. D. Determination of the criminal complaint 24. The criminal complaint was sent to the local Control and Inspection Section (“ the CIS”) of the Ministry of the Interior for examination. Subsequently, the part of the complaint concerning the failure to notify the applicant ’ s legal guardians of his arrest and detention, to provide him with food and water during his detention, and to hear him immediately after his arrest was sent to the district police (see paragraph 2 9 below). 25. In examining the complaint concerning the alleged physical mistreatment, the CIS interviewed the applicant and his associates, as well as the investigator and two officers under suspicion. In addition, it examined the case file concerning the investigation into the alleged robbery and other documentary material. 26. On 9 March 2011 the CIS dismissed the complaint. In doing so it observed that the applicant had not raised any complaint of ill-treatment during his interview with the investigator on 19 December 2010, and held that this could not be explained by his proclaimed fear of the officers involved since, in that interview, the applicant had been assisted by his mother and lawyer (see paragraph 1 5 above). The CIS observed that in his oral depositions, the applicant had claimed that he had been beaten at the county police station for about three hours and that he had sustained bruises and a swollen cheek. However, those allegations of sustained beating and its consequences did not correspond to the findings in the doctor ’ s report of 19 December 2010, which only attest to an allegation of having received a slap on the right cheek and to having a swollen cheek, but no haematoma. The CIS also noted that in the investigation file concerning the alleged robbery there was no indication of any ill-treatment. It observed that the applicant ’ s injury could have been inflicted in the course of his arrest, which he had resisted and which accordingly had had to be carried out forcefully. In addition, the CIS observed that the police officers in question had not been involved in the investigation of the alleged robbery, but had merely been guarding the applicant. Consequently, they had had no reason to pressure him into confessing. 27. The applicant challenged the decision of 9 March 2011 by lodging an interlocutory appeal with the PPS. He requested twice that a decision by the PPS to dismiss the appeal be reviewed. The applicant argued in particular that he had not resisted his arrest and that, accordingly, no physical force had been used in the course of it. His injury could therefore not be explained as the CIS had done. He had not complained of the ill-treatment before the investigator because nobody had asked him about it and because he had been concerned about possible repercussions. The applicant further argued that the fact that there was no mention of the ill-treatment in the investigation file was irrelevant. In fact, it was logical, because the officers involved would naturally not mention their misconduct and would deny it. That incongruity and contradiction of the arguments had not been examined. According to the applicant, a “racial motive was not excluded” and the treatment to which he had been subjected had been contrary to Article 3 of the Convention. 28. The interlocutory appeal and the requests for review were eventually dismissed by the Office of the Prosecutor General (“the OPG”), which communicated its decision to the applicant in a letter of 29 September 2011. The PPS fully endorsed the findings of CIS, considering as crucial the fact that before the doctor on 19 December 2010 the applicant had only alleged slapping, that the doctor ’ s observations on the applicant ’ s injury did not correspond to the applicant ’ s subsequent allegation of sustained beating, and that the applicant had not raised any ill-treatment allegation with the investigator on 19 December 2010. Without any explanation, the PPS also concluded that there was no indication of any racial motive behind the treatment complained of by the applicant. 29. As to the part of the applicant ’ s criminal complaint concerning the alleged failure to notify his legal guardians of his arrest and detention, to provide him with food and water during his detention, and to hear him immediately after his arrest (see paragraph 2 4 above), the district police informed the applicant in a letter of 8 June 2011, without any explanation at all, that “in the investigation of the given matter, no error had been committed by the investigative organs”. E. Final domestic decision 30. On 2 December 2011 the applicant lodged a complaint, under Article 127 of the Constitution, with the Constitutional Court against the OPG and the Regional Office of the PPS involved in his case. He emphasised that at the time of his arrest he had been a minor, that he had been kept at the police station the whole night without being able to sit or lie down, and without being given any food or water, and that he had been subjected to psychological pressure and physical violence with a view to forcing him to confess. He considered that such treatment had been in breach of his rights under Article 3 of the Convention, as was the ensuing investigation into his complaints on account of its lack of efficiency and independence, as well as the authorities ’ failure to act on their own initiative. The applicant also alleged that the lack of a proper investigation had been aggravated by the lack of an effective remedy and discrimination, contrary to his rights under Articles 13 and 14 of the Convention. On the last point, the applicant argued that there had been many known incidents of police violence against the Roma in the course of arrest and detention in Slovakia, and that his treatment by the police had been influenced by his Romani origin. 31. On 10 April 2012 the Constitutional Court rejected the complaint as manifestly ill-founded. It observed that the applicant had no legal right to have a third person criminally prosecuted, that his right to lodge a criminal complaint merely implied that he had the right “ to have the complaint dealt with by a body authorised to do so ”, and that it had thus been dealt with. It further observed that the applicant had not complained of his alleged ill-treatment before the investigator on 19 December 2010 or in his interlocutory appeal against the charge (see paragraphs 1 5 and 1 9 above). The fact that he had had those means of asserting his rights at his disposal excluded the jurisdiction of the Constitutional Court. It concluded without further explanation that, in the circumstances, neither the proceedings before the PPS nor their decisions could have violated the applicant ’ s rights as identified in his constitutional complaint. The decision was served on the applicant on 25 April 2012. II. INTERNATIONAL MATERIAL 32. Various international material concerning the Situation of Roma in Slovakia at the relevant time has been summarised for example in the Court ’ s judgments in the cases of Mižigárová v. Slovakia (no. 74832/01, §§ 57-63, 14 December 2010); V.C. v. Slovakia (no. 18968/07, §§ 78-84 and 146-49, 8 November 2011); and Koky and Others v. Slovakia (no. 13624/03, § 239, 12 June 2012). Further relevant material 1. The European Commission against Racism and Intolerance (ECRI): Report (Fifth Monitoring Cycle) of 19 June 2014 on Slovakia (CRI[2014]37) 33. The report contains the following passages: “ ... 3. Racist and homo/transphobic violence - Data 69. Police ill-treatment (and generally speaking abusive behaviour) towards Roma have also been reported by the media, civil society and international organisations (IOs)... ... - Authorities ’ response ... 77. ... The most famous example with extensive media coverage concerns a group of Roma boys who were allegedly subjected to degrading treatment while detained by police officers in Košice in March 2009. Although the racist motivation of the crime was included in the indictment of 10 policemen in spring 2010 to date the case is still pending. More recently, in June 2013, NGOs and the media reported repressive police action in a village in the Kosice region, Moldava nad Bodvou, which allegedly resulted in injuries to over 30 individuals, including children. Only six months after the incident did the General Prosecutor ’ s office order an investigation into the police action which is still pending. ... 79. ECRI reiterates its recommendation that ... the Slovak authorities provide for a body which is independent of the police and prosecution authorities, entrusted with the investigation of alleged cases of racial discrimination and misconduct by the police. 80. ECRI also strongly reiterates its recommendation that the Slovak authorities ensure effective investigations into allegations of racial discrimination or misconduct by the police and ensure as necessary that the perpetrators of these types of acts are adequately punished. ... ” 2. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment: Report of 25 November 2014 on its visit to Slovakia in 2013 (CPT/Inf [2014] 29) 34. The report contains, inter alia, the following: “ 11. ... the [CPT] delegation did receive a number of consistent and credible allegations of physical ill ‑ treatment by police officers (including from several detained juveniles). Most of the allegations concerned the time period immediately after apprehension (even when the person concerned allegedly was not resisting apprehension or after he/she had been brought under control) and the period before and during police questioning. The alleged ill-treatment mostly consisted of slaps, punches and kicks to various parts of the body. In one case, the head of a detained juvenile was allegedly repeatedly banged against a wall by a police officer during questioning, apparently in an attempt to extract a confession. Another person met by the delegation stated that during his apprehension on the street, after having been brought under control by the police, he had been slapped in the face and kicked by a uniformed police officer... ... 16. ... According to the information available, on 19 June 2013, some 60 police officers entered the settlement and individual houses, officially in an attempt to search for wanted individuals and stolen goods. [ ... ] Following the operation, 15 persons were apprehended and escorted to the Moldava nad Bodvou sub-district police department where they spent several hours. Allegedly, in the course of the actual apprehension and subsequent detention, several individuals were ill-treated by the police .... 17. In its report on the 2009 visit, the CPT referred to the incident of 21 March 2009, concerning the case of six Roma juveniles who had allegedly been forced, under threat of physical assault by police officers, to strip naked in a police station in Košice and to slap each other. Furthermore, they had allegedly been subjected to intimidation by police dogs. The Committee is concerned to note that, according to the information provided by the Slovak authorities during the 2013 visit, i.e. four-and ‑ a-half years after the alleged incident, the criminal case was still pending before the first instance court .... ... ” 3. UN Committee against Torture (CAT): Concluding Observations on the Third Periodic Report of Slovakia (2007-2013) of 8 September 2015 (CAT/C/SVK/CO/3) 35. In paragraph 11 of its report, the Committee expressed its concern : “ ... (d) That no charges were brought against police officers who participated in the raid on 19 June 2013 on the Roma settlement of Moldava nad Bodvou in eastern Slovakia, which resulted in the apprehension of 15 persons, a number of whom reportedly were seriously ill-treated by the police during their apprehension and subsequent detention; (e) That all 10 policemen who physically abused and inflicted degrading treatment on six Roma juveniles in the city of Košice on 21 March 2009 were acquitted in the first instance judgement by the Košice II District Court on 27 February 2015, since the court refused to admit the video recording of the incriminating act as a legally obtained piece of evidence. ... ” | This case concerned an allegation by a 16-year old Roma that he had been slapped in the face when being questioned by the police about a mugging and that the related investigation was inadequate. |
197 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 11. The applicant was born on 2 February 1984 and lives in İzmir. A. The applicant ’ s arrest and detention 12. On 29 May 2001 at about 10.15 p.m., the applicant was taken into custody by police officers from the anti- terrorism branch of the İzmir Security Directorate on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK (the Workers ’ Party of Kurdistan). The applicant was also accused of hanging an illegal banner from a bridge in Bornova on 26 April 2001. 13. At about 12.30 a.m. on 30 May 2001 the applicant was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body. 14. Subsequently, at about 1 a.m., the applicant was interrogated at the anti- terrorism branch in the absence of a lawyer. According to a form explaining arrested persons ’ rights which the applicant had signed, he had been reminded of the charges against him and of his right to remain silent. In his statement, the applicant admitted his involvement in the youth branch of HADEP ( Halkın Demokrasi Partisi – the People ’ s Democracy Party). He gave the names of several persons who worked for the youth branch of the Bornova District Office. He explained that he was the assistant youth press and publications officer and was also responsible for the Osmangazi neighbourhood. He further stated that it had been part of his job to assign duties to other members of the youth branch. He admitted that he had participated in the demonstration on 29 May 2001 organised by HADEP in support of the imprisoned leader of the PKK. He said that there had been about sixty demonstrators present and that the group had shouted slogans in support of Öcalan and the PKK. He had been arrested on the spot. He also admitted that he had written “Long live leader Apo ” on a banner which had been hung from a bridge on 26 April 2001. The police took samples of the applicant ’ s handwriting and sent it to the police laboratory for examination. 15. On 1 June 2001 the İzmir Criminal Police Laboratory issued a report after comparing the applicant ’ s handwriting to that on the banner. It concluded that although certain characteristics of the applicant ’ s handwriting bore similarities to the handwriting on the banner, it could not be established whether or not the writing on the banner was in fact his. 16. At 11.45 p.m. on 1 June 2001 the applicant was again examined by a doctor, who stated that there were no traces of ill-treatment on his body. 17. On the same day, the applicant was brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor, he explained that he was not a member of any political party, but had taken part in certain activities of HADEP. He denied fabricating an illegal banner or participating in the demonstration on 29 May 2001. He stated that he was in the Doğanlar neighbourhood to visit a friend when he was arrested by the police. The applicant also made a statement to the investigating judge, in which he retracted his statement to the police, alleging that it had been extracted under duress. He claimed that he had been beaten and insulted while in police custody. He again denied engaging in any illegal activity and explained that on 29 May 2001 he had gone to the Doğanlar neighbourhood to visit a friend and had not been part of the group shouting slogans. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence of which he was accused and the state of the evidence. The applicant was then allowed to have access to a lawyer. B. The trial 18. On 11 July 2001 the public prosecutor at the İzmir State Security Court filed an indictment with that court accusing the applicant and eight other accused of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713). 19. On 16 July 2001 the State Security Court held a preparatory hearing. It decided that the applicant ’ s detention on remand should be continued and that the accused be invited to prepare their defence submissions. 20. On 28 August 2001 the State Security Court held its first hearing, in the presence of the applicant and his lawyer. It heard evidence from the applicant in person, who denied the charges against him. The applicant also rejected the police statement, alleging that it had been extracted from him under duress. He explained that while he was in custody, police officers had ordered him to copy the words from a banner. He also stated that he had witnessed the events that had taken place on 29 May 2001; however, he had not taken part in the demonstration as alleged. Instead, he had been in the neighbourhood to visit a friend named Özcan. He also denied hanging an illegal banner from a bridge on 26 April 2001. 21. At the next hearing, which was held on 25 October 2001, the applicant and his lawyer were both present. The court also heard from other accused persons, all of whom denied having participated in the illegal demonstration on 29 May 2001 and retracted statements they had made previously. The prosecution then called for the applicant to be sentenced pursuant to Article 169 of the Criminal Code and the applicant ’ s lawyer requested time to submit the applicant ’ s defence submissions. 22. On 5 December 2001 the applicant made his defence submissions. He denied the charges against him and requested his release. On the same day, the İzmir State Security Court delivered its judgment. It acquitted five of the accused and convicted the applicant and three other accused as charged. It sentenced the applicant to four years and six months ’ imprisonment, which was reduced to two and a half years as the applicant had been a minor at the time of the offence. 23. In convicting the applicant, the State Security Court had regard to the applicant ’ s statements to the police, the public prosecutor and the investigating judge respectively. It also took into consideration his co-defendants ’ evidence before the public prosecutor that the applicant had urged them to participate in the demonstration of 29 May 2001. The court noted that the co-defendants had also given evidence that the applicant had been in charge of organising the demonstration. It further took note of the expert report comparing the applicant ’ s handwriting to that on the banner and of the fact that, according to the police report on the arrest, the applicant had been among the demonstrators. It concluded: “ ... in view of these material facts, the court does not accept the applicant ’ s denial and finds that his confession to the police is substantiated.” C. The appeal 24. On 2 January 2002 the applicant ’ s lawyer appealed against the judgment of the İzmir State Security Court. In her notice of appeal, she alleged a breach of Articles 5 and 6 of the Convention, arguing that the proceedings before the first-instance court had been unfair and that the court had failed to assess the evidence properly. 25. On 27 March 2002 the Principal Public Prosecutor at the Court of Cassation lodged a written opinion with the Ninth Division of the Court of Cassation in which he submitted that the Division should uphold the judgment of the İzmir State Security Court. This opinion was not served on the applicant or his representative. 26. On 10 June 2002 the Ninth Division of the Court of Cassation, upholding the İzmir State Security Court ’ s reasoning and assessment of the evidence, dismissed the applicant ’ s appeal. | Charged with, and subsequently convicted of, participation in an unauthorised demonstration in support of the PKK (the Workers’ Party of Kurdistan, an illegal organisation), the applicant, in the absence of a lawyer, made a statement while in police custody admitting his guilt. |
288 | (Suspected) terrorists | 2. The applicant was born in 1970. He is currently serving a seventeen-year sentence of imprisonment for membership of a terrorist group and possession of explosives. The applicant was represented by Mr Z. Reizabal Larrañaga, a lawyer practising in San Sebastian and by Mr O. Peter, a lawyer practising in Switzerland. 3. The Government were represented by their Agent, Mr R.A. León Cavero, State Attorney. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. Within the context of an initial anti-terrorist investigation carried out by investigating judge no. 2 of the Audiencia Nacional, the applicant was arrested in France under a European arrest warrant and handed over to Spain, where he was remanded in custody for allegedly, along with other individuals, belonging to the terrorist group ETA. On 8 April 2010, the applicant, assisted by a lawyer chosen by him, after denying his alleged membership of ETA, waived his right not to testify before the investigating judge. 6. On 20 April 2010 the applicant was released on condition that he appear before the judge dealing with the case once a week. 7. On 20 June 2010, at the Public Prosecutor’s Office’s request, the pre-trial phase was discontinued for lack of evidence against the applicant. Other investigations against ETA continued. Within the framework of new inquiries, further evidence against the applicant was found, which led to a second set of proceedings. 8. On 28 September 2010, within the framework of the second set of proceedings, the Guardia Civil requested that investigating judge no. 2 of the Audiencia Nacional authorise eight entries to and searches of properties used by the cell of ETA to which the applicant allegedly belonged. The requested entries and searches were mainly aimed at locating two explosives depots, which investigations had revealed to have been organised and used by the applicant. Various sources of information had indicated that the applicant was a member of ETA and that he was storing a large number of explosives and firearms that were in a fit condition to be used. 9. On 29 September 2010, at 9:45 a.m., the Guardia Civil arrested the applicant. On 30 September 2010, investigating judge no. 2 of the Audiencia Nacional authorised his detention incommunicado in order to pre-empt the potential frustration of the ongoing investigation, which was primarily aimed at the location of explosives. Simultaneously, a search was carried out at his home, where computer equipment was seized. The detention incommunicado was ordered and supervised by a judge within the framework of a judicial procedure. 10. Once the detention incommunicado had been authorised by the investigating judge, the applicant was assigned legal aid. He was informed of his rights as a detainee – including his right not to testify against himself and his right to remain silent; however because his detention was incommunicado in nature, he was neither authorised to choose a lawyer nor to meet in private with the lawyer that had been assigned to him by way of State-funded legal aid (“legal-aid representative”) prior to his being interviewed by the police. During his detention incommunicado, the applicant gave two statements to the police, both in the presence of that legal-aid representative. 11. On 30 September 2010, the investigating judge ordered the extension of the applicant’s detention for a period of forty-eight hours in view of the nature of the offences under investigation and the large amount of computer material found during the search of the applicant’s home. 12. On 1 October 2010, at 7:23 a.m., in his first statement to the Guardia Civil, the applicant stated that he had “cooperated” with ETA and that his activities during his participation in that group’s terrorist activities had included acts such as attempted kidnapping, verifying details regarding a certain businessman in order that he could be assassinated, and providing information regarding certain police officers serving in the Basque Autonomous Community so that an attack could be planned against them; he also indicated a storage room where he kept explosives. The applicant’s legal-aid representative was present during the interview, and both the legal-aid representative and the applicant signed the applicant’s statement to the Guardia Civil and a document attesting to the fact that the applicant had been informed of his rights as a detainee. Later, the applicant’s legal-aid representative repeatedly tried to make contact with his client. The Guardia Civil informed the legal-aid representative that contact with his client was legally restricted because the applicant was being detained incommunicado. After the applicant had given his statement, a search was carried out of a storage space (indicated by the applicant) in the applicant’s home used to hide explosives, and a large amount of explosive material and computer equipment relating to the activities of ETA was found. 13. On 3 October 2010, at 3.13 a.m., the Guardia Civil took a new statement from the applicant, as there were strong suspicions that he knew of other sites at which was stored explosive material that was in a state to be used. Again, after the agents of the Guardia Civil had read out his rights – including his right to remain silent – the applicant made a statement informing them of a hidden place at his home where he still kept a firearm, bullets, various USB keys containing several training handbooks on terrorism, and some false licence plates. He made that statement despite the opposition of his legal-aid representative, who was present and indicated his opposition to the new interview taking place. Subsequently, at the applicant’s residence, the Guardia Civil found all the equipment that had been listed by the applicant in his latter statement. 14. During his detention incommunicado, the applicant was examined daily by a forensic doctor, to whom he reported that he had not suffered mistreatment by the Guardia Civil at any time, although he did claim that the Guardia Civil had threatened to arrest his girlfriend if he did not cooperate with them. The doctor submitted a medical report each day to the investigating judge in charge of the case. 15. On 4 October 2010 the applicant was brought before the investigating judge, to whom he indicated that his statements to the Guardia Civil had been obtained when being held incommunicado for five days and that for this reason he had made self-incriminatory statements. On the same day, the applicant’s detention incommunicado was lifted, and he was able to appoint a lawyer of his own choosing. 16. On 16 April 2013 the Audiencia Nacional convicted the applicant of being a member of a terrorist group and of possession of explosives. He was sentenced to seventeen years’ imprisonment. The conviction was based essentially on: material found on the seized computer material linking him to the terrorist group; the explosive material found in both his home and other places that had been indicated by him; incriminating statements given by the applicant’s co-defendants; statements given by witnesses; and the fact that the applicant had remained silent in response to questions from the prosecution. With reference to reports by the forensic doctor, the Audiencia Nacional ruled out the possibility that the applicant had been mistreated. It deemed that he had given his statements freely and voluntarily (see paragraphs 12 and 13 above), without coercion or pressure of any kind. 17. According to the judgment, it had been proved that the applicant had concealed the following effects, tools and instruments: “The following material was found in the search carried out on 1 October 2010 in a storage room used by the defendant: Six USB keys, detonators and three flap-type devices intended to activate explosive devices – [all] in perfect working order; a device intended to activate car bombs; fifty-six kilograms of potassium chlorate and 7 kg of sulphur; ammunition and pistol holsters, forty-six pistol cartridges, twenty detonator fuses; a CD, with a handbook [produced by] the terrorist group; five spent cartridges from the gun that had killed two police officers; seven spent cartridges from a gun that had killed two people; a reddish plastic with wrapping tape and rubber gloves, containing traces of the following explosive substances: ammonium nitrate, nitroglycerine and dinitrotoluene. ... During the search carried out on 3 October 2010 at the applicant’s home, the following effects, tools and instrument were found: a gun; fifty cartridges; twenty car registration plates; two detonators intended to activate [explosive] devices; a [detonator] timer; ... Among the seized computer files were found: several [copies of] handbooks [containing] instructions [on how to behave] in the event of arrest; training videos on the use of weapons, explosives and security measures; information regarding police officers and politicians; and [plans for] placing a ‘van bomb’ by a hotel.” Regarding the fact that the applicant’s legal-aid representative was not allowed, despite repeated attempts on his part, to communicate with his client, the first-instance court heard the legal-aid representative as a witness at the trial. 18. Following an appeal by the applicant, on 18 March 2014 the judgment of the Audiencia Nacional was upheld by the Supreme Court. It concluded that despite the applicant’s assertion that the Guardia Civil had threatened him with the arrest of his girlfriend, there was no evidence of any torture – either physical or psychological. With regard to the evidence that had been found in the applicant’s possession, the Supreme Court concluded that the large amount of material found in his possession, as well as the spent gun cartridges, revealed that not only had he stored explosives, but he had also been part of ETA. 19. On 7 May 2014 the applicant lodged an amparo appeal with the Constitutional Court. He argued that his right to be assisted by a lawyer of his own choosing had been violated (Article 24 § 2 of the Constitution). The amparo appeal was declared inadmissible on 7 November 2014 because the applicant had failed to “specifically and sufficiently justify its constitutional relevance”. | This case concerned the pre-trial detention incommunicado of the applicant, who was alleged to be part of the terrorist group ETA, and the fact that he was questioned by the police without a lawyer present, making self-incriminating statements. Those statements had formed part of the reasons for his conviction for terrorism offences. |
247 | The definition of idem | 2. The applicant was born in 1966. He was represented before the Court by Mr G. Marjanović, a lawyer practising in Rijeka. 3. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 4. At around 11.20 a.m. on 13 October 2004 the applicant, who was driving over the speed limit, caused a road accident in Rijeka in which a person died. 5. On 25 November 2004 the Rijeka police requested that minor-offence proceedings be brought against the applicant in the Rijeka Minor Offences Court ( Prekršajni sud u Rijeci ). On 31 July 2006 the court issued a penalty notice ( prekršajni nalog ) finding the applicant guilty. In so far as relevant, the court stated as follows. “[O]n 13 October 2004 at 11.20 a.m. [the applicant] was driving a vehicle ... in the settlement of Draga Brig from the direction of Sv. Kuzan towards Rijeka. [The applicant] reached house no. 73/9 on a section of the road with no pavement, where the road is narrow and visibility reduced owing to the high walls and hedges of the courtyards of the houses alongside and speed is limited to 40 kph by a road sign. The length of the skid marks, which measured 29 metres, helped establish that the speed [reached] had been at least 80 kph. This amounted to exceeding the speed limit by 40 kph at the moment when he spotted a pedestrian, S.M., stepping out onto the road from the courtyard of house no. 73/9. [The applicant] lost control of the vehicle and with its front right side hit the pedestrian and continued to move uncontrollably. After a further 12.5 metres the front right side of the vehicle hit a stone wall by the right edge of the road, after which [the applicant] left the scene of the accident without stopping, or coming to the aid of the victim, or informing the police of the accident or waiting for the arrival of the police. A later inspection of the vehicle showed that it was technically defective in that the tread on the front tyres was worn to below the .TWI [tread wear indicator] recommended by the manufacturer. Thus: 1. by driving [a vehicle] in a settlement while exceeding the speed limit by 40 kph, which is contrary to section 53(1) of the Road Traffic Safety Act, [the applicant] committed a minor offence punishable under section 53(5) of the same Act; 2. by driving a vehicle [some of] whose equipment was faulty and as a driver in [road] traffic who was acting contrary to section 239(1) of the Road Traffic Safety Act, [the applicant] committed a minor offence punishable under section 239(9) of the same Act; 3. by acting contrary to section 176(1)(3) of the Road Traffic Safety Act because he did not stay at the scene of the accident or inform the nearest police station or wait for the arrival of a person authorised to carry out an on-site inspection, [the applicant] committed a minor offence punishable under section 176(3) of the above-mentioned Act.” The applicant was fined 700 Croatian kunas (HRK – approximately 95 euros (EUR)) for exceeding the speed limit, HRK 400 (approximately EUR 55) for driving a defective car and HRK 3,000 (approximately EUR 400) for leaving the scene without informing the police. A six-month driving ban was imposed on him and he had five points added to his driving licence. 6. No appeal having been lodged against the Rijeka Minor Offences Court’s penalty notice, that decision became final on 31 July 2006. 7. In the meantime, having questioned the applicant and several other witnesses, on 9 June 2005 the Rijeka State Attorney’s Office indicted the applicant on charges under Article 272 of the Criminal Code of causing a fatal road accident on 13 October 2004. The relevant part of the bill of indictment ( optužnica ) reads as follows: “[O]n 13 October 2004 at 11.20 a.m. in the settlement of Draga Brig at house no. 73/9 [the applicant] drove a vehicle ... from the direction of Sveti Kuzma towards Rijeka, ... agreeing to jeopardise the safety of other road users, contrary to section 53(1) of the Road Traffic Safety Act, at a speed of at least 72 kph despite the speed limit being set at 40 kph... lost control of the vehicle and with its front right side hit a pedestrian... S.M., causing her injuries... [and ultimately] death; so that, by violating the regulations on road-traffic safety, he jeopardised traffic causing a car accident in which one person died, by which he committed a criminal offence against the general safety of persons and property and road-traffic safety by causing a road accident under Article 272 §§ 1 and 3 of the Criminal Code...” 8. On 21 March 2011 the Rijeka Municipal Court ( Općinski sud u Rijeci ) found the applicant guilty as charged and sentenced him to one year and six months’ imprisonment. The relevant part of the court judgment reads as follows. “[O]n 13 October 2004 at about 11.20 a.m. in the settlement of Draga Brig at house no. 73/9 [the applicant] drove a vehicle ... from the direction of Sveti Kuzma towards Rijeka, at a speed of 69.6 kph, contrary to section 53(1) of the Road Traffic Safety Act, despite the speed limit being set at 40 kph as indicated by a road sign, recklessly thinking that such driving would not put at risk the safety of other road users. It was because of this that, on reaching house no. 73/9 on a section of the road without a pavement, and while braking, he lost control of the vehicle and with its front right side hit a pedestrian, S.M., who had stepped out onto the road from a courtyard ... Owing to this S.M. sustained numerous bodily injuries ... which were classified as particularly serious and resulted in [S.M.’s] death. Thus his reckless conduct, which violated the regulations on road-traffic safety, put [road users] at such a risk that he caused a road accident in which a person died, by which he committed a criminal offence against the general safety of persons and property and road-traffic safety by causing a road accident under Article 272 §§ 1, 2 and 4 of the Criminal Code.... Furthermore, [the court] inspected documents in the case file... It also inspected the case file of the Rijeka Minor Offences Court in case no. P-678/05...” 9. On 5 September 2012 the Rijeka County Court ( Županijski sud u Rijeci ) upheld the judgment at first instance. In reply to the applicant’s ne bis in idem complaint, the second-instance court held as follows: “[The applicant] challenges the judgment at first instance, claiming that ... the case at hand has been previously adjudicated, since the penalty imposed for the criminal act stems from a judgment of the Minor Offences Court ... However, the breach of traffic regulations in question, which resulted in causing danger in traffic and ultimately a person’s death, is not classified as a minor offence, so [the applicant] could not have been charged in substance with the same facts. The case concerns a different subject of protection from an offence and a different degree of seriousness of a violation, so the [applicant’s] argument that the matter has already been adjudicated cannot be accepted ...” 10. On 29 January 2013 the Supreme Court ( Vrhovni sud Republike Hrvatske ) rejected the applicant’s request for extraordinary review of a final judgment ( zahtjev za izvanredno preispitivanje pravomocne presude ). In so far as relevant, the Supreme Court held as follows: “[S]ince the matter concerns a different subject of protection from an offence and a different degree of seriousness of the violation, it should be emphasised that the case in question does not concern a matter which has already been adjudicated ...” 11. On 29 May 2013 the Constitutional Court ( Ustavni sud Republike Hrvatske ) declared a constitutional complaint brought by the applicant inadmissible as manifestly ill-founded. The Constitutional Court’s decision was served on the applicant’s representative on 13 June 2013. | This case concerned the applicant’s complaint that he had been tried and punished twice for the same driving offence. In particular, he had first been convicted in minor offence proceedings for speeding and later on in criminal proceedings for causing a fatal road accident. He was fined in the first set of proceedings and given a prison sentence in the second. |
580 | Expulsion or extradition cases | I. Particular circumstances of the case A. The applicant 6. The applicant was born in St Kitts and appears to have lived there most of his life. He is one of seven children. One sister and one brother moved to the United States in the 1970s and the rest of the family appears to have followed at unspecified dates. The applicant visited the United States in 1989 to try to join his family. During his stay there he was arrested on 5 September 1991 for possession of cocaine and subsequently sentenced to a three-year term of imprisonment. After one year, he was paroled for good behaviour and deported on 8 January 1993 to St Kitts. B. The applicant ’ s arrival in the United Kingdom and subsequent imprisonment 7. The applicant arrived at Gatwick Airport, London, on 21 January 1993 and sought leave to enter the United Kingdom for two weeks as a visitor. He was found at the airport terminal to be in possession of a substantial quantity of cocaine with a street value of about 120,000 pounds sterling (GBP). The immigration officer refused him leave to enter on the ground that his exclusion was conducive to the public good and gave him notice that he would be removed to St Kitts within a matter of days. However, after being arrested and charged, the applicant was remanded in custody and subsequently prosecuted for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs of class A. He pleaded guilty at Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to six years ’ imprisonment. He apparently behaved well while in H.M. Prison Wayland and was released on licence on 24 January 1996. He was placed in immigration detention pending his removal to St Kitts. Bail was granted by an adjudicator on 31 October 1996 after the Commission ’ s report had been made public. C. Diagnosis of AIDS 8. In August 1994, while serving his prison sentence, the applicant suffered an attack of pneumocystis carinii pneumonia ("PCP") and was diagnosed as HIV (human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome (AIDS). The infection appears to have occurred some time before his arrival in the United Kingdom. 9. On 3 March 1995, the applicant was granted a period of compassionate leave to be with his mother whose air fare to the United Kingdom to visit him had been covered by charitable donations. 10. On 20 January 1996, immediately prior to his release on licence, the immigration authorities gave directions for the applicant ’ s removal to St Kitts. D. The applicant ’ s request to remain in the United Kingdom 11. By letter dated 23 January 1996, the applicant ’ s solicitors requested that the Secretary of State grant the applicant leave to remain on compassionate grounds since his removal to St Kitts would entail the loss of the medical treatment which he was currently receiving, thereby shortening his life expectancy (see paragraphs 13 and 14 below). This request was refused on 25 January 1996 by the Chief Immigration Officer. In his letter of refusal addressed to the applicant ’ s solicitors the Chief Immigration Officer stated: "In reaching this decision full account was taken of paragraph 4 of the Immigration and Nationality Department B Division Instructions regarding AIDS and HIV-positive cases. You will be aware that paragraph 4 of this instruction which relates to persons whose applications are for leave to enter the United Kingdom states [see paragraph 27 of the judgment below]... While we are saddened to learn of Mr D[...] ’ s medical circumstances we do not accept, in line with Departmental Policy, that it is right generally or in the individual circumstances of this case, to allow an AIDS sufferer to remain here exceptionally when, as here, treatment in this country is carried out at public expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions ..." E. Judicial review proceedings 12. On 2 February 1996, the applicant applied unsuccessfully to the High Court for leave to apply for judicial review of the decision to refuse him leave to enter. On 15 February 1996, the Court of Appeal dismissed his renewed application. It found that section 3 of the Immigration Act 1971 drew a distinction between leave to enter and leave to remain. It held that the Chief Immigration Officer had correctly treated Mr D. ’ s application as an application for leave to enter and was not required to take into account paragraph 5 of the Home Office guidelines which applied to applications for leave to remain (see paragraphs 27 and 28 below). As to the applicant ’ s argument that the Home Office acted unreasonably or irrationally in not acceding to the compassionate circumstances of his plea, Sir Iain Glidewell stated in his judgment: "Nobody can but have great sympathy for this applicant in the plight in which he finds himself. If he is to return to St Kitts it seems that he will be unable to work because of his illness. His expectation of life, if the medical evidence is correct, may well be shorter than it would be if he remained under the treatment that he is receiving in the United Kingdom, and in many ways his plight will be great. On the other hand he would not be here if he had not come on a cocaine smuggling expedition in 1993; and if he had not been imprisoned he would have gone back to St Kitts, if he had ever come here at all, long before his AIDS was diagnosed. Taking account of the fact that the Court must give most anxious scrutiny to a decision which involves questions particularly of life expectancy, as this one apparently does, nevertheless I cannot find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all. Putting it the opposite way, it seems to me to be one which was well within the bounds of his discretion, and thus is not one with which the Court can properly interfere." F. Reports on the applicant ’ s medical condition, treatment and prognosis 13. Since August 1995, the applicant ’ s "CD4" cell count has been below 10. He has been in the advanced stages of the illness, suffering from recurrent anaemia, bacterial chest infections, malaise, skin rashes, weight loss and periods of extreme fatigue. 14. By letter dated 15 January 1996, Dr Evans, a consultant doctor, stated: "His current treatment is AZT 250 mgs. b.d. and monthly nebulised pentamidine, he occasionally takes mystatin pastilles and skin emollients. In view of the fact that [the applicant] has now had AIDS for over 18 months and because this is a relentlessly progressive disease his prognosis is extremely poor. In my professional opinion [the applicant ’ s] life expectancy would be substantially shortened if he were to return to St Kitts where there is no medication; it is important that he receives pentamidine treatment against PCP and that he receives prompt anti-microbial therapy for any further infections which he is likely to develop ..." 15. In a medical report provided on 13 June 1996, Professor Pinching, a professor of immunology at a London hospital, stated that the applicant had suffered severe and irreparable damage to his immune system and was extremely vulnerable to a wide range of specific infections and to the development of tumours. The applicant was reaching the end of the average durability of effectiveness of the drug therapy which he was receiving. It was stated that the applicant ’ s prognosis was very poor and limited to eight to twelve months on present therapy. It was estimated that withdrawal of the proven effective therapies and of proper medical care would reduce that prognosis to less than half of what would be otherwise expected. G. Medical facilities in St Kitts 16. By letter dated 20 April 1995, the High Commission for the Eastern Caribbean States informed the doctor treating the applicant in prison that the medical facilities in St Kitts did not have the capacity to provide the medical treatment that he would require. This was in response to a faxed enquiry of the same date by Dr Hewitt, the managing medical officer at H.M. Prison Wayland. By letter of 24 October 1995, Dr Hewitt informed the Home Office of the contents of the letter from the High Commission, which had also been sent to the Parole Unit on 1 May 1995. He stated that the necessary treatment was not available in St Kitts but was widely and freely available in the United Kingdom and requested that due consideration be given to lifting the deportation order in respect of the applicant. By letter dated 1 August 1996, the High Commission for the Eastern Caribbean States confirmed that the position in St Kitts had not changed. 17. By letter dated 5 February 1996, the Antigua and Barbuda Red Cross informed the applicant ’ s representatives that they had consulted their officer on St Kitts who stated that there was no health care providing for drugs treatment of AIDS. Results of enquiries made by the Government of the authorities in St Kitts suggest that there are two hospitals in St Kitts which care for AIDS patients by treating them for opportunistic infections until they are well enough to be discharged, and that an increasing number of AIDS sufferers there live with relatives. H. The applicant ’ s family situation in St Kitts 18. The applicant has no family home or close family in St Kitts other than, according to information provided by the Government, a cousin. His mother, who currently lives in the United States, has declared that her age, bad health and lack of resources prevent her from returning to St Kitts to look after her son if he were to be returned there. She has also stated that she knew of no relatives who would be able to care for him in St Kitts. I. The applicant ’ s situation since the adoption of the Commission ’ s report 19. When granted bail on 31 October 1996 (see paragraph 7 above) the applicant was released to reside in special sheltered accommodation for AIDS patients provided by a charitable organisation working with homeless persons. Accommodation, food and services are provided free of charge to the applicant. He also has the emotional support and assistance of a trained volunteer provided by the Terrence Higgins Trust, the leading charity in the United Kingdom providing practical support, help, counselling and legal and other advice for persons concerned about or having AIDS or HIV infection. 20. In a medical report dated 9 December 1996 Dr J.M. Parkin, a consultant in clinical immunology treating the applicant at a London hospital, noted that he was at an advanced stage of HIV infection and was severely immunosuppressed. His prognosis was poor. The applicant was being given antiretroviral therapy with "D4T" and "3TC" to reduce the risk of opportunistic infection and was continuing to be prescribed pentamidine nebulisers to prevent a recurrence of PCP. Preventative treatment for other opportunistic infections was also foreseen. Dr Parkin noted that the lack of treatment with anti-HIV therapy and preventative measures for opportunistic disease would hasten his death if he were to be returned to St Kitts. 21. The applicant was transferred to an AIDS hospice around the middle of January 1997 for a period of respite care. At the beginning of February there was a sudden deterioration in his condition and he had to be admitted to a hospital on 7 February for examination. At the hearing before the Court on 20 February 1997, it was stated that the applicant ’ s condition was causing concern and that the prognosis was uncertain. According to his counsel, it would appear that the applicant ’ s life was drawing to a close much as the experts had predicted (see paragraph 15 above). | The applicant, who was diagnosed as HIV (human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome (AIDS), maintained that his removal to St Kitts would expose him to inhuman and degrading treatment. |
121 | Domestic violence / abuse | 10. The applicant was born in 1978 and lives in Unterwagram. 11. She married E. in 2003. They had two children, A., born in 2004, and B., born in 2005. The events leading up to the fatal shooting of the applicant’s sonThe first barring and protection order issued against E. and the ensuing proceedings The first barring and protection order issued against E. and the ensuing proceedings The first barring and protection order issued against E. and the ensuing proceedings 12. On 10 July 2010 the applicant called the police because her husband had beaten her. In her statement to the police she alleged that she had problems with her husband and that he had been beating her for years. In the preceding months the situation had worsened because he had a gambling addiction, was heavily in debt and had lost his job. She stated that she had always supported him financially, but had also lost her job and therefore could no longer pay his debts. The police noted that the applicant showed signs of injuries, namely haematomas on her elbow and upper arm, which she stated she had sustained through beatings by her husband. 13. Pursuant to section 38a of the Security Police Act ( Sicherheitspolizeigesetz – see paragraph 48 below), the police handed the applicant a leaflet informing her, among other things, of the possibility of seeking a temporary restraining order ( einstweilige Verfügung ) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. below). 14. When confronted with the allegations by the police, E. stated that he did not have any problems with his wife, but that he had had a fight with his brother the night before and had sustained injuries to his face. There were no indications that E. was in possession of a weapon. A barring and protection order ( Betretungsverbot und Wegweisung zum Schutz vor Gewalt ) in accordance with section 38a of the Security Police Act was issued against E. This order obliged him to stay away from their common apartment as well as from the applicant’s parents’ apartment and the surrounding areas for fourteen days. It appears that E. complied with the order. The police submitted a report to the public prosecutor’s office ( Staatsanwaltschaft ), which brought criminal charges against E. on 20 December 2010. 15. On 10 January 2011 the Graz Regional Criminal Court ( Landesgericht für Strafsachen ) convicted E. of bodily harm and making dangerous threats, and sentenced him to three months’ imprisonment, suspended for three years with probation. The applicant refused to testify against E. He was nonetheless found guilty of pushing her against a wall and slapping her, and of threatening his brother and his nephew. The second barring and protection order issued against E. and the ensuing proceedings 16. On Tuesday 22 May 2012 the applicant, accompanied by her counsellor from the Centre for Protection from Violence ( Gewaltschutzzentrum ), went to the St. Pölten District Court ( Bezirksgericht ) and filed for divorce. In her oral hearing before the judge, which was held at 11.20 a.m., she explained that the reasons for the breakdown of the marriage were her husband’s continuous threats and violence against her throughout their marriage. She indicated that on the preceding Saturday the situation had escalated and she had suffered injuries. She added that she was planning to report him to the police and that she hoped that a barring and protection order would be issued against him. 17. On the same day at 1.05 p.m. the applicant, assisted by her counsellor from the Centre for Protection from Violence, reported her husband to the police for rape and making dangerous threats. She was interviewed by a female police officer who was experienced in handling cases of domestic violence. In her witness statement, the applicant described the following events in detail. 18. According to the applicant, on Saturday 19 May 2012, when the issue of a possible separation came up, the situation with her husband escalated. She arrived home from work that day at around 3 p.m. Her husband sent the children outside to play, because he said that he wanted to talk to her. He asked her what she was going to do, meaning now that he was gambling again. He thought that it was all her fault. He called her a whore and accused her of seeing other men, since she had not slept with him since February 2012. In the course of the ensuing argument E. repeatedly stated that he could not live without her and the children, and that he would take the children to Turkey. He started choking her and, with his hand still on her throat, pushed her onto the couch. He told her that he was a man and she was a woman, so she was obliged to have sex with him. The applicant told him to stop, but he removed the clothes from the lower part of her body and raped her. She said that he did not hold her tightly during the rape, but she did not resist out of fear of being beaten if she did. After the incident she took a shower, put on her clothes and went to the pharmacy to obtain a contraceptive pill because she was afraid of getting pregnant. 19. The applicant stated further that E. had behaved violently towards her from the very beginning of their marriage, and that in 2010 he had been issued with a barring and protection order for two weeks because he had injured her. E. had been convicted of bodily harm in relation to that incident, and of making dangerous threats against his brother and nephew. The applicant explained that since 2010 she had been in regular contact with the local Centre for Protection from Violence. Because her husband had subsequently gone to hospital of his own accord to be treated for his gambling addiction and mental problems, she had forgiven him, refused to testify in the criminal proceedings against him and decided to give him another chance. However, the situation had worsened in February 2012, when E.’s gambling addiction had resumed. The applicant explained that after his stay in hospital in 2010 her husband had told her that if he started to gamble again she could leave him. That was why he had been even more aggressive since February 2012 – he feared that she would take him up on his promise. The applicant stated that since the beginning of March 2012 he had been threatening her on a daily basis, always with the same phrases: “I will kill you”, “I will kill our children in front of you”, “I will hurt you so badly that you will beg me to kill you”, “I will hurt your brother’s children if I am expelled to Turkey” (the applicant’s brother lives in Turkey), and “I will hang myself in front of your parents’ door”. She said that she took these threats very seriously, but that she had not previously reported them because she feared that he would act upon them if she did. 20. The applicant stated that her husband had been beating her regularly, and sometimes slapped the children as well, especially when he came back from the betting shop. For the most part, the children had not sustained any injuries from the slaps in the face; on just one occasion A. had sustained a haematoma on his cheek. She stated that the children were scared of her husband too. She had been thinking about getting a divorce for several months, but she had feared that he would harm her or her children if she did. The applicant added that her husband sometimes took her mobile phone away from her and locked her in their apartment so that she could not leave. She reiterated that she was in great fear of her husband and that she was reporting all this to the police at that stage because she wanted to protect herself and her children. 21. The police took pictures of the injuries the applicant had sustained (haematomas on her throat and scratches on her chin). A medical examination did not detect injuries in her genital area (see paragraph 28 below). 22. In accordance with a standard procedure, an online search concerning E. was made by the police in a central electronic database containing the personal data of offenders, including the reasons for and scope of previous barring and protection orders, temporary restraining orders and temporary injunctions. The police also checked the firearms registry to ascertain whether the husband had a gun at his disposal, and the result was negative. 23. After the applicant had reported the matter to the police, two police officers (one male and one female) took her to the family home, where E. and the children were present. The police officers also spoke to the children, who confirmed that their father beat their mother and had also regularly slapped them. 24. E. accompanied the police officers voluntarily to the police station. Subsequently, at 4 p.m., he was questioned by the police. E. denied the allegations of violence, rape and threatening behaviour. He admitted that he had had sexual intercourse with his wife on 19 May 2012. However, he contended that sexual contact with his wife had always followed a pattern whereby his wife initially refused but then allowed herself to be persuaded. He explained that he had beaten his wife in the past but had ceased doing so three years earlier. 25. On the basis of the reported facts and section 38a of the Security Police Act, the police officers issued a barring and protection order against E. at 5.15 p.m. This order obliged him to leave the family home for two weeks and prohibited him from returning to it or the surrounding areas; it also barred him from the applicant’s parents’ apartment and its surrounding areas. His keys to the family home were taken from him. 26. The applicant was handed a “leaflet for victims of violence”, informing her, among other things, of the possibility of extending the scope of the barring and protection order in time and place by seeking a temporary restraining order ( einstweilige Verfügung ) against her husband under sections 382b and 382e of the Enforcement Act (see paragraphs 54 et seq. below). The applicant was informed in the leaflet that she could turn to the competent District Court for further information on the court proceedings. Moreover, the leaflet stated that a barring order was binding not only for the person posing a threat, but also for the victim, who must not let the person posing a threat back into the apartment, and that the police would check on the observance of the barring order. Lastly, the applicant was informed that her data would be transferred to a Centre for Protection from Violence, and she was provided with contact details of institutions providing counselling for victims of violence. 27. The police report concerning the barring and protection order described the applicant as “tearful and very scared”. E. was described as “mildly agitated” and “cooperative”. Under the heading “indications of an imminent dangerous attack” ( Merkmale für einen bevorstehenden gefährlichen Angriff ) it stated that a rape had been reported, that there was evidence of violence in the form of haematomas, that there had been continuous threats, and that the children had been slapped regularly. Under the heading “indications of an increased risk from the person posing a threat” ( Merkmale für eine erhöhte Gefährlichkeit des Gefährders ), the police noted: (a) known reported/unreported violent acts (not only currently, but also previous incidents); (b) escalation (increase in the occurrence and seriousness of violence); (c) current stress factors (such as unemployment, divorce, separation from partner/children, and so on); and (d) a strong tendency to trivialise/deny violence (violence seen as a legitimate means). 28. In the evening of 22 May 2012, at 6.10 p.m., the police informed the public prosecutor on duty ( Journalstaatsanwalt ) of the situation in a phone call. In a note added to the file, the public prosecutor wrote the following: “The accused is suspected of raping his wife on 19 May 2012, threatening her repeatedly during the marriage and beating her and the children. The wife has pressed charges with the aid of a representative of the Centre for Protection from Violence and a divorce is apparently pending. The accused admits having had sexual relations with his wife, but denies the subjective element of the crime. Sexual relations during the marriage [according to him] took place in such a way that his wife repeatedly ‘played hard to get’. He would then keep touching her until he managed to persuade her to have sexual relations. According to him, this was typical behaviour for Turkish women. She had allegedly been saying for ten years that she did not want to have sex with him, but then had sex nonetheless. Concerning the injuries, the police officer stated that the woman did not have injuries in her genital area, but had abrasions on her chin. The wife stated that when she had told [the accused] that she did not want to have sexual relations, he had choked her. Finally she had ceased her resistance and allowed intercourse to take place. He did not hold her down and did not use violence during the act, and she did not scream. Since March 2012 he had allegedly been threatening on a daily basis to kill her. [The person posing a threat] was issued with a barring and protection order by the police. I order that the children be questioned, that reports on the findings of the investigations so far be transmitted, and that [the person posing a threat] be charged while remaining at liberty ( auf freiem Fuß angezeigt ).” On the same day, the public prosecutor’s office instituted criminal proceedings against E. on suspicion of rape, bodily harm and making dangerous threats. 29. From 6.50 p.m. until 7.25 p.m. the children A. and B. were questioned in detail at their grandparents’ home by the police concerning the violence they had been subjected to by their father. A transcript of the questioning was drawn up by the police. The children both confirmed their earlier statements to the effect that E. often slapped and screamed at them and behaved in the same way towards their mother. 30. At 11.20 p.m. the competent police officer emailed a report on the findings of the criminal investigations concerning the applicant’s husband to the public prosecutor, together with transcripts of the applicant’s, her children’s and E.’s questioning. The report mentioned that a barring and protection order had been issued and, among other things, listed the offences of which E. was suspected (rape, making dangerous threats, and torment or neglect of under-age, young or defenceless persons). Under the heading “Facts”, the situation was described as follows: “The suspect has been beating his children and his wife for several years already. On 19 May 2012 the suspect choked his wife, as a result of which she suffered haematomas on her chin and her throat, which have been photographically documented. Then he had intercourse with her, even though she told him repeatedly that she did not want it. Furthermore, for months he has been threatening to kill his wife and their children.” 31. The police report on the issuance of the barring and protection order containing the list of indications for an elevated risk (see paragraph 27 above) was not sent to the public prosecutor’s office. 32. On 23 May 2012 the St Pölten Federal Police Department ( Bundespolizeidirektion ) assessed the lawfulness of the issuance of the barring and protection order against E. (under section 38a(6) of the Security Police Act). It found that the evidence showed “coherently and conclusively” ( klar widerspruchsfrei und schlüssig ) that E. had used violence against his family, and that the barring and protection order was therefore lawful. 33. On 24 May 2012 at 9 a.m. E. went to the police station on his own initiative to enquire whether it would be possible for him to contact his children. The police took the opportunity to question him and to confront him with his children’s statements that he had beaten them. E. confessed that he beat them “every now and then”, but “only as an educational measure”, “not about the face” and “never aggressively”. His wife also slapped them from time to time. He added that his children were everything to him, and that he did not have anyone else but his children. He stated that the day before, he had had a telephone conversation with his daughter and she had wanted to see him. He admitted that he had problems with his wife and that he no longer shared the marital bed but slept on a couch in the living room, because she was “such a cold woman”. He stated that he had not beaten her in the past three years. The police noted in their report that E. did not exhibit any signs of potential for aggression while in the presence of the authorities. 34. As a consequence of the above-mentioned questioning, additional charges were brought against E. for torment or neglect of under ‑ age, young or defenceless persons, under Article 92 of the Criminal Code. On 24 May 2012 the public prosecutor requested the St Pölten Regional Court to cross ‑ examine ( kontradiktorische Vernehmung ) the applicant and her children, and requested that an expert in child psychology be involved. The fatal shooting of the applicant’s son 35. On 25 May 2012 E. went to A. and B.’s school. He asked A.’s teacher if he could speak briefly to his son in private, because he wanted to give him money. The teacher, who later stated that she had been aware that money had to be paid for some school events but that she had not been informed of the problems in the family, agreed. When A. did not return to class, she started looking for him. She found him in the school’s basement, having been shot in the head. His sister B., who had witnessed her brother being shot, was not injured. E. had gone. An arrest warrant was issued in respect of him immediately. A. was taken to the intensive care unit of the city hospital. 36. The police questioned several witnesses, including the applicant and her daughter. The applicant stated that E. had always presented “extremely different faces”: towards strangers he had always appeared friendly, but only she had known his “true face”. After the barring and protection order was issued he had called her several times each day. He had wanted to see her and the children together. She had answered that he could of course see the children, but only in the presence of their grandfather. She had also told her children that they could see their father whenever they wanted. She had only preferred to avoid meeting her husband alone with the children, because she was afraid that he would kill the children in front of her. The applicant stated that she had seen her husband in front of the school with his car in the morning, before the shooting. She had been planning to inform the teacher the following day, 26 May 2012, of her family problems. 37. The applicant’s counsellor from the Centre for Protection from Violence (see paragraphs 46 and 71 below) stated that she had never thought that E. would commit such a crime. A.’s teacher said that she had never noticed any injuries on the boy or any other indications that he could have been a victim of domestic violence. She had never heard of any threats being made against the children. The mother of one of A.’s schoolmates, a nurse, described E. as a “friendly and courteous person”. She had met him an hour before the event in front of the school, and he had greeted her and shaken her hand. A father of another schoolmate had also met E. that morning and described him as “calm and polite”. 38. On the same day, at 10.15 a.m., E. was found dead in his car. He had committed suicide by shooting himself. From his suicide note dated 24 May 2012, which was found in the car, it became apparent that E. had actually planned to kill both of the children as well as himself. He wrote that he loved his wife and children and could not live without them. 39. On 27 May 2012 A. succumbed to his injuries and died. The official liability proceedings 40. On 11 February 2014 the applicant instituted official liability proceedings. She contended that the public prosecutor’s office should have requested that E. be held in pre-trial detention on 22 May 2012, after she had reported him to the police. There had been a real and immediate risk that he would reoffend against his family. It should have been clear to the authorities that the barring and protection order had not offered sufficient protection, particularly as the police had known that it could not be extended to cover the children’s school. The applicant claimed 37,000 euros (EUR) in compensation for non-pecuniary damage. She also applied to the court for a declaratory judgment ( Feststellungsbegehren ) that the Republic of Austria was liable for any possible future damage (such as mental and physical problems experienced by the applicant) caused by the murder of her son, which she assessed at EUR 5,000. 41. On 14 November 2014 the St Pölten Regional Court ( Landesgericht ) dismissed the applicant’s claim. It held that, taking into account the information the authorities had had to hand at the relevant time, there had not been an immediate risk to A.’s life. A barring and protection order had been issued against E., which had required him to stay away from the family home and the applicant’s parents’ apartment, as well as the surrounding areas. E. had never acted aggressively in public before. Even though he had allegedly been issuing threats against his family for years, he had never acted upon them. He had complied with the barring and protection order issued in 2010, and no further misconduct had been reported to the authorities after the incident in 2010 until the applicant had reported him to the police on 22 May 2012. There had not been any indications that E. had had a gun in his possession, or that he had tried to obtain one. Moreover, after the issuance of the barring and protection order, E. had cooperated with the police and had not demonstrated any aggressive behaviour, so the authorities had been able to assume that there would be a reduction in tension. The Regional Court considered it relevant that, at the hearing, the applicant had herself admitted that the police might have had the impression that E. was cooperative and not aggressive. She told the court that her husband had been a good actor and could present himself well. To others he had always been very friendly and kind. She herself had always given him another chance when he showed remorse for his behaviour and promised to do better. The court weighed the applicant’s and her children’s right to be protected against the rights of E. under Article 5 of the Convention, and held that pre-trial detention should only be used as the ultima ratio. A less intrusive measure had been issued instead, namely the barring and protection order with respect to the applicant’s and her parents’ residential premises. The court concluded that the public prosecutor’s office had therefore not acted unlawfully or culpably by not taking E. into pre-trial detention. 42. The applicant appealed, repeating that the public prosecutor’s office should have been aware that there had been an increased threat of further violent acts by E. since she had filed for divorce. She presented statistics showing that the number of homicides committed between partners was significantly higher during the separation phase of a couple, the phase in which the applicant and E. had found themselves. The applicant asserted that the authorities had been aware that E.’s violence against her had increased since February 2012. In fact, he had specifically threatened that he would kill the children in front of the applicant, and that he would kill her or himself. The applicant also argued that the domestic authorities were under a positive obligation under Article 2 of the Convention to protect her and her children’s lives by making use of criminal-law provisions and the relevant measures under criminal law, which, in her specific situation, could only have meant detention. The barring and protection order as a “less intrusive measure” had not been sufficient as the police could not have extended it to cover the children’s school. 43. On 30 January 2015 the Vienna Court of Appeal ( Oberlandesgericht ) dismissed the applicant’s appeal. It held that the public prosecutor’s office had some discretion when deciding on whether to take a person into pre-trial detention. Official civil liability could only be established if the decision had not been justified under the particular circumstances. The starting-point for the evaluation of such a decision was the specific information the authorities had to hand at the time the decision was taken. The public prosecutor’s office had to decide on the basis of the specific information available and the facts of the case before it. In the absence of such information, any general knowledge concerning increased levels of homicide during divorce proceedings was not decisive. What mattered was whether at the relevant time there had been serious reasons to suggest that there was a real and individual risk that E. would commit further serious offences against the applicant and her children. According to the information available to the public prosecutor’s office at the time, and considering that a barring and protection order had already been issued, there had not been sufficiently specific grounds to assume the existence of such a risk, in particular in the public area, for the reasons already set out by the St Pölten Regional Court. 44. On 23 April 2015 the Supreme Court rejected an extraordinary appeal on points of law by the applicant. Its decision was served on the applicant’s counsel on 16 June 2015. | This case concerned the applicant’s complaint that the Austrian authorities had failed to protect her and her children from her violent husband, which had resulted in his murdering their son. She maintained in particular that she had specifically informed the police that she feared for her children’s lives. |
907 | Independence and right to a fair trial | I. THE CIRCUMSTANCES OF THE CASE 10. In January 1967 the applicant was convicted of murder. He was released on licence in April 1979. His licence required him to cooperate with his probation officer and to remain in the United Kingdom unless his probation officer agreed to his travelling abroad. 11. Soon after release the applicant left the United Kingdom in breach of his licence and went to live in South Africa. In September 1980 his licence was revoked and thereafter he was continuously “unlawfully at large”. 12. In April 1989 the applicant was arrested in the United Kingdom, having returned from South Africa in possession of a false passport. Possession of a false passport led to a fine. He remained in custody, however, due to the revocation of the life licence. He made written representations to the Parole Board against the 1980 decision to recall him to prison but the Board rejected those representations and recommended a further review in July 1990. 13. In November 1990 the Board recommended the applicant's release subject to a satisfactory release plan. This recommendation was accepted by the Secretary of State. In March 1991 the applicant was released on life licence. 14. In July 1993 the applicant was arrested and remanded in custody on counterfeiting charges. On 19 July 1994 he was convicted on two counts of conspiracy to forge travellers' cheques and passports and sentenced to six years' imprisonment. 15. In September 1994 the Parole Board recommended revocation of the applicant's life licence and further review at the parole eligibility date of his six-year sentence. The Secretary of State accepted the Board's recommendation, revoking the licence under section 39(1) of the Criminal Justice Act 1991 (“the 1991 Act”). The applicant made written representations, but the Board maintained its decision. 16. In 1996 the Parole Board conducted a formal review of the applicant's case and recommended his release on life licence. It said: “This case is exceptional in that it is a recall one and he has previously made a successful transition from prison to the community without violent reoffending ... It is felt that the risk of serious reoffending in the future is very low. Recent reports of progress in prison have been favourable and no untoward incidents have been reported; positive links with his family have been maintained. In view of these facts, it is now felt that he could be released safely and appropriately into the community. The Panel took the view after lengthy consideration that nothing further would be gained by a period in open conditions, and the successful return to the community, bearing in mind all risk factors, would be best facilitated by returning to his family directly.” 17. By letter of 27 February 1997 to the applicant, the Secretary of State rejected the Board's recommendation in the following terms: “... [The Secretary of State] notes with concern the circumstances surrounding your two recalls to prison ... Both these occasions represent a serious and grave breach of the trust placed in you as a life licensee and demonstrate a lack of regard for the requirements of supervision. Against this background the Secretary of State is not yet satisfied that if released on licence for a third time, you would fully comply with the conditions of your life licence. He notes that you have spent the past 3 1/2 years in closed prison conditions and therefore have not on this occasion followed the normal progression of life sentence prisoners. This involves a period in open conditions, giving you the opportunity to demonstrate sustained good behaviour and responsibility in a less secure environment; and to experience the full range of resettlement activities in preparation for release. For these reasons, the Secretary of State considers that you should be transferred to an open prison for a final period of testing and preparation. Your next formal review by the Parole Board will begin 2 years after your arrival there.” 18. On 10 June 1997 the applicant was granted leave to seek judicial review of the Secretary of State's decisions to reject the Board's recommendation for immediate release and to require him to spend a further two years in open conditions before the next review. 19. On 1 July 1997, but for the revocation of his life licence, the applicant would have been released from prison on the expiry of the sentence for fraud, pursuant to provisions whereby prisoners serving determinate sentences of more than four years were released after serving two-thirds of their sentence (section 33 of the 1991 Act). 20. The Secretary of State acknowledged in the proceedings that there was not a significant risk that the applicant would commit further violent offences, but asserted that he could lawfully detain a post-tariff mandatory life prisoner solely because there was a risk that he might commit further non-violent imprisonable offences. 21. On 5 September 1997 Mr Justice Collins quashed the Secretary of State's decision of February 1997, holding that it was beyond his power to detain a post-tariff life prisoner other than on the basis that there existed an unacceptable risk that he might commit a future offence involving a risk to the life or limb of the public. 22. On 26 November 1997 the Court of Appeal allowed the Secretary of State's appeal, holding that section 35(2) of the 1991 Act conferred a broad discretion on the Secretary of State to direct the release of mandatory life prisoners and his decision not to release the applicant was in accordance with the previously stated policy whereby the risk of reoffending was taken into account, such risk not having been expressed as being limited to offences of a violent or sexual nature. Lord Bingham CJ stated, however: “The applicant is now serving the equivalent of a determinate sentence of about five years, albeit in open conditions. This term has not been imposed on him by way of punishment, because he has already served the punitive terms which his previous, very serious, offences have been thought to merit. The term has not been imposed because he is thought to present danger to the public, because that is not suggested. It is not submitted that the term imposed bears any relation to the gravity of any future imprisonable offence which the applicant might commit or that such term is needed to ensure future compliance with the terms of his life licence. While a powerful case can be made for testing in open conditions a mandatory life prisoner who has been institutionalised by long years of incarceration in closed conditions, such a case loses much of its force in the case of a man who has, since serving the punitive term of his life sentence, demonstrated his capacity for living an independent and apparently lawful life by doing so for a number of years. The imposition of what is in effect a substantial term of imprisonment by the exercise of executive discretion, without trial, lies uneasily with ordinary concepts of the rule of law. I hope that the Secretary of State may, even now, think it right to give further consideration to the case.” 23. Lord Justice Buxton, concurring with the latter remarks, added: “The category of imprisonable offence is extremely wide, and can encompass many matters that are wholly unrelated, both in nature and seriousness, to the reasons for the life sentence prisoner being within the power of the State in the first place. I also find it uncomfortable that the criterion should be used as the justification for continued imprisonment. We were told in argument that the test of imprisonable offence, rather than of fault of a purely moral or social nature, was used because faults of the latter nature would be unconnected with the original reasons for the subject's incarceration; but in reality this lack of connection exists, or at least is strongly threatened, by the imprisonable offence criterion also. ...” 24. On 16 December 1997 the applicant was moved to open conditions. 25. By letter dated 21 January 1998, the Secretary of State decided that the applicant should spend only six months in open conditions before his next review. 26. On 23 July 1998 the House of Lords dismissed the applicant's appeal against the Court of Appeal's decision. In his speech, with which the rest of the judges agreed, Lord Steyn held that section 35(2) of the 1991 Act conferred a wide administrative discretion on the Secretary of State to decide upon the release on licence of mandatory life prisoners and that there was no fundamental common-law principle of retributive proportionality which restrained him from detaining a mandatory life prisoner by reference to a risk that he may in future commit a serious but non-violent offence. He expressly repeated Lord Bingham's concern that the imposition of a substantial term of imprisonment by exercise of administrative discretion was hard to reconcile with ordinary concepts of the rule of law. 27. On 22 December 1998 the applicant was released on licence by the Secretary of State. III. THIRD-PARTY INTERVENTION 50. Justice, a human rights and law reform organisation founded in 1957, submitted written comments regarding domestic law and practice, following the leave granted to it by the President of the Court to intervene as a third party (see paragraph 7 above). Its submissions may be summarised as follows. 51. The mandatory life sentence imposed by the 1965 Act (see paragraph 28 above) applied to all convictions for murder, covering a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal serial killings to the mercy killing of a beloved partner. It could not be said that murder was a uniquely heinous offence. The mandatory application of life sentences therefore made the arrangements for release all the more critical in terms of fairness and just deserts. Access to regular judicial review once the tariff expired had been extended to discretionary life prisoners and child murderers and the Secretary of State could no longer set tariffs in these cases. Similar provisions were now being extended to mandatory life prisoners in both Scotland and Northern Ireland under legislation to ensure compliance with human rights. 52. There had been substantial criticism of the current system. In 1989, a Select Committee of the House of Lords, appointed to report on murder and life imprisonment, recommended the abolition of the mandatory life sentence. In 1996 the Home Affairs Select Committee of the House of Commons took evidence and deliberated on the same issues. Their report (Murder: The Mandatory Life Sentence) recommended that the tariff and release decisions be removed from the Home Secretary and left with the trial judge and Parole Board. Lord Lane, formerly Lord Chief Justice, chaired a Committee on the Penalty for Homicide, which also produced a critical report in 1993. 53. The diversity of circumstances that could lead to a murder conviction meant that murderers as a class of offender did not pose special problems of dangerousness. They had a lower recidivism rate than discretionary life prisoners and the general prison population. The system of tariff-fixing was not easily understood by the prisoners concerned and was subject to delays and uncertainty, both of which factors impinged on the quality of work with life prisoners at the crucial early stages of their sentences. 54. The United Kingdom had more serving life prisoners than the rest of Europe together, which was attributable primarily to the mandatory life sentence for murder. While some countries, such as Germany, France and Italy, had mandatory life sentences, these were only applied where there were aggravating factors or for a particular type of murder. Article 77 of the Statute for the International Criminal Court provided that a life sentence could only be ordered “when justified by the extreme gravity of the crime and the individual circumstances of the convicted person”. | The applicant, formerly sentenced to a life sentence, was released on parole. He was recalled to prison following charges of counterfeiting and the Secretary of State later ordered his continued detention pursuant to the original life sentence. |
605 | Religious holidays | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and lives in Naples. 6. The applicant is Jewish and a lawyer by profession. On 7 June 2005 he appeared before the Forli investigating judge at a hearing concerning a request for the immediate production of evidence (“ incidente probatorio ”) in his capacity as representative of one of the two complainants in criminal proceedings against several banks. The investigating judge in charge of the case was prevented from sitting and his replacement invited the parties to choose between two dates for the adjourned hearing – either 13 or 18 October 2005 – already identified by the investigating judge. 7. The applicant pointed out that both dates coincided with Jewish religious holidays (Yom Kippur and Sukkot respectively) and stated that he would be unable to attend the adjourned hearing because of his religious obligations. He explained that he was a member of the Naples Jewish community, and alleged a breach of sections 4 and 5 of Law no. 101 of 8 March 1989 governing relations between the State and the Union of Italian Jewish communities. 8. The investigating judge set the hearing down for 13 October 2005. 9. The same day the applicant lodged an application with the investigating judge in charge of the case to have the hearing adjourned. On 20 June 2005, after examining the application, the judge decided to add it to the case file without ruling on it. 10. On 11 July 2005 the applicant lodged a criminal complaint against the investigating judge in charge of the case and his replacement, alleging that they had breached section 2 of Law no. 101 of 1989. The same day he informed the Supreme Council of the Judiciary about the complaint. 11. At the hearing of 13 October 2005, the investigating judge noted that the applicant was absent for “personal reasons” and asked the parties to express their views on the application for an adjournment made on 7 June. The prosecution and counsel for the defendants objected to the application, arguing in particular that it was not based on any of the statutory grounds for adjournment. However, counsel for the other complainant supported the applicant’s request. 12. In an order issued the same day the investigating judge rejected the application for an adjournment. He noted at the outset that, under Article 401 of the Code of Criminal Procedure, only the prosecution and counsel for the defendant were required to be present at hearings concerning the immediate production of evidence; the presence of counsel for the complainant was optional. He went on to observe that the Code of Criminal Procedure did not oblige the judge to adjourn a hearing where counsel for the complainant had legitimate reasons for being unable to appear. Lastly, he stressed that a large number of individuals were involved in the proceedings (the defendants, the complainants, court-appointed experts and experts appointed by the parties) and that, “in view of the heavy workload of the office, which would [have meant] adjourning the hearing until 2006, the application, submitted by an individual with no legitimate reason to request an adjournment, ha[d] to be rejected in accordance with the principle that cases should be heard within a reasonable time”. 13. On 23 January 2006 the Supreme Council of the Judiciary informed the applicant that it was not competent to examine the matter since the applicant’s complaints related to the exercise of judicial activity. 14. In the meantime, on 9 January 2006, the Ancona public prosecutor’s office had requested that no further action be taken on the applicant’s complaint. The applicant objected to this request on 28 January 2006. 15. On 21 September 2006 the Ancona investigating judge made an order discontinuing the proceedings concerning the applicant’s complaint, noting that the applicant had not objected to the request for no further action submitted by the public prosecutor’s office. 16. On 19 January 2007 the applicant lodged an appeal on points of law, complaining of the investigating judge’s failure to take account of the objection he had lodged on 28 January 2006. The Court of Cassation, observing that the failure to take the applicant’s objection into account had probably been due to a registry error, set aside the order of 21 September 2006 and referred the case back to the Ancona District Court. 17. On 12 February 2008 the applicant and the prosecution attended a hearing before the Ancona investigating judge. On 15 February 2008 the latter issued an order discontinuing the proceedings. He noted that there was nothing in the case file to suggest that the investigating judge in charge of the case or the judge who had replaced him at the hearing of 7 June 2005 had had any intention of infringing the applicant’s right to practise his Jewish faith freely or of offending the applicant’s dignity on account of his religious faith. | The applicant was a member of the Jewish faith and a lawyer by profession. In his capacity as representative of one of the complainants in a case, he appeared before an investigating judge at a hearing concerning the production of evidence. As the judge was prevented from sitting, his replacement invited the parties to choose between two dates for the adjourned hearing. The applicant pointed out that both dates corresponded to Jewish religious festivals and that his religious obligations would prevent him from attending. The hearing was set down for one of the two dates in question and the applicant applied for an adjournment. The prosecution and counsel for the defendants objected to the application on the ground that there was no legally recognised reason for granting an adjournment. The applicant alleged that the refusal by the judicial authority to postpone the hearing set down for the date of a religious festival prevented him from taking part in his capacity as the representative of one of the complainants and infringed his right to manifest his religion freely. |
632 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant company has its registered office in Paris. The other two applicants were born in 1946 and 1957 respectively and live in Paris and Saint-Cloud. 7. In its issue no. 1272, dated 1 February 1997, the weekly magazine Le Point published an “investigation” headlined “ Vichy : Around the Papon Case”. Several pages focused on Mr Michel Junot, under the headline “1942-1943 Revelations: Michel Junot, deputy to mayor Jacques Chirac on the Paris City Council from 1977 to 1995, was Deputy Prefect at Pithiviers in 1942 and 1943. In that capacity, he was responsible for maintaining order in the two internment camps in his district, Pithiviers and Beaune-la-Rolande”. The article included the following passages: “'It has to be said that, all political consideration set aside, Vichy's civil servants gave a remarkable example of efficient, skilful and honest administration .'That good-conduct citation, awarded in 1981, does not come from Maurice Papon, who has now been committed to stand trial in the Bordeaux Assize Court for'complicity in crimes against humanity'. Those are the exact words used in L'illusion du bonheur, a book published ... by Michel Junot, a deputy mayor when Jacques Chirac ran Paris City Council between 1977 and 1995, who knows his subject, since he was Deputy Prefect in Pithiviers, in the département of Loiret, in 1942 and 1943. In that capacity he supervised the maintenance of order in the camp of that town, where thousands of Jews were interned before being deported to Auschwitz. Unlike Maurice Papon – and this is a significant difference between the two cases – he did not order anyone to be arrested, interned or transferred to Drancy. After the war Michel Junot enjoyed a brilliant career in France's highest administrative spheres before turning to politics. He was to become a member of parliament for Paris from 1958 to 1962, giving his allegiance to the CNI, which he never left. But it was on Paris City Council, where he served as mediator from 1977 to 1989 that he spent the longest part of his career. He is a former MEP and since 1978 has been the president of the Maison de l'Europe in Paris. Until now, he has always maintained that the internment camps in his district, Pithiviers, and Beaune-la-Rolande some twenty kilometres away, were not under his control. His main duties were to inspect the local districts and to compile'general and confidential information'files on local dignitaries. The Pithiviers camp?'it was not under my jurisdiction. I never set foot in it'he told L'Express magazine in 1990. An outright denial which is, however, inconsistent with several documents not previously published which Le Point has managed to obtain. Documents which clarify his field of activity. ... when he was appointed Deputy Prefect at Pithiviers on 9 June 1942 ... the camps at Pithiviers and Beaune-la-Rolande, originally intended for German prisoners of war, were already being used as internment camps prior to their inmates being deported, the first having left on 8 May 1942. Michel Junot, who was to remain in office for exactly a year to the day, took up his post in Pithiviers on 24 August 1942, that is, less than a month before the departure, on 20 September 1942, of a fresh transport of Jewish deportees. On that day a thousand detainees arrested during house-to-house searches in the Paris region, including 163 children under 18, were put on transport no. 35 and shipped off to Auschwitz via Drancy, the camp to the north of Paris. On the eve of their departure, Michel Junot informed the Prefect of his concerns about maintaining order.'I hereby inform you that I have just been notified of the entrainment of a thousand Jews from the Pithiviers camp tomorrow from 5 p.m. onwards at Pithiviers railway station, and that all the gendarmes in my district apart from one officer per squad are therefore required to assist with the entrainment ... .'... Two days later, on 2 2 September, Junot did not hide his satisfaction when sending the Prefect the following report:'The day of 20 September 1942 went very smoothly throughout my district. The limited police presence planned for the afternoon of 20 September could not be deployed ... because all the gendarmes in the area, except for one officer per squad, were required for the entrainment of the Jewish detainees of the Pithiviers camp, whose departure I was suddenly notified of on 19 September at 3 p.m. The entrainment was to take place between 4 and 7 p.m. at Pithiviers station at the far end of the avenue de la République where the communists had called on ... the inhabitants of Pithiviers to demonstrate at 6.30 p.m., and I was concerned that some incidents might occur which could disrupt an orderly departure. But nothing of the sort happened and the town remained perfectly calm.'... Then, in a'monthly report'drafted eight days later for his superiors, he scrupulously went over the events again. On 30 September 1942 he reported in detail on the situation in the two'internment camps', as he headed the third paragraph of his report.'The Beaune-la-Rolande camp, which has been empty since the end of August, has been cleaned', Junot stated.'The conditions there are now excellent. Two transports of Jews passed through and spent twenty-four hours there before leaving for Drancy. There are only about twenty detainees left at the camp, doing maintenance work.' Michel Junot went on:'The Pithiviers camp had been occupied since the end of August by 1,800 Jewish internees of all categories, French and foreign, men, women and children, some arrested during the August and December 1941 round-ups, others for having infringed the regulations of the occupying forces (demarcation line, wearing the star of David, etc.). All of them, except those married to Aryans and a few mothers of young children, were placed on trains bound for Germany on 20 September. Finally the last internees left Pithiviers in the evening of the 24th for Beaune-la-Rolande so as to clear the camp, which was due to receive communist internees. In fact this last Jewish transport spent only twenty-four hours in Beaune before being sent on to Drancy on the orders of the occupying forces.' Drancy was the last stop in France before they were deported to Germany and the final solution: their physical destruction. ... On reading this dry civil servant's prose, the Acting Prefect of Loiret, Jacques Marti-Sane, expressed his satisfaction in writing. He was pleased with the orderliness which had prevailed during the entrainment of the deportees, who until then had been crammed into huts surrounded by barbed wire and picked out by searchlight beams from the watchtowers. In an internal memorandum dated 1 October 1942 – another document not previously published – the Acting Prefect informed the head of the first division of the prefecture, who was responsible for organisation and surveillance:'The Pithiviers Deputy Prefect may be called upon to intervene in the matter of the camps in an emergency and on my express instructions. In any event, in his capacity as the government representative in Pithiviers, he has the right to monitor the proper functioning of the camps. Accordingly, it seems to me essential that all instructions sent to the camp commandant should be copied to the Pithiviers Deputy Prefect, so that he is not bypassed.'... No fewer than seven transports left from camps in Loiret between June and September 1942, the last one under Junot's responsibility. In his October report, the Deputy Prefect expressed his concerns over the difficulty in maintaining order in Beaune-la-Rolande, which was full of'French and foreign Jews who have contravened the regulations of the occupying forces (in particular, attempts to cross the demarcation line) and whom the German police have sent to the Beaune camp'. As a conscientious official, Michel Junot went so far as to suggest:'If there is a further rise in the number of internees, we should make plans to strengthen the security arrangements.' In the same report, he pointed out that communists were gradually replacing the Jews in Pithiviers, though there were still 1,574 of the latter on 30 October 1942 compared with 1,798 on 26 September. ' The presence of this camp inside my district means that the sub-prefecture is receiving a number of letters asking for leave to visit and even for people to be released. I have had some standard-form replies drafted explaining that I have no power to take such measures and that only the Prefect who took the internment decision has any authority in that respect. There is nothing to report from the camp, which is guarded most efficiently by a detachment of gendarmes', he wrote. ... On the day of the liberation of Orléans, 16 August 1944, Michel Junot was present. He waved the tricolour from the balcony of Loiret's prefecture. And he stood at the head of the prefecture steps to welcome André Mars, the commissaire de la République sent by General de Gaulle. But that did not stop him being swept away in the subsequent purge. On 14 December 1945, ten months after awarding Junot a'certificate of participation in the Resistance', de Gaulle signed a decree removing him from office. The hero of Free France was acting in response to a decision of the National Purification Commission based on a report from the Loiret departmental liberation committee stating that Junot was'a typical careerist, devoid of all moral scruples, not to be allowed to hold any kind of public office'. However, like many servants of the French State, Junot claimed to have been playing a double game. He explained that he had worked for a'network'of the Central Intelligence and Action Bureau ... citing his activity on behalf of General de Gaulle's intelligence service in London under the Occupation and the medals he had received as a result. He must have been persuasive, because when peace returned he was to be found once more as permanent secretary to various Ministers, before becoming a deputy prefect again in 1956 and then prefect in 1957. ... ” 8. An interview with Mr Junot was also published as part of the investigation. It included the following statement by him: “ ... It was only when I reported to the Prefect of Loiret that I discovered the existence of the camps. At that time I did not know who was interned there. There had been communists, at the time of the breaking of the Germano-Soviet pact. And there were foreign Jews. We did not know their ultimate destination. We only knew that they were going to Drancy. Rumour had it that they were being sent to work in salt mines in Poland. We obviously knew that they were not going off on a pleasant holiday. But I did not learn of the existence of the extermination camps until April 1945 when the first deportees returned. When I took up office, on 24 August 1942, all the transports except one had already left.” When the interviewer asked Mr Junot if he thought this “ renewed interest in those dark years” was “necessary for the young generations” he replied: “If Frenchmen in those days made mistakes, or sometimes committed war crimes, I think there is the discreet veil of history ... ” 9. At 5 p.m. on 31 January 1997 the third applicant, who is a journalist with France Info (a radio station controlled by the applicant company), broadcast the following report: “According to the weekly magazine Le Point, a former deputy mayor of Paris supervised the deportation of a thousand French and foreign Jews in 1942. Michel Junot, now aged 80, was Deputy Prefect of Pithiviers at the time. He admits that he organised the departure of a transport of deportees to Drancy. Michel Junot, whom General de Gaulle removed from office at the end of the war, claims to have been in the Resistance and subsequently rose through the ranks of the civil service. In his defence, the former deputy mayor of Paris between 1977 and 1995 maintains, like Maurice Papon, that he knew nothing of the fate of the deported Jews and says that the discreet veil of history should be drawn over the crimes of those days.” The way in which France Info operates is for the presenter to broadcast live, with two news bulletins and two news flashes per half-hour. He then breaks for an hour to update his information before going on air again. The above-mentioned broadcast was accordingly repeated by the third applicant and by other journalists sixty-two times between 6 p.m. on 31 January and 11.04 a.m. on 1 February, in either the same or a slightly different form. However, the broadcasts systematically specified that the report was based on an article published in Le Point. After 11 p.m., a number of news bulletins and flashes mentioned the fact that, “unlike Maurice Papon”, Michel Junot had never issued any orders for anyone to be arrested, interned or transferred to Drancy, sometimes adding that he was “responsible only for keeping order”. On 1 February 1997, from 5.45 a.m. onwards, several news bulletins and flashes (broadcast at 6.45, 7, 7.15, 8, 8.15, 8.23, 8.30, 8.45 and 9.33 a.m.) mentioned that Mr Junot denied the allegations published in Le Point. According to the applicants, this point was made systematically after 11.04 a.m. 10. Mr Junot brought proceedings in the Paris Criminal Court against the second applicant, who is publishing director of the applicant company (the publisher), the third applicant and the applicant company as principal, accessory and civilly liable respectively for the offence of public defamation of a civil servant, contrary to sections 29, first paragraph, and 31, first paragraph, of the Freedom of the Press Act of 29 July 1881 (“the 1881 Act”). In their defence, the applicants argued that the case under section 31 of the 1881 Act was inadmissible, because Mr Junot had been retrospectively stripped of his status as a civil servant at the time of the Liberation. They also contended that the prosecution's case against the second applicant was inadmissible: the disputed statement had been broadcast live and its content could not therefore be construed as having been “fixed prior to being communicated to the public” within the meaning of section 93 - 3 of the Audiovisual Communication Act of 29 July 1982 (“the 1982 Act”). Moreover, they submitted that the third applicant had acted in good faith. In that connection, they argued that public interest in the period of the Occupation had been revived by the news of the Papon trial; that the third applicant had been in possession of the article published in Le Point on the previous day along with three agency dispatches; that it had been reasonable to link the cases of Mr Junot and Mr Papon because both men had held high public office during the Occupation and had subsequently enjoyed brilliant political careers; that the use of the conditional tense and the absence of any personal comment about Mr Junot demonstrated the journalist's caution; and that France Info had reported Mr Junot's denials from 6 a.m. on 1 February onwards. 11. By a judgment of 25 November 1997, the Paris Criminal Court (Seventeenth Division) found the second and third applicants guilty as principal and accessory respectively of the offence of public defamation of a civil servant. It fined them 20,000 French francs (FRF) each and ordered them jointly to pay FRF 50,000 in damages. It also found the applicant company civilly liable and ordered by way of civil remedy that an announcement informing the public of the content of its judgment be broadcast on France Info every thirty minutes during a twenty-four hour period in the month following the date on which the judgment became final. With regard to the defamatory nature of the disputed allegations, the judgment reads as follows: “Mr Junot is alleged ... to have personally played an active role in the deportation of Jews in his capacity as Deputy Prefect of Pithiviers. This allegation, which undoubtedly damages the honour of the civil party, is moreover aggravated by the connection made between the case of Mr Papon – who has been committed for trial before the Gironde Assize Court to answer charges that he participated in crimes against humanity – and that of Mr Junot, with the suggestion that the latter was seeking to evade responsibility for the crimes committed during that period, over which he believes that'the discreet veil of history should be drawn'. The fact that it was specified that,'unlike Maurice Papon', Michel Junot'did not issue any orders for anyone to be arrested, interned or transferred to Drancy'in no way detracts from the seriousness of the charge levelled at the civil party; the same can be said of the use of the conditional tense throughout the broadcasts. The allegations in question also cast doubt on Mr Junot's membership of the Resistance, which was reported as a mere'claim'on his part, and suggested that he had been stripped of his status by General de Gaulle at the end of the war. These words also damage the civil party's honour and reputation.” The court found that Mr Junot had never lost the rank of Deputy Prefect, and that he should be considered as having been acting in that capacity in Pithiviers at the time of the facts alleged against him and accordingly to have been exercising public authority. It found that section 31 of the 1881 Act was therefore applicable. With regard to the good faith of the third applicant, the court found as follows: “There being a presumption that defamatory statements are made in bad faith, it is for the defendants to prove their good faith. It should first be noted that the repetition of defamatory statements already published in another medium does not in any way provide the person who repeats them with a defence; such journalistic practice is particularly to be deprecated, because it means that a statement that has not been verified by anyone subsequently reporting it acquires the appearance of an absolute certainty. This is what happened with Mr Junot: having assumed that the enquiries made by his fellow journalists at Le Point were reliable, Bertrand Gallicher simply repeated the magazine's allegations against the civil party without checking them. As evidence that he had carried out a serious investigation, Bertrand Gallicher told the Court that he had been in possession of the article published in Le Point on the previous day, and of three agency dispatches; however these dispatches, which simply quoted large sections of the magazine article, could not, without more, provide the journalist with a legal defence. The journalist also produced the documents mentioned in Le Point : the Prefect's memorandum of 1 October 1942, Michel Junot's notes of 19 and 22 September 1942 and the monthly reports for September and October 1942; however, these documents did not give him grounds for asserting that Michel Junot, Pithiviers Deputy Prefect, had supervised the deportation of a thousand Jews or that he had admitted having organised the departure of a transport of Jewish deportees. Neither the memorandum from the Prefect of Loiret dated 1 October 1942 specifying that the Pithiviers Deputy Prefect must be copied in on all the instructions given to the camp commandant, nor the memorandum of 19 September 1942 to the Prefect signed by Michel Junot and expressing his concerns about keeping order on 20 September 1942 in the event of communist demonstrations because all the gendarmes in the district had been drafted in to help with the'entrainment of a thousand Jews', nor the report drawn up by Michel Junot on 22 September 1942 on the events of the day, which had been'perfectly calm', prove that Michel Junot, Deputy Prefect, had played a personal part in the organisation and departure of that transport for Drancy. In fact, what these documents show is that he complained of having been notified only belatedly of the'entrainment of a thousand Jews', that he did not receive copies of all the instructions sent to the camp commandant, a memorandum from the Prefect having been required to ensure that he was not'bypassed'and that his concern was to maintain order outside the camps. Michel Junot's monthly reports for September and October 1942 do not carry any more evidential weight in this respect; while the first mentions that most of the Jews in the Pithiviers camp had been'entrained'on transports bound for Germany on 20 September 1942; while both report on the occupancy rate of the two internment camps situated in his district and thus establish his'responsibility in principle'for the camps (using Mr Serge Klarsfeld's formula); while they keep the Prefect informed of relations with the German forces and the circumstances in which the anti-Jewish laws were being applied and certainly show that Mr Junot was performing his functions of Deputy Prefect under the Occupation with zeal and determination, and without being troubled by too many scruples, they nonetheless do not prove that he played a personal part in the deportation of Jews or that he organised the departure of a transport of Jewish deportees. Turning to the other documents cited by the defence, namely a letter dated 19 September 1942 from the secretary-general for the police on the Conseil d'Etat to the Orléans Regional Prefect and the latter's reply dated 21 September 1942, and a memorandum dated 19 September 1942 from the Pithiviers Deputy Prefect to the captain of the gendarmerie and police superintendent, they cannot be regarded by the Court as having any evidential weight, since they are merely summarised on a plain sheet of paper. In short, the documents in Bertrand Gallicher's possession did not give him grounds for alleging that Mr Junot was guilty of having participated in crimes against humanity. Nor did these documents entitle the presenters who came on air after 0.33 a.m. on 1 February to repeat the allegation that the plaintiff had supervised the Jewish internment camps of Pithiviers and Beaune-la-Rolande and the maintenance of order in both camps. Lastly, the testimony of Mrs Mouchard-Zay recounting the dramatic circumstances of the various round-ups of Jewish men, women and children, the conditions in which they were transferred to and arrived in the two camps of Pithiviers and Beaune-la-Rolande, and the dramatic change in public opinion which coincided with these events, does not prove that Mr Junot played any part in the organisation of these deportations. While being aware of the professional constraints imposed by the need to break news rapidly, which is inherent in the very nature of radio, the Court notes that the journalists, far from merely reporting raw news objectively, endorsed the interpretation adopted by some of their fellow journalists, while going further by making a connection with the'Papon case', no doubt with the intention of making the story more sensational. The disputed broadcasts were therefore particularly careless and contributed to the spread of rumour by repeating defamatory allegations. In relation to the allegation that Mr Junot was not a genuine member of the Resistance, the Court finds that the evidence produced by the defence is insufficient to cast doubt on his Resistance activities, which in any event have been vouched for by Jean-Claude Aaron, the leader of the Masséna network, by Colonel Rémy and by several people of Jewish descent who described the help he had given them during the Occupation. For all of the above reasons, the Court is unable to accept that [the third applicant] acted in good faith.” The court found the second applicant, in his capacity as publishing director, not liable for the first broadcast, which had been made live by the third applicant on 31 January at 6 p.m. It found, however, that the same statement had been repeated either in full or in condensed form by the various presenters who subsequently went on air, and considered that such “systematic repetition of the disputed statements” should be construed as “rolling broadcasting” within the meaning of section 93 - 3 of the 1982 Act. The court concluded as follows: “[The second applicant], as publishing director, whose duty it is to control what is broadcast on the channel for which he is responsible, is therefore liable in law as principal for the offence of defamation.” 12. On appeal by the applicants, the Paris Court of Appeal (Eleventh Criminal Appeal Division) upheld the judgment of 25 November 1997 by a decision of 17 June 1998. On the question of the defamatory nature of the offending bulletin's content, it ruled as follows: “Words may be defamatory as the result of an insinuation, a question or an assertion. In addition, words must be assessed both in terms of their intrinsic meaning and in the light of their context. Attributing to Mr Junot responsibility for supervising the deportation of a thousand Jews and organising their despatch to Drancy was plainly an attack on his honour and dignity. The defence arguments ... tending towards proving the truth of the facts is not relevant here, quite apart from the fact that no evidence to that effect has been adduced. Moreover, comparing Mr Junot's position to that of Mr Papon, who had indeed just been committed for trial in the Bordeaux Assize Court, also necessarily had a defamatory resonance. The same defamatory classification must also be given to the passage'[Mr Junot] ... claims to have been in the Resistance'. Coming as it does between the reference to his being sacked by General de Gaulle and the comparison to Mr Papon, this can only insinuate that Mr Junot's assertion was false.” On the question of good faith, the judgment said: “Calumnious imputations are deemed to be in bad faith unless it can be established that they were made in pursuit of a legitimate aim, without any personal animosity, after a serious investigation and in temperate language. There is no doubt that providing information about the attitude of administrative officials during the period of the Occupation, particularly as regards one of the main dramas of that time, the deportation and extermination of Jews, is perfectly legitimate. Nothing in the file reveals any particular animosity on the journalist's part towards the civil party. On the other hand, the preliminary investigation was singularly lacking in rigour. The civil party has rightly observed that Mr Gallicher began to broadcast his remarks at 6 p.m. on 31 January, in other words when the issue of Le Point dated 1 and 2 February had just come out. In seeking to establish their good faith the defence cite three dispatches (AFP, AP and Reuters) which mentioned the article in Le Point and the content of a television programme in which Mr Junot had taken part. But the use of agency dispatches as one's main source, especially when they are purely repetitive and reproduce an article that has already been published does not constitute evidence that an attempt has been made, if not to conduct an investigation, then at least to check the information. In addition, the wholly gratuitous assertion that Mr Junot admitted his culpability is particularly reprehensible from both the criminal and the ethical points of view. As regards the debate about whether Mr Junot had been a member of the Resistance, the Criminal Court rightly noted that the documents produced by the defence were not sufficient evidence to the contrary, whereas his participation has been attested to by the leader of the Masséna network, Jean-Claude Aaron, by Colonel Rémy and by a number of persons of Jewish origin who have drawn attention to Mr Junot's courageous attitude. Moreover, the imputations contained in the message sent out were disproportionate in relation to the objective material that the accused maintained they had at their disposal, and here it should be noted, as clarification of this point may be helpful, that neither the use of the conditional tense pleaded in defence, nor the mention – very late in the day – of Mr Junot's denials, affect the gravity of the allegations made in dispatches broadcast several dozen times. The content of the documents which the defendants learned of in Le Point is not convincing in terms of the construction that has been placed upon them if they are to be considered to reflect Deputy Prefect Junot's attitude at the time of the departure of the last transport of Jewish deportees on 20 September 1942. The memo of 19 September from the deputy prefect to his prefect ... said:'I have just been notified of the entrainment of a thousand Jews ... tomorrow', and he complained that he would therefore not have sufficient manpower to control a communist demonstration. The same deputy prefect sent a memo, dated 22 September, informing the prefect that there had been no incidents on account of the demonstration and that the departure of the transport had been orderly. The memo of 1 October 1942 from the Prefect of Loiret seems to echo his subordinate's concerns about being informed in stipulating that the deputy prefect'in his capacity as the government representative ..., has the right to monitor the proper functioning of the camps'. The reports sent by Michel Junot to his prefect in September and October 1942 describe the situation in the camps but do not reveal that he had any power over them or initiative regarding them. The witness evidence heard in court did not provide any additional information about Mr Junot's duties. As to the other documents produced in court, the Criminal Court rightly found, for reasons which the Court of Appeal endorses, that they did not appear to have been in the defendants'possession at the time when the statement was broadcast. Moreover, they do not necessarily weaken Mr Junot's argument, since they include one memo he wrote on 15 April 1943 to the Prefect of Orléans about improving the food and bedding in the camps. It ends with the following sentence:'Although the management and administration of the camps does not form any part of my duties, I wish to bring this state of affairs to your attention ...' All these texts portray an official dedicated to fulfilling his functions of maintaining public order and defending the political interests of the government. They do not support, without overstating the case, an assertion that Mr Junot supervised the camps or played a role in the deportation of the Jews. The plea of good faith is accordingly rejected. ” The Court of Appeal noted the following in relation to the liability of the second applicant under section 93 - 3 of the 1982 Act : “... This section is intended to absolve the publishing director of an audiovisual operator of liability for live broadcasts whose contents he is unable effectively to monitor and control. But this cannot be said of a rolling news bulletin whose content may be monitored and controlled by making the necessary arrangements to that effect. It is significant in this respect that such steps were taken from the morning of 1 February onwards, when the content of the offending statement was amended. Moreover, it would be stretching the concept of prior fixing to contend that it must involve mechanical recording. Content may also be fixed by a communication method based on repetition which effectively requires it to be fixed but not necessarily by mechanical means. Therein lies the difference from'live'broadcasting involving no repetition.” Moreover, by way of civil remedy, the court ordered the following announcement to be read out on France Info every two hours during a twenty-four hour period in the month following the date when the judgment became final: “By a judgment of the Paris Court of Appeal (Eleventh Division – Section A), Mr Bertrand Gallicher, journalist, and Mr Michel Boyon, publishing director of Radio France, were each fined FRF 20,000 and ordered to pay damages for having defamed Mr Michel Junot, former Deputy Prefect of Pithiviers. This judgment follows the broadcasting, on 31 January and 1 February 1997, of news bulletins falsely alleging that Mr Michel Junot had played a part in the deportation of a thousand Jews and wrongly casting doubt on his membership of the Resistance.” On the subject of the broadcasting of the above announcement, the judgment reads as follows: “The Court is minded to uphold the order for the broadcasting of an announcement by France Info, which seems to be a remedy proportionate to the damage suffered but which the defence considers to be contrary to the provisions of Articles 6 and 10 of [ the Convention ] ... The Court does not agree, because freedom of expression under Article 10 of [ the Convention ] may be subject to such restrictions as may be necessary ... for the protection of the reputation of others, which is the case here. It is true that the effect of this order, as indicated by the defence, will be to reduce the'editorial space'available to France Info, but the written press are already in the same position and it is difficult to find a justification for discriminating between the various media in that respect. Lastly, it would be wrong to deny the claimant, whose rights are equally important, the concrete remedy of broadcasting an announcement purely on the ground that the audiovisual medium is different from the traditional medium of the written press. Further, nothing in the order to broadcast an announcement may be construed as infringing the right to a fair trial within the meaning of Article 6 of the Convention ...” 13. The applicants appealed on points of law. They submitted that the Court of Appeal had failed to apply the principle whereby the criminal law must be strictly interpreted, in that it had extended the scope of the presumption raised by section 93 - 3 of the 1982 Act (whereby the publishing director is liable as principal where “the content of the offending statement has been fixed prior to being communicated to the public”) to cover a “communication method based on repetition”. Relying in particular on Articles 6 and 10 of the Convention, they also complained of the order in the disputed ruling to broadcast the above announcement on France Info, the essence of their argument being that “there [was] no basis in legislation for the publication of a judicial announcement, which [was] nothing less than punishment for a civil wrong”. By a judgment of 8 June 1999, the Court of Cassation (Criminal Division) dismissed the appeal for the following reasons, inter alia : “... In finding the publishing director liable as principal for the offence created by section 93 - 3 of the Audiovisual Communication Act of 29 July 1982, the Court of Appeal both for its own and for adopted reasons ruled that the broadcasts containing the offending remarks had been, with the exception of the first bulletin, systematically broadcast on a rolling basis in exactly the same or in condensed form over a twenty-four hour period. It further found that this type of broadcasting allowed the publishing director to exercise control over the content before it was broadcast to the public. The court applied the law correctly in so ruling. The content of an announcement which is broadcast on a rolling basis must properly be construed as having been fixed prior to being communicated to the public within the meaning of section 93 - 3 [cited above]. ... ... although the criminal courts may order the publication of their judgments by way of penalty only if they are expressly authorised to do so by law, they may issue such an order by way of a remedy at the request of the civil party. Such a remedy, when ordered in a form achievable under the technical constraints of the medium in which publication is ordered, [does not breach] the Convention provisions cited in the appeal.” 14. The announcement referred to in paragraph 12 above was broadcast on France Info between 31 July and 1 August 1999. | This case concerned the conviction of radio journalists following the broadcasting on the radio over a twenty-four-hour period of a number of bulletins attributing to a former sous-préfet an active personal role in the deportation of a thousand Jews in 1942. The applicants complained in particular of a violation of their right to impart information as a result of the sanctions and measures imposed on them by the French courts. |
670 | Professionals | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1972 and lives in Pakruojis. A. The applicant ’ s conviction 6. In 1996 the applicant graduated from the Lithuanian Police Academy with a degree in law. He worked as an investigator at Šiauliai city police headquarters. 7. On 3 October 2000 the Šiauliai Regional Court established that from 1995 to 1996, when he had been working as an investigator, the applicant had several times solicited and sometimes succeeded in getting bribes for discontinuing criminal proceedings. The victims of the applicant ’ s crimes, who were suspects in criminal proceedings or their relatives, had been threatened and sometimes harassed sexually by the applicant. He would tell them that “ the case would end badly ( blogai baigsis ) ” if they did not meet his demands. The Šiauliai Regional Court found that such actions amounted to the intentional crimes of abuse of office (Article 285 of the Criminal Code) and bribery (Article 282 of the Criminal Code). The court also noted that the applicant had not acknowledged his guilt, but had instead tried to justify his criminal acts and avoid taking responsibility for them in any way possible. The trial court sentenced him to eight years ’ deprivation of liberty in a correctional labour colony under a strict regime, ordered the confiscation of all his property, and prohibited him from working in law enforcement or the justice system for five years. 8. The applicant ’ s conviction was upheld by the Court of Appeal on 29 June 2001 and by the Supreme Court on 18 December 2001. 9. In 2003, upon entry into force of the new Criminal Code, the Šiauliai Regional Court requalified the applicant ’ s sentence to four years and seven months ’ deprivation of liberty. The applicant was released from prison on 8 September 2003 after serving his sentence. 10. By a ruling of 17 June 2005 the Šiauliai Regional Court expunged the applicant ’ s conviction from his criminal record. The court noted that the applicant had served his sentence. He had been convicted of crimes of medium severity. The court also took account of the fact that the applicant had not committed any violations of administrative law, had been bringing up a child alone, had been described in positive terms by people at his place of residence and at his workplace, had drawn the right conclusions from the crimes he had committed, and had promised not to commit any crimes in the future. The ruling was not appealed against and became enforceable. 11. According to the applicant ’ s curriculum vitae, which he later submitted to the Bar Association, from May 2004 he worked as in-house lawyer and loan administrator in various private companies. B. The applicant ’ s admission to the position of trainee advocate and the disciplinary proceedings before the Advocates ’ Court of Honour 12. On 1 2 January 2007 the applicant wrote to the Lithuanian Bar Association, which regulates advocates ( lawyers admitted to the Bar, advokatas ), requesting to be admitted as a trainee advocate. He asked that an advocate V.S.B. be appointed as his supervisor in his work practice. The applicant also confirmed in writing that “ none of the grounds listed in the Law on the Bar prevented him from being put on the list of trainee advocates”. The applicant also submitted a written application ( advokato įskaitos lapas ) where he listed his former places of employment, stating that from 22 July 1991 until 15 March 1999 he had worked in the police and from 19 March 2004 in the private sector. There was no explanation about the period between 1999 and 2004. 13. The Bar Association placed the applicant ’ s name on the list of trainee advocates on 25 January 2007 and advocate V.S.B. was appointed as his supervisor. 14. On 13 June 2007 the Bar Association received a letter from a private person, L.G., informing it that the applicant had withheld information from the Bar Association that he had been previously convicted. 15. On 20 June 2007 the Bar Association held that by failing to inform it of the conviction, the applicant had withheld information relevant to assessing his reputation, and that therefore he had shown that his attitude towards the standing of the Lithuanian Bar and towards becoming a trainee advocate was not honest and respectful. The Bar Association considered that the applicant had breached points 1.3, 12.1 and 13.2 of the Lithuanian Code of Professional Ethics for Advocates (see paragraph 37 below – hereinafter, “ the Code of Ethics ” ), and disciplinary proceedings against him were therefore justified. The Bar Association also considered that the applicant ’ s supervisor, V.S.B., had likewise breached the Code of Ethics but that he would not face disciplinary proceedings owing to his long and positive professional record. 16. On 10 July 2007 the Disciplinary Committee of the Bar Association held that the applicant had committed a disciplinary violation by withholding information about his conviction by Šiauliai Regional Court on 3 October 2000 (see paragraph 7 above). The committee emphasised the fact that the applicant had not mentioned the conviction or his “ long prison sentence ” in his application to be admitted as a trainee advocate, his curriculum vitae or in the other documents submitted in support. Information about the conviction had been relevant for assessing his reputation. By withholding such information the applicant had acted dishonestly and disrespectfully, and had not protected the prestige of the Lithuanian Bar. The applicant had thus breached points 1.3, 12.1 and 13.2 of the Code of Ethics, which set out the necessary requirements for candidates to become trainee advocates ( see paragraph 37 below ). The case therefore had to be decided by the Court of Honour of Advocates (hereinafter – “ the Court of Honour ” ). 17. In a letter of 4 September 2007 to the Bar Association the chief prosecutor of Šiauliai Region wrote that the applicant lived in the city of Šiauliai and that in the course of his work as a trainee advocate he had interaction with the same investigators, prosecutors and judges with whom he had worked before committing his crimes and with those who had later investigated his crimes or examined his case in court. Even though the applicant had served his sentence, communication with those investigators, prosecutors and judges caused some strains at work in Šiauliai. The chief prosecutor stated that it would be better if the applicant could be prevented from practising law in the city or region of Šiauliai, even though the Law on the Bar did not provide for the possibility to restrict an advocate ’ s activity within or outside a certain area. 18. By a letter of 4 September 2007 the Court of Honour informed the applicant about the forthcoming hearing in his case, and invited him to participate in person or have an advocate represent his interests in those disciplinary proceedings. The applicant was present at the hearing, and explained that he had not hidden his conviction. The only reason he had not informed the Bar Association about it was because in his view there had been no requirement to do so. He also asked for the removal of the president of the Court of Honour, J.K., stating that the manner in which the latter had put certain questions to him showed he was biased. The request was refused as unfounded. 19. The Court of Honour, composed of the presiding advocate, J.K., and two other advocates, A.P. and G.P., met on 25 September and 25 October 2007. They postponed the hearing to a later date on each occasion. 20. On 23 November 2007 the Court of Honour rejected a request by the applicant to remove J.K. as unsubstantiated, while A.P. was replaced by another advocate, J.M. 21. The Court of Honour also held on the same day that the applicant had breached the Code of Ethics and imposed the disciplinary measure of ordering his removal from the list of trainee advocates, on the basis of Articles 13 § 1 and 54 § 2 of the Law on the Bar (see paragraph 34 below). In setting out its reasons the Court of Honour had regard to the crimes committed by the applicant and noted that during the criminal court proceedings he had expressed no remorse (see paragraph 7 above ). For the Court of Honour, even though the law did not directly require that a person disclose a prior conviction when submitting a request to become a trainee advocate, such an obligation stemmed from Article 8 ( 4 ) of the Law of the Bar, which required candidates to be of high moral character ( nepriekaištinga reputacija ). Similarly, point 13.2 of the Code of Ethics set out that an advocate had to act honestly and ethically, even if certain acts or behaviour that did not meet the requirements of the Law on the Bar or the Code of Ethics were not described specifically in that Code (see paragraph 37 below). The Court of Honour considered that the crimes which the applicant had committed whilst working in law enforcement had been cynical and had shown great disrespect towards society. Moreover, he had committed those crimes while working in the legal field. In the light of such considerations, the Court of Honour was convinced that the applicant, who had a university degree and had previously had a law - related job, had deliberately withheld information about his prior conviction, because he had been aware that, if information not only about his crimes but also about the manner in which he had committed them had come to light, then the Bar Association would have rejected his application to become a trainee advocate. Lastly, the Court of Honour noted that the profession of advocate was defined not only by legal acts, but also by certain ethical rules, historic practices and society ’ s legitimate expectations as to the assistance an advocate was to provide as part of his or her role. An advocate should therefore always adhere to the moral and legal standards and obligations, protect the professional honour and dignity of advocates and do nothing that would discredit the good name of the profession, the advocate ’ s oath, or the notion of justice. C. The Vilnius Regional Court ’ s decision 22. The applicant challenged the above decision before the Vilnius Regional Court. He argued, inter alia, that there had been procedural beaches and that the Court of Honour had not been impartial. He also maintained that the concept of high moral character applied to advocates was too strict when compared with the requirements for bailiffs or civil servants. 23. On 24 October 2008 the Vilnius Regional Court dismissed the applicant ’ s appeal as unfounded. It dealt with the applicant ’ s allegations about procedural violations by the Court of Honour by noting that that court had merely postponed the case on 25 September and 25 October 2007, without examining it on the merits (see paragraph 19 above). The applicant ’ s suggestion that the Court of Honour had issued a ruling on either of those dates that the applicant had not committed a disciplinary violation was therefore unfounded. Furthermore, J.K., the advocate who had been the president of the Court of Honour, had been questioned as a witness by the Vilnius Regional Court and had testified that he had not been biased against the applicant; he had only had an opinion about the particular actions performed by the applicant. Moreover, the applicant ’ s allegation about a lack of impartiality on the part of J.K. had also been dismissed as unfounded by the Court of Honour. Lastly, the change in the composition of that court when the case had been decided on 23 November 2007, removing A.P., a member said by the applicant to have been favourable to him (see paragraph 20 above), had not been a decisive factor because the court had been unanimous in its finding against the applicant. The Vilnius Regional Court thus dismissed the applicant ’ s request to summon for questioning advocate A.P., who, according to the applicant, had participated in the hearing when his case had gone before the Court of Honour. On the basis of the written evidence, the first - instance court established that A.P. had not taken part in the disciplinary proceedings against the applicant. 24. As to the question of the applicant ’ s reputation, the Vilnius Regional Court had particular regard to the crimes of which he had been convicted (see paragraph 7 above). While observing that the conviction had expired, the court noted that the crimes had been committed when the applicant had been working in law enforcement. The manner in which those crimes had been committed and their scale did not allow for the assertion that the applicant had automatically regained the status of being of high moral character immediately after the conviction had been expunged. Were it otherwise, society ’ s expectations as to the morals and ethics of representatives of the advocate ’ s profession would not be met. Only people of high moral character could be trusted to work in the process of the implementation of justice. In other words, the applicant ’ s actions had to be looked at to see not only if they had been in accordance with applicable laws, but also whether they had adhered to the requirements of professional ethics. That stemmed, inter alia, from Article 8 ( 4 ) and other provisions of the Law on the Bar, which provided that an advocate was liable to disciplinary sanctions, including disbarment, for breaches of professional ethics (see paragraph 34 below), and was something that had also been confirmed by the Supreme Court (see paragraph 43 below). 25. The Vilnius Regional Court concurred with the Court of Honour that the applicant had had a moral obligation to disclose important information such as a prior conviction to the Bar Association when submitting an application to become a trainee advocate, even though that requirement had not been explicitly stated on the application form (see paragraph 12 above, advokato įskaitos lapas ). The fact that, according to the applicant, his supervising advocate, several other advocates in Šiauliai and some members of the Bar Association Council had known about his prior conviction, did not absolve him from the obligation to provide information that was as comprehensive as possible when applying to the Bar, so that it would be possible to assess his reputation objectively and comprehensively. The Court of Honour had also been correct in holding that the applicant had consciously withheld that information because he had understood that the nature of his criminal acts would not have permitted him to be considered as a person of high moral character. In any case, if the applicant had had any doubts about whether the information about his prior conviction was relevant, he could have asked the Bar Association. Consequently, it had been legitimate for the Court of Honour to impose a disciplinary measure on the applicant by removing him from the list of trainee advocates. D. The Court of Appeal 26. The applicant appealed, arguing, inter alia, that the rules of the Code of Ethics had not applied to him at the time when he had requested to become a trainee advocate, given that they applied only to people who were already advocates and trainee advocates. According to the applicant, the president of the Court of Honour had clearly acknowledged to the Vilnius Regional Court that anyone who had disclosed a prior conviction had been admitted to the Bar and that the applicant would also have been admitted if he had done the same. The applicant also relied on Article 5 § 1 (2) of the Law on Bailiffs and Article 9 § 3 (1) of the Law on Civil Service (see paragraphs 41 and 42 below), implying that the definition of high moral character had been interpreted too broadly by the Court of Honour. The Bar Association asked that the applicant ’ s appeal be dismissed. 27. By a ruling of 7 April 2009 the Court of Appeal upheld the Vilnius Regional Court ’ s arguments and dismissed the applicant ’ s appeal. It found that no violations had been committed under Article 6 §§ 1 and 3 of the Convention as regards the fairness of the disciplinary proceedings. The rules regulating disciplinary proceedings did not prohibit postponing examination of a case. Moreover, the applicant had not challenged J.M. ’ s participation in the disciplinary proceedings. It would also have been irrelevant to summon A.P. as she had not sat in the Court of Honour when it had decided on the applicant ’ s case on 23 November 2007. 28. As to the merits of the complaint, the Vilnius Regional Court had been correct in its interpretation of the Law on the Bar and of established court practice in looking at the applicant ’ s crimes, their manner and scale not only in the light of the Law on the Bar, but also taking into account the rules for advocates ’ professional ethics. There had been no arguments in the applicant ’ s appeal to refute the first-instance court ’ s view of his crimes and behaviour in the light of those ethical requirements. Contrary to the applicant ’ s submission, the first - instance court had relied on Article 8 ( 4 ) of the Law on the Bar and on the Code of Ethics, not on Article 8 (1) of the Law on the Bar. The applicant ’ s argument that the first - instance court had applied Article 8 ( 1 ) of the amended Law on the Bar (see paragraph 35 below) retroactively was therefore unfounded. 29. Lastly, the Court of Appeal rejected the applicant ’ s argument that he had had no obligation to inform the Bar Association about his prior conviction. The Court of Honour had been correct in finding that such an obligation stemmed from the Law on the Bar and the Code of Ethics, which also applied to the applicant. The Court of Honour ’ s conclusion had been supported by point 12.1 of the Code of Ethics, which set out that the relationship between an advocate and the Bar was based on mutual respect and good - will assistance, and by point 13.2, which stated that an advocate must also adhere to the traditions and customs which corresponded to the common principles of ethics and decency (see paragraph 37 below). As a result, the Court of Honour had had grounds to impose a disciplinary penalty on the applicant and to strike his name off the list of trainee advocates on the basis of Articles 7 § 1 (4), 8 (4), 13 § 1 (1) and 35 of the Law on the Bar. E. Final ruling by the Supreme Court 30. The applicant lodged an appeal on points of law. He submitted, inter alia, that the prohibition on him practising law was in breach of his rights under Articles 8 and 14 of the Convention. He also argued that an expired conviction should not be an obstacle for him to become an advocate. He mentioned that the stricter requirements on reputation under the amendments to Article 8 (1) of the Law on the Bar of 15 April 2008 (see paragraph 35 below), should not have been applied to him retroactively. For the applicant, it was also wrong to apply the Code of Ethics to actions he had committed before becoming a trainee advocate. Lastly, he was also dissatisfied by how his case had been handled by the Court of Honour, relying on Article 6 § 1 of the Convention. He argued that all such considerations meant his case merited review by the Supreme Court because the uniform interpretation of the law was at stake. 31. On 13 May 2009 the Supreme Court rejected the appeal. It restated its settled case-law ( see paragraphs 43 to 47 below ) that advocates and trainee advocates were part of the justice system, and were therefore not only bound by laws, but also had to protect the spirit of the law and the ideals of justice and lawfulness. Ignorance of requirements of laws discredited the advocate ’ s profession and undermined its prestige. An advocate or trainee advocate who had breached imperative legal norms could not excuse that failing by alleging that he or she did not know the law or that the law was not sufficiently precise, because that person was bound to know the law and ethical requirements as part of his or her job. The activity of advocate was not only regulated by standards applicable to the general public, but also by special requirements set out in the laws regulating the advocate ’ s profession and by professional ethics. The requirements for the applicant ’ s behaviour, which were set out in the rules for professional ethics, were objectively necessary: only a person whose professional behaviour was beyond reproach could be entrusted to take part in the process of the implementation of justice. The notion of the implementation of justice would be discredited if any and every person was allowed to take part in that process, irrespective of his or her behaviour. The applicant ’ s case therefore did not give grounds for cassation appeal because it followed established case-law and was not relevant for developing it. 32. On 25 June 2009 the applicant attempted to submit another appeal on points of law. He drew the Supreme Court ’ s attention to the Šiauliai Regional Court ’ s ruling of 17 June 2005 to expunge his conviction (see paragraph 10 above). 33. On 10 July 2009 the Supreme Court found the appeal to be essentially identical to the earlier one and refused to admit it for examination. | These cases concerned the refusal by the Lithuanian Bar Association to include the two applicants in its list of advocates. The applicant in the first case was struck off the list of trainee advocates, after it emerged that he had failed to declare a previous conviction in his application to be included in the list. The applicant in the second case was refused re-admittance to the list of practicing advocates, on the grounds that she had previously been convicted of defrauding the publicly-funded legal aid system. Both applicants complained that the prohibition on their practicing law had violated their right to private life. |
130 | Domestic workers | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1978 and lives in Paris. 10. She arrived in France on 26 January 1994, aged 15 years and 7 months, with Mrs D., a French national of Togolese origin. She had a passport and a tourist visa. 11. It had been agreed that she would work at Mrs D.'s home until the cost of her air ticket had been reimbursed and that Mrs D. would attend to her immigration status and find her a place at school. In reality, the applicant became an unpaid housemaid for Mr and Mrs D. and her passport was taken from her. 12. In the second half of 1994, Mrs D. “lent” the applicant to Mr and Mrs B., who had two small children, so that she could assist the pregnant Mrs B. with household work. Mrs B. also had another daughter from a first marriage who stayed with her during the holidays and at weekends. The applicant lived at Mr and Mrs B.'s home, her father having given his consent. 13. On her return from the maternity hospital, Mrs B. told the applicant that she had decided to keep her. 14. The applicant subsequently became a general housemaid for Mr and Mrs B. She worked seven days a week, without a day off, and was occasionally and exceptionally authorised to go out on Sundays to attend mass. Her working day began at 7.30 a. m. , when she had to get up and prepare breakfast, dress the children, take them to nursery school or their recreational activities, look after the baby, do the housework and wash and iron clothes. In the evening she prepared dinner, looked after the older children, did the washing up and went to bed at about 10.30 p. m. In addition, she had to clean a studio flat, in the same building, which Mr B. had made into an office. The applicant slept on a mattress on the floor in the baby's room; she had to look after him if he woke up. 15. She was never paid, except by Mrs B.'s mother, who gave her one or two 500 French franc (FRF) notes. 16. In December 1995 the applicant was able to escape with the help of a Haitian national who took her in for five or six months. She looked after the latter's two children, was given appropriate accommodation and food, and received FRF 2,500 per month. 17. Subsequently, in obedience to her paternal uncle, who had been in contact with Mr and Mrs B., she returned to the couple, who had undertaken to put her immigration status in order. However, the situation remained unchanged: the applicant continued to carry out household tasks and look after the couple's children. She slept on a mattress on the floor of the children's bedroom, then on a folding bed, and wore second-hand clothes. Her immigration status had still not been regularised, she was not paid and did not attend school. 18. On an unspecified date, the applicant managed to recover her passport, which she entrusted to an acquaintance of Mr and Mrs B. She also confided in a neighbour, who alerted the Committee against Modern Slavery ( Comité contre l'esclavage moderne ), which in turn filed a complaint with the prosecutor's office concerning the applicant's case. 19. On 28 July 1998 the police raided Mr and Mrs B.'s home. 20. The couple were prosecuted on charges of having obtained from July 1995 to July 1998 the performance of services without payment or in exchange for payment that was manifestly disproportionate to the work carried out, by taking advantage of that person's vulnerability or state of dependence; with having subjected an individual to working and living conditions that were incompatible with human dignity by taking advantage of her vulnerability or state of dependence; and with having employed and maintained in their service an alien who was not in possession of a work permit. 21. On 10 June 1999 the Paris tribunal de grande instance delivered its judgment. 22. It found that the applicant's vulnerability and dependence in her relationship with Mr and Mrs B. was proved by the fact that she was unlawfully resident in France, was aware of that fact and feared arrest, that Mr and Mrs B. nurtured that fear while promising to secure her leave to remain – a claim that was confirmed by her uncle and her father – and by the fact that she had no resources, no friends and almost no family to help her. 23. As to the failure to provide any or adequate remuneration, the court noted that it had been established that the young woman had remained with Mr and Mrs B. for several years, was not a member of their family, could not be regarded as a foreign au pair who had to be registered and given free time in order to improve her language skills, was kept busy all day with housework, did not go to school and was not training for a profession and that, had she not been in their service, Mr and Mrs B. would have been obliged to employ another person, given the amount of work created by the presence of four children in the home. It therefore concluded that the offence laid down in Article 225-13 of the Criminal Code (see paragraph 46 below) was made out. 24. The court also found it established that Mr and Mrs B. were employing an alien who was not in possession of a work permit. 25. The court noted that the parties had submitted differing accounts concerning the allegations that the working and living conditions were incompatible with human dignity. It found that the applicant clearly worked long hours and did not enjoy a day off as such, although she was given permission to attend mass. It noted that a person who remained at home with four children necessarily began his or her work early in the morning and finished late at night, but had moments of respite during the day; however, the scale of Mrs B.'s involvement in this work had not been established. 26. The court concluded that, while it seemed established that employment regulations had not been observed in respect of working hours and rest time, this did not suffice to consider that the working conditions were incompatible with human dignity, which would have implied, for example, a furious pace, frequent insults and harassment, the need for particular physical strength that was disproportionate to the employee's constitution and having to work in unhealthy premises, which had not been the case in this instance. 27. As to the applicant's accommodation, the court noted that Mr and Mrs B., who were well-off, had not seen fit to set aside an area for the applicant's personal use and that, although this situation was regrettable and indicated their lack of consideration for her, her living conditions could not be held to infringe human dignity, given that a number of people, especially in the Paris region, did not have their own rooms. Accommodation which infringed human dignity implied an unhygienic, unheated room, with no possibility of looking after one's basic hygiene, or premises which were so far below the applicable norms that occupation would be dangerous. 28. Accordingly, the court found that the offence laid down in Article 225 ‑ 14 of the Criminal Code (see paragraph 46 below) had not been made out. Nonetheless, the judges concluded that the offences of which Mr and Mrs B. were convicted were incontestably serious and were to be severely punished, particularly as the couple considered that they had treated the applicant quite properly. Accordingly, they sentenced them to twelve months'imprisonment each, of which seven months were suspended, imposed a fine of FRF 100,000 and ordered them to pay, jointly and severally, FRF 100,000 to the applicant in damages. In addition, Mr and Mrs B. forfeited their civic, civil and family rights for three years. 29. Mr and Mrs B. appealed against this decision. 30. On 20 April 2000 the Paris Court of Appeal gave an interlocutory judgment ordering further investigations. 31. On 19 October 2000 it delivered its judgment on the merits. 32. The Court of Appeal found that the additional investigation had made it possible to confirm that the applicant had arrived in France aged 15 years and 7 months, in possession of a passport and a three-month tourist visa. During the period that she lived with Mrs D., from January to October 1994, she had been employed by the latter, firstly, to do housework, cook and look after her child, and, secondly, in the latter's clothing business, where she also did the cleaning and returned to the rails clothes that customers had tried on, without remuneration. 33. Around October 1994 the applicant had spent a few days at Mr and Mrs B.'s home, shortly before Mrs B. gave birth to her fourth child. She travelled by underground to Mr and Mrs B.'s home every day and returned to Mrs D.'s house in the evening to sleep. 34. In July / August 199 4 she was “lent” to Mr and Mrs B., and stayed in their home until December 1995, when she left for Mrs G.'s home, where she was remunerated for her work and given accommodation. She had returned to Mr and Mrs B. in May / June 1996 on her uncle's advice. 35. The Court of Appeal noted that it had been established that the applicant was an illegal immigrant and had not received any real remuneration. Further, it noted that it appeared that the applicant was proficient in French, which she had learnt in her own country. In addition, she had learnt to find her way around Paris in order, initially, to go from Mrs D.'s home to the latter's business premises, and later to travel to Maisons-Alfort, where Mrs G. lived, and finally to return to Mr and Mrs B.'s home. 36. She had a degree of independence, since she took the children to the locations where their educational and sports activities were held, and subsequently collected them. She was also able to attend a Catholic service in a church near Mr and Mrs B.'s home. In addition, she left the house to go shopping, since it was on one of those occasions that she had met Mrs G. and agreed with her to go to the latter's home. 37. The Court of Appeal further noted that the applicant had had an opportunity to contact her uncle by telephone outside Mr and Mrs B .'s home and to pay for calls from a telephone box. She had met her father and her uncle and had never complained about her situation. 38. Furthermore, Mrs B.'s mother confirmed that the applicant spoke good French and that she was in the habit of giving her small sums of money for family celebrations. She had frequently had the applicant and her grandchildren to stay in her country house and had never heard her complain of ill-treatment or contempt, although she had been free to express her views. 39. The applicant's uncle stated that she was free, among other things, to leave the house and call him from a telephone box, that she was appropriately dressed, in good health and always had some money, which could not have come from anyone but Mr and Mrs B. He had offered to give her money, but she had never asked for any. He added that he had raised this question with Mrs B., who had told him that a certain amount was set aside every month in order to build up a nest egg for the applicant, which would be given to her when she left, and that the girl was aware of this arrangement. He stated that, on the basis of what he had been able to observe and conclude from his conversations with the applicant and with Mrs B., the girl had not been kept as a slave in the home in which she lived. 40. The Court of Appeal ruled that the additional investigations and hearings had shown that, while it did appear that the applicant had not been paid or that the payment was clearly disproportionate to the amount of work carried out (although the defendants'intention to create a nest egg that would be handed over to her on departure had not been seriously disputed), in contrast, the existence of working or living conditions that were incompatible with human dignity had not been established. It also considered that it had not been established that the applicant was in a state of vulnerability or dependence since, by taking advantage of her ability to come and go at will, contacting her family at any time, leaving Mr and Mrs B.'s home for a considerable period and returning without coercion, the girl had, in spite of her youth, shown an undeniable form of independence, and vulnerability could not be established merely on the basis that she was an alien. Accordingly, the Court of Appeal acquitted the defendants on all the charges against them. 41. The applicant appealed on points of law against that judgment. No appeal was lodged by the Principal Public Prosecutor's Office. 42. In a letter of 27 October 2000 to the Chair of the Committee against Modern Slavery, the public prosecutor attached to the Paris Court of Appeal wrote: “In your letter of 23 October 2000 you asked me to inform you whether the public prosecution office under my direction has lodged an appeal on points of law against the judgment delivered on 19 October 2000 by the Twelfth Division of the court which heard the appeal in the criminal proceedings against Mr and Mrs B. The Court of Appeal's decision to acquit the defendants of the two offences of insufficiently remunerating a person in a vulnerable position and subjecting a person in a vulnerable or dependent state to demeaning working conditions was based on an assessment of elements of pure fact. Since the Court of Cassation considers that such assessments come within the unfettered discretion of the trial courts, an appeal on points of law could not be effectively argued. That is why I have not made use of that remedy.” 43. The Court of Cassation delivered its judgment on 11 December 2001. It ruled as follows: “All judgments must contain reasons justifying the decision reached; giving inadequate or contradictory reasons is tantamount to giving no reasons. After an investigation into the situation of [the applicant], a young Togolese national whom they had employed and lodged in their home since she was 16, V. and A.B. were directly summoned before the criminal court for, firstly, taking advantage of a person's vulnerability or dependent state to obtain services without payment or any adequate payment, contrary to Article 225-13 of the Criminal Code and, secondly, for subjecting that person to working or living conditions incompatible with human dignity, contrary to Article 225-14 of the same Code. In acquitting the defendants of the two above-mentioned offences and dismissing the civil party's claims in connection therewith, the appeal court, having noted that [the applicant] was a foreign minor, without a residence or work permit and without resources, nonetheless stated that her state of vulnerability and dependence, a common constituent element of the alleged offences, had not been established, given that the girl enjoyed a certain freedom of movement and that vulnerability could not be established merely on the basis that she was an alien. Furthermore, in finding that the offence defined in Article 225-13 of the Criminal Code had not been made out, the court added that'it does appear that the applicant has not been paid or that the payment was clearly disproportionate to the amount of work carried out (although the defendants'intention to build up a nest egg that would be handed over to her on departure has not been seriously disputed)'. Finally, in acquitting the defendants of the offence set out in Article 225-14 of the Criminal Code, the courts found that subjection to working or living conditions incompatible with human dignity'had not been established'. However, in ruling in this way, with reasons that were inadequate and ineffective with regard to the victim's state of vulnerability and dependence and contradictory with regard to her remuneration, and without specifying the factual elements which established that her working conditions were compatible with human dignity, the Court of Appeal failed to draw from its findings the legal conclusions that were required in the light of Article 225-13 of the Criminal Code and did not justify its decision in the light of Article 225-14 of that Code. The judgment must therefore be quashed. For these reasons, [The Court of Cassation] quashes the above-mentioned judgment of the Paris Court of Appeal dated 19 October 2000 but only in respect of the provisions dismissing the civil party's requests for compensation in respect of the offences provided for in Articles 225-13 and 225-14 of the Criminal Code, all other provisions being expressly maintained, and instructs that the case be remitted, in accordance with the law, for a rehearing of the matters in respect of which this appeal has been allowed. ...” 44. The Versailles Court of Appeal, to which the case was subsequently referred, delivered its judgment on 15 May 2003. It ruled, inter alia, as follows: “As was correctly noted at first instance, the evidence shows that [ the applicant ], an alien who arrived in France at the age of 16, worked for several years for Mr and Mrs B., carrying out household tasks and looking after their three, and subsequently four, children for seven days a week, from 7 a. m. to 10 p. m. , without receiving any remuneration whatsoever; contrary to the defendants'claims, she was not considered a family friend, since she was obliged to follow Mrs B.'s instructions regarding her working hours and the work to be done, and was not free to come and go as she pleased. In addition, there is no evidence to show that a nest egg has been built up for her, since the list of payments allegedly made by the defendants is in Mrs B.'s name. It was only at the hearing before the tribunal de grande instance that the defendants gave the victim the sum of 50,000 francs. Finally, far from showing that [the applicant] was happy to return to Mr and Mrs B.'s home, the conditions in which she did so after an absence of several months are, on the contrary, indicative of the pressure she had been subjected to by her family and of her state of resignation and emotional disarray. With regard to the victim's state of dependence and vulnerability during the period under examination, it should be noted that this young girl was a minor, of Togolese nationality, an illegal immigrant in France, without a passport, more often than not without money, and that she was able to move about only under Mrs B.'s supervision for the purposes of the children's educational and sports activities. Accordingly, it was on appropriate grounds, to which this court subscribes, that the court at first instance found that the constituent elements of the offence punishable under Article 225-13 of the Criminal Code were established in respect of the defendants. With regard to the offence of subjecting a person in a vulnerable or dependent position to working or living conditions that are incompatible with human dignity : As the court of first instance correctly noted, carrying out household tasks and looking after children throughout the day could not by themselves constitute working conditions incompatible with human dignity, this being the lot of many mothers; in addition, the civil party's allegations of humiliating treatment or harassment have not been proved. Equally, the fact that [the applicant] did not have an area reserved for her personal use does not mean that the accommodation was incompatible with human dignity, given that Mr and Mrs B's own children shared the same room, which was in no way unhygienic. Accordingly, the constituent elements of this second offence have not been established in respect of Mr and Mrs B. Independently of the sums due to [the applicant] in wages and the payment of 50,000 francs in a belated gesture of partial remuneration, Mr B., whose intellectual and cultural level was such as to enable him to grasp fully the unlawfulness of his conduct, but who allowed the situation to continue, probably through cowardice, has, together with Mrs B., caused [the applicant] considerable psychological trauma, for which should be awarded 15,245 euros in compensation, as assessed by the court of first instance.” 45. On 3 October 2003 the Paris industrial tribunal delivered judgment following an application submitted by the applicant. It awarded her 31,238 euros (EUR) in respect of arrears of salary, EUR 1,647 in respect of the notice period and EUR 164 in respect of holiday leave. i. make slavery and trafficking in human beings, and also forced marriage, offences in their criminal codes; ii. strengthen border controls and harmonise policies for police cooperation, especially with respect to minors; ... vi. protect the rights of victims of domestic slavery by: a. generalising the issuing of temporary and renewable residence permits on humanitarian grounds; b. taking steps to provide them with protection and with social, administrative and legal assistance; c. taking steps for their rehabilitation and their reintegration, including the creation of centres to assist, among others, victims of domestic slavery; d. developing specific programmes for their protection; e. increasing victims'time limits for bringing proceedings for offences of slavery; f. establishing compensation funds for the victims of slavery; ...” (c) Recommendation 1663 (2004), adopted on 22 June 2004 “1. The Parliamentary Assembly is dismayed that slavery continues to exist in Europe in the twenty-first century. Although, officially, slavery was abolished over 150 years ago, thousands of people are still held as slaves in Europe, treated as objects, humiliated and abused. Modern slaves, like their counterparts of old, are forced to work (through mental or physical threat) with no or little financial reward. They are physically constrained or have other limits placed on their freedom of movement and are treated in a degrading and inhumane manner. 2. Today's slaves are predominantly female and usually work in private households, starting out as migrant domestic workers, au pairs or'mail-order brides'. Most have come voluntarily, seeking to improve their situation or escaping poverty and hardship, but some have been deceived by their employers, agencies or other intermediaries, have been debt-bonded and even trafficked. Once working (or married to a'consumer husband'), however, they are vulnerable and isolated. This creates ample opportunity for abusive employers or husbands to force them into domestic slavery. ... 5. The Council of Europe must have zero tolerance for slavery. As an international organisation defending human rights, it is the Council of Europe's duty to lead the fight against all forms of slavery and trafficking in human beings. The Organisation and its member States must promote and protect the human rights of the victim and ensure that the perpetrators of the crime of domestic slavery are brought to justice so that slavery can finally be eliminated from Europe. 6. The Assembly thus recommends that the Committee of Ministers: i. in general : a. bring the negotiations on the Council of Europe draft convention on action against trafficking in human beings to a rapid conclusion; b. encourage member States to combat domestic slavery in all its forms as a matter of urgency, ensuring that holding a person in any form of slavery is a criminal offence in all member States; c. ensure that the relevant authorities in the member States thoroughly, promptly and impartially investigate all allegations of any form of slavery and prosecute those responsible; ... ii. as concerns domestic servitude: a. elaborate a charter of rights for domestic workers, as already recommended in Recommendation 1523 (2001) on domestic slavery. Such a charter, which could take the form of a Committee of Ministers'recommendation or even of a convention, should guarantee at least the following rights to domestic workers: – the recognition of domestic work in private households as'real work', that is, to which full employment rights and social protection apply, including the minimum wage (where it exists), sickness and maternity pay as well as pension rights; – the right to a legally enforceable contract of employment setting out minimum wages, maximum hours and responsibilities; – the right to health insurance; – the right to family life, including health, education and social rights for the children of domestic workers; – the right to leisure and personal time; – the right for migrant domestic workers to an immigration status independent of any employer, the right to change employer and to travel within the host country and between all countries of the European Union and the right to the recognition of qualifications, training and experience obtained in the home country; ...” 50. Council of Europe Convention on Action against Trafficking in Human Beings, opened for signature on 16 May 2005 (extracts) Preamble “ ... Considering that trafficking in human beings may result in slavery for victims; Considering that respect for victims'rights, protection of victims and action to combat trafficking in human beings must be the paramount objectives; Considering that all actions or initiatives against trafficking in human beings must be non-discriminatory, take gender equality into account as well as a child-rights approach; ... Bearing in mind the following recommendations of the Parliamentary Assembly of the Council of Europe: ... 1663 (2004) Domestic slavery: servitude, au pairs and mail-order brides; ... ” Article 1 – Purposes of the Convention “1. The purposes of this Convention are: (a) to prevent and combat trafficking in human beings, while guaranteeing gender equality; (b) to protect the human rights of the victims of trafficking, design a comprehensive framework for the protection and assistance of victims and witnesses, while guaranteeing gender equality, as well as to ensure effective investigation and prosecution; ... ” Article 4 – Definitions “ For the purposes of this Convention: (a )'Trafficking in human beings'shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; (b) The consent of a victim of'trafficking in human beings'to the intended exploitation set forth in sub - paragraph (a) of this Article shall be irrelevant where any of the means set forth in sub - paragraph (a) have been used; (c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered'trafficking in human beings'even if this does not involve any of the means set forth in sub -paragraph (a) of this Article; (d)'Child'shall mean any person under eighteen years of age; (e)'Victim'shall mean any natural person who is subject to trafficking in human beings as defined in this Article.” Article 19 – Criminalisation of the use of services of a victim “Each Party shall consider adopting such legislative and other measures as may be necessary to establish as criminal offences under its internal law, the use of services which are the object of exploitation as referred to in Article 4 paragraph ( a ) of this Convention, with the knowledge that the person is a victim of trafficking in human beings.” 51. Other international conventions (a) Forced Labour Convention, adopted on 28 June 1930 by the General Conference of the International Labour Organisation (ratified by France on 24 June 1937 ) Article 2 “ 1. For the purposes of this Convention the term'forced or compulsory labour'shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2. Nevertheless, for the purposes of this Convention the term'forced or compulsory labour'shall not include: (a) Any work or service exacted in virtue of compulsory military service laws for work of a purely military character; (b) Any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; (c) Any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; (d) Any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; (e) Minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services.” Article 3 “ For the purposes of this Convention the term'competent authority'shall mean either an authority of the metropolitan country or the highest central authority in the territory concerned.” Article 4 “1. The competent authority shall not impose or permit the imposition of forced or compulsory labour for the benefit of private individuals, companies or associations. 2. Where such forced or compulsory labour for the benefit of private individuals, companies or associations exists at the date on which a Member's ratification of this Convention is registered by the Director-General of the International Labour Office, the Member shall completely suppress such forced or compulsory labour from the date on which this Convention comes into force for that Member.” (b) Slavery Convention, signed in Geneva on 25 September 1926, which came into force on 9 March 1927, in accordance with the provisions of Article 12 Article 1 “ For the purpose of the present Convention, the following definitions are agreed upon: 1. Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised; 2. The slave trade includes all acts involved in the capture, acquisition or disposal of a person with intent to reduce him to slavery; all acts involved in the acquisition of a slave with a view to selling or exchanging him; all acts of disposal by sale or exchange of a slave acquired with a view to being sold or exchanged, and, in general, every act of trade or transport in slaves. ” Article 4 “ The High Contracting Parties shall give to one another every assistance with the object of securing the abolition of slavery and the slave trade. ” Article 5 “ The High Contracting Parties recognise that recourse to compulsory or forced labour may have grave consequences and undertake, each in respect of the territories placed under its sovereignty, jurisdiction, protection, suzerainty or tutelage, to take all necessary measures to prevent compulsory or forced labour from developing into conditions analogous to slavery. It is agreed that: 1. Subject to the transitional provisions laid down in paragraph 2 below, compulsory or forced labour may only be exacted for public purposes; 2. In territories in which compulsory or forced labour for other than public purposes still survives, the High Contracting Parties shall endeavour progressively and as soon as possible to put an end to the practice. So long as such forced or compulsory labour exists, this labour shall invariably be of an exceptional character, shall always receive adequate remuneration, and shall not involve the removal of the labourers from their usual place of residence; 3. In all cases, the responsibility for any recourse to compulsory or forced labour shall rest with the competent central authorities of the territory concerned.” (c) Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, adopted on 30 April 1956 and which came into force in respect of France on 26 May 1964 Section I. Institutions and practices similar to slavery Article 1 “ Each of the States Parties to this Convention shall take all practicable and necessary legislative and other measures to bring about progressively and as soon as possible the complete abolition or abandonment of the following institutions and practices, where they still exist and whether or not they are covered by the definition of slavery contained in Article 1 of the Slavery Convention signed at Geneva on 25 September 1926: (a) Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined; (b) Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status; ... (d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.” (d) International Convention on the Rights of the Child, dated 20 November 1989, which came into force in respect of France on 6 September 1990 Article 19 “ 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. ” Article 32 “ 1. States Parties recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development. 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present Article. To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: (a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present Article. ” Article 36 “ States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare.” | The applicant, a Togolese national having arrived in France in 1994 with the intention to study, was made to work instead as a domestic servant in a private household in Paris. Her passport confiscated, she worked without pay, 15 hours a day, without a day off, for several years. The applicant complained about having been a domestic slave. |
120 | Domestic violence / abuse | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 200 1 and lives in Bucharest. His parents, C.I. and D.D., separated in April 2004 and divorced in September 2004, mainly because of D.D. ’ s abusive behaviour towards his wife and their son. The applicant remained with his mother. On 27 February 2004 C.I. called the hotline of the Bucharest Child Protection Authority ( Direcţia Generală de Asistenţă Socială şi Protecţia Copilului ) to report the domestic abuse she and the applicant had been suffering at the hands of D.D. Since then, the case has been monitored by the Authority. On 7 October 2008 the Child Protection Authority certified that since 2004 it had included the applicant in a psychological counselling programme. The Child protection Authority issued the following statement concerning the monitoring of the applicant ’ s case (on 29 August 2005 for the purpose of court proceedings): “Mrs [C.I.] kept contact with our institution, the case being monitored by the Legal Counselling Service (legal counselling concerning eviction from home ... ) as well as by the Service concerning emergency relocation and the Centre for Psychological Counselling for Parents.” 6. On 5 March, 16 April, 7 May and 30 June 2004 C.I. lodged complaints with the Bucharest Police about the alleged violence inflicted by her husband on the applicant. No action was taken on these complaints. On 1 July 2004 C.I. lodged a new complaint with the police concerning the alleged abuse. The police heard evidence from witnesses on behalf of the applicant and obtained information about the applicant ’ s situation from the centre where he and his mother had been relocated. Based on the evidence gathered, the police sent the file to the prosecutor ’ s office attached to the Bucharest District Court (“the prosecutor”). 7. On 1 November 2005 the prosecutor instituted a criminal investigation against D.D. It heard evidence from C.I., D.D. and six witnesses and examined the expert reports concerning the applicant ’ s and D.D. ’ s psychological evaluations. It concluded that the applicant had suffered trauma during his early childhood because of his father who had done everything he could to torment him and to make him suffer. 8. On 27 December 2007 the prosecutor indicted D.D. for abusive behaviour towards his son. 9. The Bucharest District Court heard evidence from a psychologist who had observed the applicant during therapy, from C.I. and other witnesses, as well as from D.D., the last mentioned denying having hurt his son. C.I. did not request damages on behalf of the applicant. In a decision of 9 June 2008 the court acquitted D.D. on the grounds that his occasionally inappropriate behaviour towards the applicant had not been severe enough to constitute a crime. This decision was upheld by the County Court on 19 February 2009, but on 19 June 2009 the Bucharest Court of Appeal quashed this latter decision and remitted the case to the County Court, as it considered that the lower courts should have heard evidence from the applicant and relied on the psychological reports. 10. On 14 December 2009 the County Court held a private hearing and interviewed the applicant. He told the judges how D.D. used to hit him, lock him in a small room without lights, throw water on him while he was sleeping and call him names. He stated that D.D. had often fought with his mother and that sometimes he had thrown the applicant ’ s maternal grandmother and aunt – who were bringing food to the child – out of their apartment. The applicant told the court that he did not want to live with D.D. or even meet him on the street. He was persuaded that D.D. would want to hurt him. He stated that he wished that D.D. would be punished for what he had done to him. 11. In a decision rendered on 22 December 2009 the County Court convicted D.D. of ill-treatment inflicted on a minor and sentenced him to a suspended penalty of four years ’ imprisonment. It considered that the evidence in the prosecution file, in particular the psychological reports and the testimony given by a psychologist, confirmed that the child had suffered trauma as a consequence of his father ’ s abusive behaviour. The court also noted that C.I. had not requested damages on behalf of the applicant (see paragraph 9 above). Based on Article 17 of the Code of Criminal Procedure ( “the CCP”, see paragraph 24 below), the court, on its own initiative, awarded the applicant 20,000 Romanian lei (RON) in respect of non - pecuniary damage. 12. Upon an appeal on points of law lodged by D.D., on 7 April 2010 the Bucharest Court of Appeal remitted the case to the County Court and ordered that court to obtain an expert examination of the applicant by the Forensic Medicine Institute. 13. On 26 April 2012 the County Court rendered a new decision. Based on the evidence before it, notably the expert evaluations, psychologist ’ s testimony, witness statements, as well as the parents ’ and the applicant ’ s statements, the County Court considered it established that D.D. had physically and verbally abused his child from 2002 to 2004. It stated: “The County Court notes that the acts perpetrated by [D.D.] cannot be considered as isolated and random acts of physical punishment which parents can administer to their minor children, but became more severe and caused childhood attachment troubles .” 14. D.D. was convicted of ill-treatment inflicted on a minor. He was given a suspended sentence of one year ’ s imprisonment; in addition, his right to be elected and his parental rights were suspended during the sentence and for two additional years. 15. When sentencing D.D., the court took into account the undue length of the criminal proceedings and that there had been significant periods of inactivity by the authorities involved, in particular by the investigators and the Forensic Medicine Institute. 16. No award of damages was made. The court did not give any explanation in its judgment as to why it decided not to award compensation to the applicant. 17. All parties appealed on points of law. Relying on Article 17 of the CCP (see paragraph 24 below), the applicant and the prosecutor complained notably about the fact that the County Court had not awarded damages. 18. The Bucharest Court of Appeal examined the parties ’ submissions in the light of the evidence before it. It reaffirmed that D.D. had physically and verbally abused his child; his sentence was recalculated based on the same criteria, including the reduction as a remedy for the length of the trial. The court accordingly increased the sentence to three years ’ imprisonment and suspended it. The additional penalty of restricting D.D. ’ s right to be elected and his parental rights was maintained. 19. The court further considered that in so far as both the prosecutor and the applicant had limited their initial appeals to solely the criminal aspects of the District Court ’ s decision of 9 June 2008, the County Court had been right in not awarding damages on its own initiative. The relevant part of the decision reads as follows: “In so far as the prosecutor ’ s office and the injured party argued that the [County Court] should have examined the award of damages on its own initiative because the injured party was a minor, it is to be observed from the content of the decision under review that both the prosecutor ’ s office and the injured party had expressly limited their appeals to the criminal aspects of the case. In this situation, the [County Court] was right in limiting its examination strictly to the issues brought before it.” 20. The Court of Appeal rendered its final decision on 1 November 2012 and rectified the text of the operative part on 22 November 2012. | This case concerned the proceedings brought by the applicant against his father for domestic abuse. The proceedings in question had lasted over eight years and ended in the father’s conviction of physically and mentally abusing his child. The applicant complained that those proceedings had been ineffective and that he had not been awarded damages. In particular, the domestic courts had found at last instance that they did not have to examine the issue of compensation as neither he nor the prosecutor had made such a request before the lower courts. |
566 | Prohibition of a Rom from standing for election | I. THE CIRCUMSTANCES OF THE CASE A. Relevant background to the present case 6. The Constitution of Bosnia and Herzegovina ( hereinafter referred to as “the Constitution” or “the State Constitution” when it is necessary to distinguish it from the Entity Constitutions ) is an annex to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (“the Dayton Agreement”), initialled at Dayton on 21 November 1995 and signed in Paris on 14 December 1995. Since it was part of a peace treaty, the Constitution was drafted and adopted without the application of procedures which could have provided democratic legitimacy. It constitutes the unique case of a constitution which was never officially published in the official languages of the country concerned but was agreed and published in a foreign language, English. The Constitution confirmed the continuation of the legal existence of Bosnia and Herzegovina as a State, while modifying its internal structure. In accordance with the Constitution, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The Dayton Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard (Article V of Annex 2 to the Dayton Agreement ). Pursuant to an arbitral award of 5 March 1999, the Brčko District has been created under the exclusive sovereignty of the State. 7. In the Preamble to the Constitution, Bosniacs, Croats and Serbs are described as “constituent peoples”. At the State level, power-sharing arrangements were introduced, making it impossible to adopt decisions against the will of the representatives of any “constituent people”, including a vital interest veto, an Entity veto, a bicameral system (with a House of Peoples composed of five Bosniacs and the same number of Croats from the Federation of Bosnia and Herzegovina and five Serbs from the Republika Srpska) as well as a collective Presidency of three members with a Bosniac and a Croat from the Federation of Bosnia and Herzegovina and a Serb from the Republika Srpska ( for more details, see paragraphs 12 and 22 below ). B. The present case 8. The applicants were born in 1956 and 1943 respectively. They have held and still hold prominent public positions. Mr Sejdić is now the Roma Monitor of the Organisation on Security and Cooperation in Europe ( OSCE ) Mission to Bosnia and Herzegovina, having previously served as a member of the Roma Council of Bosnia and Herzegovina (the highest representative body of the local Roma community) and a member of the Advisory Committee for Roma (a joint body comprising representatives of the local Roma community and of the relevant ministries). Mr Finci is now serving as the Ambassador of Bosnia and Herzegovina to Switzerland, having previously held positions that included being the President of the Inter-Religious Council of Bosnia and Herzegovina and the Head of the State Civil Service Agency. 9. The applicants describe themselves to be of Roma and Jewish origin respectively. Since they do not declare affiliation with any of the “constituent peoples”, they are ineligible to stand for election to the House of Peoples (the second chamber of the State Parliament) and the Presidency (the collective Head of State). Mr Finci obtained official confirmation in this regard on 3 January 2007. | The applicants – the first one of Roma origin and the second one a Jew – alleged that Bosnian law prevented them from running for the Presidency and the House of Peoples of the Parliamentary Assembly because of their ethnic origins. |
776 | Forcible medical intervention or treatment | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1965 and lives in Cologne ( Germany ). 10. The facts of the case, as submitted by the parties, may be summarised as follows. A. Investigation proceedings 11. On 29 October 1993 four plain-clothes policemen observed the applicant on at least two different occasions take a tiny plastic bag (a so ‑ called “ bubble ” ) out of his mouth and hand it over to another person in exchange for money. Believing that these bags contained drugs, the police officers went to arrest the applicant, whereupon he swallowed another bubble he still had in his mouth. 12. The police officers did not find any drugs on the applicant. Since further delay might have frustrated the conduct of the investigation, the public prosecutor ordered that emetics ( Brechmittel ) be administered to the applicant by a doctor in order to provoke the regurgitation of the bag ( Exkorporation ). 13. The applicant was taken to a hospital in Wuppertal-Elberfeld. According to the Government, the doctor who was to administer the emetics questioned the applicant about his medical history (a procedure known as obtaining an anamnesis). This was disputed by the applicant, who claimed that he had not been questioned by a doctor. As the applicant refused to take the medication necessary to provoke vomiting, he was held down and immobilised by four police officers. The doctor then forcibly administered to him a salt solution and the emetic ipecacuanha syrup through a tube introduced into his stomach through the nose. In addition, the doctor injected him with apomorphine, another emetic that is a derivative of morphine. As a result, the applicant regurgitated one bubble containing 0.2182 grams of cocaine. Approximately an hour and a half after being arrested and taken to the hospital, the applicant was examined by a doctor and declared fit for detention. 14. When visited by the police in his cell two hours after being given the emetics, the applicant, who was found not to speak German, said in broken English that he was too tired to make a statement about the alleged offence. 15. Pursuant to an arrest warrant that had been issued by the Wuppertal District Court, the applicant was remanded in custody on 30 October 1993. 16. The applicant maintained that for three days following the treatment to which he was subjected he was only able to drink soup and that his nose repeatedly bled for two weeks because of wounds he had received when the tube was inserted. This was disputed by the Government, who stressed that the applicant had failed to submit a medical report to prove his allegation. 17. Two and a half months after the administration of the emetics, the applicant underwent a gastroscopy in the prison hospital after complaining of continuous pain in the upper region of his stomach. He was diagnosed as suffering from irritation in the lower area of the oesophagus caused by the reflux of gastric acid. The medical report did not expressly associate this condition with the forced administration of the emetics. 18. The applicant was released from prison on 23 March 1994. He claimed that he had had to undergo further medical treatment for the stomach troubles he had suffered as a result of the forcible administration of the emetics. He did not submit any documents to confirm that he had received medical treatment. The Government, for their part, maintained that the applicant had not received any medical treatment. B. Domestic court proceedings 19. In his submissions dated 20 December 1993 to the Wuppertal District Court, the applicant, who was represented by counsel throughout the proceedings, objected to the use at his trial of the evidence obtained through the administration of emetics, a method he considered to be illegal. By using force to provoke the regurgitation of the bubble of cocaine, the police officers and the doctor concerned were guilty of causing him bodily harm in the course of their duties ( Körperverletzung im Amt ). The administration of toxic substances was prohibited by Article 136a of the Code of Criminal Procedure (see paragraph 34 below). His bodily functions had been manipulated, since bodily activity had been provoked by suppressing the control reactions of the brain and the body. In any event, administering emetics was a disproportionate measure and therefore not authorised by Article 81a of the Code of Criminal Procedure (see paragraphs 33 and 35-40 below). It would have been possible to obtain evidence of the alleged offence by waiting for the bubble to pass through his system naturally. The applicant further argued that the only other method authorised by Article 81a of the Code of Criminal Procedure would have been irrigation of the stomach. 20. On 23 March 1994 the Wuppertal District Court convicted the applicant of drug trafficking and sentenced him to one year ’ s imprisonment, suspended, and probation. It rejected the defence ’ s argument that the administration of emetics under Article 81a of the Code of Criminal Procedure was a disproportionate means of recovering a bubble containing just 0.2 g of cocaine. 21. The applicant appealed against the judgment. 22. On 17 May 1995 the Wuppertal Regional Court upheld the applicant ’ s conviction but reduced the length of the suspended prison sentence to six months. It further ordered the forfeiture ( Verfall ) of 100 German marks that had been found on the applicant at the time of his arrest on the ground that it was the proceeds of sale of two drug bubbles. 23. The Regional Court found that the evidence obtained following the public prosecutor ’ s order to provoke the regurgitation of the bubble of cocaine was admissible. The measure had been carried out because further delay might have frustrated the conduct of the investigation. Pursuant to Article 81a of the Code of Criminal Procedure, the administration of the substances in question, even if effected against the suspect ’ s will, was legal. The procedure had been necessary to secure evidence of drug trafficking. It had been carried out by a doctor and in compliance with the rules of medical science. The defendant ’ s health had not been put at risk and the principle of proportionality had been adhered to. 24. The applicant appealed against this judgment on points of law. He argued in particular that Article 81a of the Code of Criminal Procedure did not authorise the administration of emetics, as it did not permit the administration of life-threatening substances by dangerous methods. Furthermore, Article 81a prohibited measures such as the one in question that resulted in a suspect effectively being forced to contribute actively to his own conviction. He further submitted that the impugned measure had violated Articles 1 and 2 of the Basic Law ( Grundgesetz – see paragraphs 31-32 below), and disregarded in particular the right to respect for human dignity. 25. On 19 September 1995 the Düsseldorf Court of Appeal dismissed the applicant ’ s appeal. It found that the Regional Court ’ s judgment did not contain any error of law that was detrimental to the accused. 26. The applicant lodged a complaint with the Federal Constitutional Court. He reiterated that the administration of emetics was a disproportionate measure under Article 81a of the Code of Criminal Procedure. 27. On 15 September 1999 the Federal Constitutional Court declared the applicant ’ s constitutional complaint inadmissible under the principle of subsidiarity. 28. It considered that the administration of emetics, including apomorphine, a morphine derivative, raised serious constitutional issues with respect to the right to physical integrity (Article 2 § 2 of the Basic Law – see paragraph 32 below) and to the principle of proportionality which the criminal courts had not yet addressed. 29. The Federal Constitutional Court found that the applicant had not availed himself of all the remedies at his disposal ( alle prozessualen Möglichkeiten ) to contest the measure before the criminal courts in order to avoid any underestimation of the importance and scope of the fundamental right laid down in Article 2 § 2, first sentence, of the Basic Law ( um eine Verkennung von Bedeutung und Tragweite des Grundrechts des Art. 2 Abs. 2 Satz 1 GG zu verhindern ). 30. It further stated that the administration of emetics did not give rise to any constitutional objections of principle either with respect to human dignity protected by Article 1 § 1 of the Basic Law or the principle against self-incrimination guaranteed by Article 2 § 1 read in conjunction with Article 1 § 1 of the Basic Law. | This case concerned the forcible administration of emetics to a drug-trafficker in order to recover a plastic bag he had swallowed containing drugs. The drugs were subsequently used as evidence in the criminal proceedings against him. The applicant claimed in particular that he had been subjected to inhuman and degrading treatment as a result of having been forcibly administered the emetics in question. |
61 | Adoption | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 and lives in Villeurbanne. 6. Zina Hind was born on 3 November 2003 in Algeria and was abandoned immediately by her biological mother, who gave birth anonymously. As her father was also unknown, Zina Hind became a ward of the Algerian State on 3 December 2003. The director of social services in Boumerdès (Algeria) was appointed as her guardian. 7. On 13 January 2004 the President of the court of Boumerdès granted the applicant, then aged 42 and unmarried, the right to take the child Zina Hind into her legal care ( kafala ). He also authorised Zina Hind to leave Algeria and settle in France. 8. In a decision of 19 January 2004, the President of the court of Bordj Menaïel (Algeria) admitted a request for the child to take the same name and authorised the change from Zina Hind to Hind Harroudj. 9. Hind Harroudj arrived in France on 1 February 2004. Since then she has been living with the applicant and the applicant’s mother. 10. On 8 November 2006 the applicant applied for the full adoption of Hind. In support of her request she argued that to enable Hind to be adopted was the solution most consistent with “the best interests of the child”, within the meaning of Article 3 § 1 of the Convention on the Rights of the Child of 20 November 1989 and Article 1 of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. 11. In a judgment of 21 March 2007 the Lyons tribunal de grande instance dismissed her application for adoption, after noting that kafala gave her parental authority, enabling her to take any decisions in the child’s interest. The court found that kafala gave the child the protection to which all children were entitled under the international conventions. It further pointed out that, under Article 370-3 of the French Civil Code (see paragraph 23 below), a child could not be adopted if the law of his or her country prohibited adoption, which it did in the case of Hind, as the Algerian Family Code stipulated: “adoption is prohibited by the Sharia and by legislation” (see paragraph 17 below). The applicant appealed against that judgment. 12. In a judgment of 23 October 2007 the Lyons Court of Appeal upheld the judgment of the court below: “Article 370-3, second paragraph, of the Civil Code, inserted by the Law of 6 February 2001 on Intercountry Adoption, stipulates: ‘Adoption of a foreign minor may not be ordered where his or her personal law prohibits that institution, unless the minor was born and resides habitually in France’. The choice-of-law rule, in so far as it refers to the personal law, is not discriminatory and is compliant with Articles 8 and 14 of the European Convention on Human Rights and with international law; Article 4 (a) of the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption provides that adoption may take place only if the competent authorities of the State of origin have established that the child is adoptable, this not being the case where adoption is prohibited. Hind Harroudj was born in Algeria. Article 46 of the Algerian Family Code authorises kafala, but prohibits adoption. Under French law, simple or full adoption creates a legal parent-child relationship for the benefit of the adopters and cannot be equated with kafala. The Algerian Family Code does not provide for any exception to the prohibition of adoption where the child has no established parentage. The executive decree of 13 January 1992 on changes of name does not establish parent-child relationships, as the holder of the right of kafala retains the status of guardian. The kafala system preserves the child’s interests by conferring legal status on the care provided by guardians. It is expressly recognised by Article 20 § 3 of the Convention on the Rights of the Child of 20 November 1989. Islamic law makes other provision for the inheritance of property. Accordingly, the above-mentioned provisions do not run counter to the child’s best interests.” 13. The applicant lodged an appeal on points of law. Under Articles 8 and 14 of the Convention, she relied on Hind’s right to respect for her family life, submitting that it was in the child’s interest for a legal parent-child relationship to be established between them, and that her inability to adopt Hind entailed a disproportionate interference with her own family life. She argued that the fact of denying her the right to adopt had the effect of establishing a difference in treatment in respect of the child’s family life on account of the child’s nationality and country of origin, as children born in countries which did not prohibit adoption could be adopted in France. 14. In a judgment of 25 February 2009 the Court of Cassation dismissed her appeal on points of law: “After noting that the choice-of-law rule in Article 370-3, second paragraph, of the Civil Code, referring to the personal law of the adopted child, was consistent with the Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption – the application of which is intended only for adoptable children, excluding those whose country of origin prohibits adoption – the Court of Appeal did not establish any difference in treatment in respect of the child’s family life or disregard the right to respect for the latter, in finding that Article 46 of the Algerian Family Code prohibited adoption but authorised kafala and in rejecting the application for adoption, in so far as kafala was expressly recognised by Article 20, paragraph 3, of the New York Convention of 26 January 1990 [adopted on 20 November 1989] on the Rights of the Child, as preserving, on a par with adoption, the child’s best interests. ...” | This case concerned the refusal of permission for a French national to adopt an Algerian baby girl already in her care under the Islamic-law form of guardianship called “kafala”1. |
960 | Risk of being sentenced to death | I. THE CIRCUMSTANCES OF THE CASE A. The applicant ’ s arrest and detention 5. On 2 July 2010 the applicant applied for a renewal of his American passport at the United States Embassy in Tirana. In the afternoon of the same day he was arrested by the Albanian police at the request of the United States Embassy. 6. On the same day, the United States Embassy sent diplomatic note no. 55 by which it requested the provisional arrest of the applicant for the purpose of extradition in accordance with Article XI of the Extradition Treaty. According to the diplomatic note, a warrant for the applicant ’ s arrest had been issued on 28 May 2010 by a United States judge. The prosecutor requested the validation of the applicant ’ s provisional detention with a view to his extradition to the United States. 7. On 4 July 2010 the Tirana District Court (“the District Court”) authorised the applicant ’ s detention for a period of forty days, relying on a wanted notice issued by the United States authorities, through Interpol, against the applicant. The applicant and the prosecutor appealed against the decision. 8. On 22 July 2010 the lawfulness of the applicant ’ s detention was upheld by the Tirana Court of Appeal (“the Court of Appeal”), which extended the period of the applicant ’ s detention to sixty days, that is from 2 July until 2 September 2010. In support of its decision, the Court of Appeal relied, inter alia, on Article XI of the Extradition Treaty between the United States and Albania. 9. The applicant appealed to the Supreme Court, which rejected the appeal on 12 November 2010. 10. Between August and November 2010, the applicant challenged his continued detention three times, namely in August, September and November 2010. Each time the domestic courts rejected the applicant ’ s actions and they respectively extended his detention in accordance with Article 493 of the Code of Criminal Procedure (“CCP”), namely until 2 November 2010. B. The extradition proceedings 11. On 30 August 2010 the United States Embassy addressed diplomatic note no. 071 to the Albanian Ministry of Foreign Affairs requesting the applicant ’ s extradition. According to the diplomatic note, the applicant had been charged, along with other co-defendants, with the following eight counts : 1) membership of an organised racketeering enterprise engaged in murder, kidnapping, drug distribution, arson, robbery, extortion and the interstate transportation of stolen goods; 2) conspiracy to engage in a racketeering enterprise; 3) conspiracy to distribute and possession with intent to distribute 100 kilograms and more of marijuana; 4) conspiracy to distribute and possession with intent to distribute controlled substances; 5 ) conspiracy to commit robbery; 6 ) the possession, use, carrying and brandishing of firearms, including a firearm equipped with a silencer, during, in relation to, and in furtherance of the narcotics offence; 7 ) kidnapping in aid of racketeering; 8 ) the possession, use, carrying and brandishing of firearms during, in relation to, and in furtherance of the kidnapping charged in count six; and 9 ) the murder of E.S in aid of racketeering. The diplomatic note further stated that five charges carried a maximum sentence of life imprisonment (nos. 1-2 and 6 - 8 ); two charges carried a maximum penalty of forty years ’ imprisonment (nos. 3 and 4 ); one charge carried a maximum sentence of twenty years ’ imprisonment (no. 5 ); and another charge carried a penalty of either death or life imprisonment (no. 9 ). The diplomatic note further stated that an arrest warrant had been issued against the applicant on 19 August 2010 by the United States District Court for the Southern District of New York. 12. On 31 August 2010 the prosecutor ’ s office requested the District Court to authorise the applicant ’ s extradition to the United States. 13. On 30 September 2010 the District Court granted the prosecutor ’ s request. The District Court rejected the applicant ’ s objection that the United States authorities had not furnished any assurances against the imposition of the death penalty on the grounds that such assurances were not required by law. 14. On 13 October 2010 the State Advocate ’ s Office informed the Court of Appeal of this Court ’ s interim measure of 12 October 2010 (see paragraph 31 below). 15. On 27 October 2010 the United States Embassy sent diplomatic note no. 88 to the Albanian Ministry of Foreign Affairs, which read, in so far as relevant, as follows (extracted from the original in English) : “The United States understands that Rrapo has been ruled extraditable and that decision has been appealed to an Albanian appellate court and a complaint has been lodged before the European Court of Human Rights. The United States requests that, as these proceedings continue, should the Government of Albania require additional information regarding possible future proceedings in the United States, such information should be requested via diplomatic note and should provide a reasonable timeframe for response, as well as instructions on the presentation of such information. The United States will respond to any such request within a reasonable time. The Embassy also requests that, with regard to the Almir Rrapo extradition proceedings, the Government of Albania consider the potential flight risk of the defendant, and request that Rrapo continue to be detained pending the resolution of all proceedings relating to the request for extradition of Rrapo, including proceedings at the European Court of Human Rights and national court proceedings.” 16. On 1 November 2010 the Tirana Court of Appeal, following the applicant ’ s appeal, found in favour of the applicant ’ s extradition. The court ruled that there existed no legal obligation to seek assurances from the US authorities against the imposition of the death penalty. 17. On 1 November 2010 the Minister of Justice ordered that the applicant ’ s extradition should be effected by 16 November 2010. 18. On 3 November 2010 the Minister of Justice sent a note verbale to the United States Embassy asking whether the applicant would be subjected to capital punishment for the criminal offences with which he had been charged. 19. On 8 November 2010 the United States Embassy sent diplomatic note no. 91 to the Albanian Ministry of Foreign Affairs, which, in so far as relevant, read as follows (extracted from the original in English) : “The United States Department of Justice has authorised and directed the United States Attorney for the Southern District of New York not to seek the death penalty against Almir Rrapo. As a result, the Government of the United States hereby assures the Government of Albania that should Mr Rrapo be extradited to stand trial on the charges for which his extradition has been granted, the death penalty will not be sought or imposed against Almir Rrapo upon his extradition to the United States .” 20. On 9 November 2010 the applicant lodged an appeal with the Supreme Court. He argued, inter alia, that the United States authorities had given no assurances about the non-imposition of the death penalty in breach of Article 21 of the Constitution. 21. On 9 November 2010 the applicant lodged a further request with the Supreme Court seeking the suspension of his extradition, bringing to its attention this Court ’ s indication under Rule 39 of the Rules of Court. 22. On 10 November 2010 the State Advocate ’ s Office informed the Supreme Court of this Court ’ s interim measure of 2 November 2010 (see paragraph 32 below). 23. On 15 November 2010 the Minister of Justice extended to 1 December 2010 the time-limit within which the applicant ’ s extradition to the United States could take place. 24. On 24 November 2010 the applicant was extradited to the United States. 25. On 26 November 2010 the Supreme Court quashed both lower courts ’ decisions and remitted the case to the District Court for rehearing. The Supreme Court found that the lower courts should not have granted the applicant ’ s extradition on two principal grounds. In the first place, the lower courts had not obtained any assurances from the United States authorities that the capital punishment would not be imposed on the applicant. This was against a number of Albania ’ s constitutional and other statutes ’ provisions. Secondly, the lower courts had not heard any evidence of the applicant ’ s alleged guilt as required by the Extradition Treaty. The existence of an affidavit by a United States police officer could not be considered evidence within the meaning of domestic criminal procedure provisions. 26. In the rehearing proceedings, in response to the District Court ’ s request of 16 February 2011 about the existence of assurances against the imposition of the death penalty on the applicant, on 17 February 2011 the Minister of Justice requested the United States Embassy to provide assurances that the applicant would not be subjected to capital punishment in respect of the charges for which he was extradited. 27. On 24 February 2011 the United States Embassy sent diplomatic note no. 22 to the Albanian Ministry of Foreign Affairs, which, in so far as relevant, read as follows (extracted from the original in English) : “ ... The United States further refers Albania to diplomatic note 91, dated November 8, 2010 in which the United States provided assurances that the death penalty will not be sought or imposed against Mr. Rrapo on the charges for which his extradition was granted. Such assurances are transmitted by the United States Government in the form of a diplomatic note, which is a formal communication between our governments. As reflected in diplomatic note no. 91, the assurances are provided based upon a decision by the United States Department of Justice not to seek or impose the death penalty against Mr. Rrapo, and these assurances are binding upon the United States Department of Justice.” 28. In response to another District Court ’ s request to have explanations on the position of the United States Government concerning the diplomatic notes and assurances already provided, on 18 May 2011 the United States Embassy sent diplomatic note no. 44 to the Albanian Ministry of Foreign Affairs, which, in so far as relevant, read as follows (extracted from the original in English) : “The United States values its relationship with the Republic of Albania and close cooperation in combating terrorism and other crime. It is in this spirit that the United States provides the following additional response with respect to the matters previously raised with respect to the extradition of Mr Rrapo [ ... ]. With respect to the request for additional evidence of the guilt of Mr Rrapo, the United States notes that Mr Rrapo has already pled guilty to the charges. ... As regards the nature and status of diplomatic notes, this diplomatic note (no. 44) explained that: [ ... ] The United States notes that the diplomatic note from the United States Embassy in Tirana is a formal communication by the United States Government to the Government of the Republic of Albania that sets forth the official and authoritative position of the entire United States Government regarding death penalty assurances in this case. Communication of such assurances via diplomatic note is the standard practice of the United States Government, and, indeed, governments throughout the world. Such assurances bind the entire government of the United States, including the Department of Justice and prosecuting authorities. The Embassy speaks authoritatively for the United States on this and any other matter when it provides an official communication on behalf of the United States and is therefore the “competent organ” of the Requesting State to convey such assurances. These assurances as provided in diplomatic note 91, dated November 8, 2010, are entirely dispositive and authoritative.” 29. The Government have submitted that on 28 September 2011 the District Court ruled in favour of the applicant ’ s extradition, although no copy of that decision has been provided. 30. The applicant ’ s appeal appears to be pending before the Court of Appeal. C. Proceedings before the Court 31. On 12 October 2010, while the extradition proceedings were pending before the Court of Appeal, the President of the Fourth Section of the Court to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Albania, under Rule 39 of the Rules of Court, that the applicant should not be extradited to the United States. This measure was to remain in force “until the lapse of ten days following notification of the Court of Appeal ’ s decision to the Court.” The parties were informed of the decision on the same day by way of a facsimile and mail. 32. On 2 November 2010, following the Court of Appeal ’ s decision in favour of the applicant ’ s extradition as well as the applicant ’ s appeal against that decision to the Supreme Court, the President of the Fourth Section of the Court decided to prolong the interim measure initially indicated to the respondent Government under Rule 39 of the Rules of Court, “until the lapse of fifteen days following notification of the Supreme Court ’ s decision to the Court.” The parties were informed of this decision on the same day by way of a facsimile and by mail. 33. On 4 November 2010 the Registrar of the Fourth Section wrote to the State Advocate ’ s Office, in their position as the Government ’ s Agent before the Court, in inter alia the following terms. “Under the terms of the interim measure, as decided and prolonged by the President of the Fourth Section, the applicant should not be extradited to the United States of America until fifteen days have elapsed from the date of the notification of the Supreme Court ’ s decision to this Court. This period is intended to allow the Court time to reflect further on the matter in the light of the domestic court ’ s findings. In this connection, I can only repeat what I said at our meeting, namely that the failure of a Contracting State to comply with a Rule 39 measure may entail a breach of Article 34 of the Convention, which is binding upon your Government as a signatory thereto (see Grori v. Albania, no. 25336/04, §§ 172-195, 7 July 2009). You may wish to stress this point in your discussions with the competent authorities.” 34. On 10 November 2010 the Minister of Justice informed the General Prosecutor ’ s Office and the National Interpol Office that the applicant should not be extradited to the United States in compliance with the Court ’ s Rule 39 interim measure. 35. On 15 November 2010 the President of the Fourth Section of the Court decided that, even having regard to the diplomatic assurances given by the United States Embassy against the imposition of the death penalty, the Rule 39 indication would remain in force and continue to apply. The parties were informed of the decision on 18 November 2010 by way of a facsimile and mail. 36. On 24 November 2010 the applicant ’ s lawyer informed the Court that the applicant had been extradited to the United States that morning, without any prior notice either to the applicant or his representative. By letter of the same day, this Court invited the Government to confirm this information. 37. On 25 November 2010 the Government confirmed, over the telephone, to the Registrar of the Fourth Section of the Court that the applicant had been extradited from Albania on 24 November 2010. Confirmation was received in writing on 26 November 2011. 38. On 25 November 2010 the Registrar of the Court sent the following letter to the Government: “The President of the Court ... has instructed me to express on his behalf his profound regret at the decision taken by your authorities to extradite Mr Almir Rrapo to the United States of America in flagrant disrespect of the Court ’ s interim measure adopted under Rule 39 of the Rules of Court. The President has noted in this connection that on 3 November 2010 your authorities were reminded in clear terms by the Registrar of the Fourth Section that the Rule 39 measure, first applied on 12 October 2010, continued to remain in force. Your Government ’ s attention was drawn to the fact that the failure of a Contracting State to comply with a Rule 39 measure may entail a breach of Article 34 of the Convention. Furthermore, in the Court ’ s most recent letter of 18 November 2010, your Government were informed that the President of the Fourth Section had decided to continue to apply the interim measure. Nevertheless, your Government extradited the applicant to the United States of America on 24 November 2010. The President has instructed me to request your Government to inform the Court of the circumstances in which the extradition was effected and of the reasons why the Rule 39 measure was not complied with. Your Government should submit copies of any relevant documentation. The President is deeply disturbed at this development and is particularly concerned about its implications for the authority of the Court and the unfortunate message which it sends both to other Contracting States faced with a Rule 39 measure and to applicants and potential applicants liable to extradition or expulsion to countries where they may be exposed to the risk of violation of their rights under Articles 2 and 3 of the Convention. As an indication of the seriousness with which he views this turn of events, the President has asked that the Chairman of the Committee of Ministers, the President of the Parliamentary Assembly, the Commissioner for Human Rights and the Secretary General of the Council of Europe be informed immediately”. 39. In a reply of 30 November 2010 the Government stated that the applicant ’ s extradition was prompted by the assurances given by the United States Embassy that the death penalty would neither be sought nor imposed. The letter further indicated that, as the applicant ’ s detention would have expired on 1 December 2010 and, upon release, his risk of absconding was imminent, the Albanian authorities proceeded with his extradition on 24 November 2010. 40. On 10 January 2011 the Albanian Permanent Representation to the Council of Europe forwarded to the Court a letter of the Albanian Minister of Justice dated 27 December 2010. In his letter, the Minister assured the Court that it was not the Government ’ s intention to breach a Rule 39 order. The complex and exceptional circumstances of the applicant ’ s case had prompted the Government to take a decision, which, in their view, offered a fair solution to the case. The Minister further stated that (extracted from the original in English) : “ ... I would like to clarify that if the European Court order [were to] be fully implemented, then ... Almir Rrapo, [whose appeal was] pending ... before the Supreme Court, would be released starting from 1 December 2010. This [is so] because, according to the Albanian legislation, a court decision takes judicial executive effects upon [the] termination of trial [before] the Appeal Court and not after the termination of trial [before] the High Court. On the date of trial from the latter, ... Almir Rrapo would be necessarily released pursuant to Article 499 § 1 of the CCP ... Under these conditions, a person of high criminal risk not only for ... Albanian citizens but also for ... European and American citizens would [have] be [en] released. Consequently, the Minister of Justice was under the objective conditions that made impossible to [fully] comply ... with the European Court order. Under these circumstances he decided to reschedule the date of extradition, until the [expiry of the] time-limit when ... Almir Rrapo could be held under the security measure “arrest in prison”, which was [on] ... 1 December 2010. The full implementation of the European Court ’ s [order] and, consequently, the extension of the extradition deadline after 1 December 2010, as ordered by the Court, would [have brought] the Albanian state under the situation of [the expiry] of the [30-day] time-limit as specified in the above legal provision. Therefore, the Albanian state would have [had] the legal obligation to release ... Almir Rrapo. Further, I would like to clarify that under Article 500 of the CCP, the Minister of Justice could not suspend the execution of the extradition decision of Almir Rrapo as a result of the European Court order, because that provision does not contain such a clause, and, therefore, it does not provide the regulation of relevant consequences. Moreover, we would like to make clear that the Albanian legislation does not stipulate what happens to the security measure “arrest in prison”, if the Supreme Court decides to [remit] the case for retrial, which it happened. Consequently, as long as there is no legal provision which expressly stipulates the possibility of keeping in force this measure in such a case, the legal interpretation would have favoured the position of ... Almir Rrapo. Thus, the latter should [have] be [en] released in this case. The scope of the Albanian party was to avoid the release of ... Almir Rrapo due to his high social risk, [the] serious charges brought against him and the evident opportunity to get away to an unknown direction. In this context, we add that on 27 October 2010 the American party had requested the Albanian party to undertake every legal measure to ensure that the citizen Almir Rrapo would not get away. In case of his leaving, the provisions of the Extradition Treaty would be violated. Hence, the Albanian state would not comply with the bilateral international obligations due to failure of good administration of justice.” D. Events subsequent to the communication of the case to the Government 41. On 19 July 2011 the applicant ’ s lawyers before this Court, while alleging that the information had been extracted under coercion, submitted a record of the hearing of 11 April 2011 before a United States judge. The applicant, having received legal advice from his lawyer in the United States, willingly entered into a plea bargain with the United State Attorney ’ s Office, according to which he pleaded guilty of his own volition and waived his right to have the case presented to a Grand Jury so that there would be no trial and the remaining steps consisted of the pre - sentence report and sentencing by the trial judge. In the record, he also accepted that he would provide assistance to the United States Government as required. 42. The judge explained to the applicant that the total maximum sentence on all charges was life imprisonment and that the total mandatory minimum sentence on all charges was life imprisonment. He further informed the applicant that, since parole had been abolished, and, if sentenced, he would be required to serve the entire term. The record further mentioned the possibility of a supervised release in favour of the applicant. The judge also reminded him that, under certain circumstances, he had a right to appeal the sentence imposed. 43. The judge accepted the applicant ’ s plea of guilty and directed that a pre - sentence report be prepared in accordance with the federal sentencing guidelines, taking into account a number of factors including the actual conduct in which he had been engaged, any victims of the offence, the role that he had played in the offence, whether he had accepted responsibility for his acts, whether he had any criminal history and whether he had tried to obstruct justice. The trial judge retained discretion as to the actual penalty to be imposed. 44. On 26 July 2012 the applicant was convicted by the United States court as charged (see paragraph 11 above). He was sentenced to 80 months ’ imprisonment. Upon release he would be on supervised release for a term of three years in accordance with the conditions and terms of the supervised release. | The applicant, an Albanian and American national, was detained in a prison in the United States following his extradition from Albania to stand trial in the United States on numerous serious criminal charges, one of which carried the death penalty. While still detained in Albania, the applicant complained that his Convention rights would be breached as a result of his extradition to the United States given the risk of the death penalty if he were tried and convicted. |
1,002 | Cases concerning the war in Croatia | 2. The applicant was born in 1962 and lives in Sisak. He was represented first by Ms Lj. Planinić, and then, from 12 February 2021, by Mr M. Domjanović, both lawyers 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. On 25 June 1991 Croatia declared independence but was requested by the European Economic Community to postpone implementation of the declaration for three months from 7 July 1991. Therefore, the full implementation of the declaration only came into effect on 8 October 1991, after the three-month moratorium, when Croatia definitively severed all ties with the Socialist Federal Republic of Yugoslavia. 6. On 15 January 1992 Croatia was internationally recognised as an independent State by all twelve States which were at that time members of the European Economic Community, as well as by six other States. Even though Croatia was internationally recognised even before that date by eight other States, 15 January 1992 is considered and commemorated in Croatia as the date of its international recognition. 7. In June 2011 a comprehensive investigation was opened into the killings and other criminal offences committed against individuals of Serb ethnicity in the Sisak and Banovina area in the period between mid-August 1991 and mid-June 1992. In that period the applicant was the deputy head of the Sisak-Moslavina Police Department and in the period between 18 July and 1 October 1991 also the commander of all police forces in the broader area of Sisak and Banovina. 8. On the basis of the evidence obtained during the investigation, on 16 December 2011 the Osijek County State Attorney’s Office ( Županijsko državno odvjetništvo u Osijeku ) indicted the applicant before the Osijek County Court ( Županijski sud u Osijeku ). He was accused of having, in the period between 18 August 1991 and 20 June 1992, personally ill-treated civilians, ordered attacks against them, ordered their illegal arrests and detentions, and of having failed to prevent a number of illegal arrests and detentions, the ill-treatment and killings of civilians and the ill-treatment and killing of a prisoner of war perpetrated by the police units under his command. 9. The indictment was modified during the trial, on 26 November 2013. Specifically, the State Attorney’s Office eventually charged the applicant with twenty-two counts of war crimes against the civilian population, eighteen of which had been committed before 8 October 1991 (see paragraph 5 above), and one count against a prisoner of war which had also been committed before that date. 10. The applicant was accused of ordering three and personally participating in the commission of two of the above-mentioned twenty-two crimes against the civilian population. For those five crimes the State Attorney’s Office sought the applicant’s conviction on the basis of Article 120 § 1 of the Basic Criminal Code (see paragraph 27 below). 11. As regards the remaining seventeen crimes against the civilian population, the State Attorney’s Office argued that the applicant had committed them by omission, namely by failing to prevent them even though as the commander of the police units which had committed those crimes he had been under a duty to do so. In respect of those crimes, the State Attorney’s Office sought the applicant’s conviction on the basis of Article 120 § 1 taken in conjunction with Article 28 § 2 of the Basic Criminal Code (ibid.). 12. Lastly, in respect of the remaining crime, that is, the war crime against a prisoner of war, the State Attorney’s Office also argued that the applicant had committed it by omission, that is, by failing to prevent it. In respect of that crime, the State Attorney’s Office sought the applicant’s conviction on the basis of Article 122 taken in conjunction with Article 28 § 2 of the Basic Criminal Code (ibid.). 13. Since Article 120 § 1 and Article 122 of the Basic Criminal Code were referencing (blanket) provisions [1] referring to the rules of international law (ibid.), the State Attorney’s Office also relied on “universally recognised rules of customary international law of war and [of customary international] humanitarian law relative to ... the responsibility of commanders for the acts of their subordinates in times of armed conflict”. 14. The State Attorney’s Office also referred to certain specific provisions of the two Geneva Conventions of 12 August 1949 and their Protocols of 8 June 1977, namely: – Article 3 § 1 (a) and (c) and Article 13 of the Geneva Convention relative to the Treatment of Prisoners of War (“the Third Geneva Convention”); – Article 3 § 1 (a) and (c) and Articles 13, 27, 31 and 32 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War (“the Fourth Geneva Convention”); – Articles 75, 86 and 87 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (“the First Protocol”, see paragraph 30 below); – Article 4 §§ 1 and 2 (a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (“the Second Protocol”). 15. The applicant responded to the charges and maintained, inter alia, the following arguments throughout the proceedings: – the Basic Criminal Code had not contained the concept of command responsibility, and the referencing (blanket) provisions in its Articles 120 and 122 could not be interpreted in the light of Articles 86 and 87 of the First Protocol to the Geneva Conventions (see paragraphs 27 and 30 below) because that Protocol applied only to international armed conflicts, it being understood that Croatia’s declaration of independence had come into effect on 8 October 1991, that the country had not been internationally recognised until 15 January 1992 (see paragraphs 5-6 above) and that the Second Protocol applicable to non-international armed conflicts did not provide for command responsibility (see paragraph 14 above); – the concept of command responsibility could not be applied to him because at the time when the offences had been committed ( tempore criminis ) he had been the deputy head of the local police department and not a member of the military (see paragraph 7 above); – he had been charged on the basis of his command responsibility even though the direct perpetrators of most of the criminal offences in question had not been identified, which meant that they could have been members of several other military, police, or even paramilitary or informal units, present in the Sisak area at the time, for whom he had not been responsible; and – as a deputy head he had had fewer powers than a head of a police department, making it impossible for him to have committed the offences with which he had been charged. 16. In a judgment of 9 December 2013, the Osijek County Court found the applicant guilty as charged and sentenced him to eight years’ imprisonment. 17. As regards the eighteen war crimes the applicant had been accused of having committed by omission (see paragraphs 11-12 above), the court convicted him on the basis of Article 120 § 1 and Article 122 of the Basic Criminal Code and on the relevant provisions of the Third and Fourth Geneva Conventions and the Additional Protocols (see paragraph 14 above), taken in conjunction with Article 28 § 2 of the Basic Criminal Code and Articles 86 and 87 of the First Protocol to the Geneva Conventions (see paragraphs 27 and 30 below). 18. Specifically, on the basis of the evidence taken, the court found that the applicant had had formal and actual command authority over the police units which had committed the eighteen war crimes in question, and that he had known or had been aware of those crimes. As their commander he was therefore criminally liable for those crimes on the basis of the principle of guarantor liability ( garantna odgovornost, see paragraph 28 below). Lastly, the court held that the applicant, who was a military-academy-educated officer, had known very well that his conduct had been prohibited and in breach of the Geneva Conventions and the Protocols thereto. 19. The applicant appealed, complaining of a number of substantive and procedural errors. He also reiterated his main arguments made before the trial court (see paragraph 15 above). The State Attorney’s Office also appealed, seeking that the sentence be increased. 20. In a judgment of 10 June 2014, the Supreme Court ( Vrhovni sud Republike Hrvatske ) upheld the applicant’s conviction and increased his sentence to ten years’ imprisonment. 21. In reply to the applicant’s argument that he had been convicted of the war crimes in question on the basis of command responsibility even though the direct perpetrators had not been identified (see paragraphs 15 and 20 above), the Supreme Court held that all the evidence taken together unequivocally pointed to the conclusion that the perpetrators of those war crimes had been members of the police units under the applicant’s formal and actual command. 22. The Supreme Court did not address the applicant’s argument (see paragraph 15 above) that tempore criminis the war in Croatia had not had an international character and that therefore the referencing (blanket) provisions in Articles 120 and 122 of the Basic Criminal Code could not be interpreted in the light of Articles 86 and 87 of the First Protocol to the Geneva Conventions providing for responsibility of commanders, because that Protocol applied only to international armed conflicts (see paragraph 30 below). 23. The applicant subsequently, on 24 July 2014, lodged a constitutional complaint against the Supreme Court’s judgment. He complained of a number of violations of his rights guaranteed by the Convention and the Croatian Constitution. He again repeated the arguments he had made previously (see paragraphs 15 and 20 above). 24. In a decision of 10 March 2020, the Constitutional Court ( Ustavni sud Republike Hrvatske ) dismissed the applicant’s constitutional complaint. It first held that the war in Croatia had not had an international character before 8 October 1991 (see paragraph 5 above). Consequently, Articles 86 and 87 of the First Protocol to the Geneva Conventions (see paragraph 30 below) could not serve as the legal basis for the applicant’s conviction for the war crimes which had been committed before that date and for which he had been found guilty on the basis of his command responsibility (see paragraphs 9 and 11 ‑ 12 above). 25. However, the Constitutional Court held that at the time of the commission of those offences the command responsibility for war crimes in non-international armed conflicts had already become a rule of customary international law. In that regard the Constitutional Court referred to Hadžihasanović and Others case (see paragraphs 37-38 below) and other judgments of the International Criminal Tribunal for the former Yugoslavia ( Delalić and others, no. IT-96-21-T of 16 November 1998, §§ 333-343, and Duško Tadić, no. IT-94-1-T of 7 May 1997) and judgments of the International Criminal Tribunal for Rwanda ( Akayesu, no. ICTR-96-4-T of 2 September 1998, §§ 612-613 ). 26. On 9 March 2020 the Constitutional Court notified the applicant’s representative of its decision. | This case concerned the applicant’s conviction for war crimes, perpetrated by the police units under his command, against the Serbian civilian population and a prisoner of war, on the territory of Croatia between mid-August 1991 and mid-June 1992. The applicant complained that, in convicting him of those crimes, the domestic courts had applied a protocol applicable only to international armed conflicts, whereas the events had taken place before Croatian independence and thus during a non-international armed conflict. |
440 | Medical assistance for prisoners with a physical illness | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1965 and is presently serving a prison sentence in Požega Penitentiary. 1. Criminal proceedings against the applicant 5. On 24 April 2001 the Požega Municipal Court ( Općinski sud u Požegi ) convicted the applicant of fraud and sentenced her to eight months'imprisonment. The court also ordered her to pay 44,000 Croatian kunas (HRK) in damages to the injured party. The first - instance judgment was upheld by the Požega County Court ( Županijski sud u Požegi ) on 21 November 2001. 6. The applicant served the sentence in Požega Penitentiary from 10 January until 2 9 August 2003, when she was conditionally released. Her conditional release expired on 10 September 2003. 7. On 22 November 2001 the Zagreb Municipal Court ( Općinski sud u Zagrebu ) convicted the applicant on eight counts of fraud, sentenced her to four years'imprisonment and confiscated HRK 210,782 from her, which it attributed to the proceeds from her criminal activity. The court also ordered her to pay HRK 359,416.17 in damages to various injured parties. The sixth count of the applicant's conviction was identical to the offence for which the applicant had been sentenced by the Požega Municipal Court on 24 April 2001. The judgment was upheld on 8 July 2003 by the Zagreb County Court ( Županijski sud u Zagrebu ), sitting as an appellate court. 8. On 6 April 2005 the applicant started to serve her sentence. 9. On 21 October 2005 the applicant lodged an application for a retrial, claiming that she had been sentenced twice for the same offence. On 15 February 2006 the Zagreb Municipal Court granted the application. On 12 April 2006 the Zagreb Municipal Court acquitted the applicant on the charge of fraud in respect of which she had already been convicted by the Požega Municipal Court and upheld her other convictions of 22 November 2001 the court sentenced her to three years'imprisonment and confiscated HRK 166,782 from her on account of her criminal activity. 2. The applicant's health condition 10. The medical documentation submitted by the applicant shows that since 1996 she has been suffering from chronic hepatitis (Hepatitis C) with a very high level of viremia (presence of viruses in the blood). She has unsuccessfully undergone interferon treatment. Due to the effects of that disease her liver is damaged and her general health condition is very bad. People with hepatitis C usually suffer from constant exhaustion; pain in the abdomen, joints and muscles; general sickness and weakness; and often depression. A low - fat diet is required in order to reduce liver damage. The disease is potentially fatal. On an unspecified date the applicant also contracted hepatitis A. In addition to that, she suffers from endometriosis. 3. The applicant's first stay in Požega Penitentiary and the prison hospital 11. During her first stay in Požega Penitentiary, from 10 January to 29 August 2003, the applicant was put on a low-calorie diet as a punishment for her attempts to complain about the conditions in the prison. She was first given the job of handling dissolvent without any protection and later made to work full time on shovelling pebbles. As a consequence, she collapsed and was transferred to the prison hospital ( Bolnica za osobe lišene slobode, hereafter “the hospital”) where she spent about two and half months. She was transferred in a van, accompanied by a driver, a nurse and a policewoman. The transfer took several hours and they had several coffee breaks and a lunch break, during which they left the applicant in a closed van, without food or water and with the windows shut. 12. In the hospital the applicant shared a hospital room with five other inmates, most of whom were suffering from various mental disorders or epilepsy. The room had no sanitary facilities. The common sanitary facilities were shared by male and female inmates of the same floor. There were six female and fifteen male inmates on the applicant's floor. Access to toilets was allowed only in the company of a prison warden. The prison wardens were all male. Requests to be accompanied to the toilet were often ignored for prolonged periods of time. There was no access to the toilet during the night and the inmates had to use a common chamber pot (one for six inmates). The rooms were unlocked for an hour per day when the inmates were allowed to go out into the corridor, take a shower or wash their clothes. If an inmate urinated or threw up in the room, it had to be cleaned by the other inmates. 13. After her return to Požega Penitentiary, the applicant was again given the job of handling dissolvent, without any protection. After she had collapsed again, she was assigned another job. 14. The applicant was discharged on 29 August 2003. Her conditional release expired on 10 September 2003. 4. The applicant's second stay in prison 15. Following a fresh criminal conviction, on 6 April 2005 the applicant was taken by police to Remetinec Centre for Psychosocial Diagnostics ( Centar za psihosocijalnu dijagnostku Remetinec ), a detention centre in Zagreb, where she stayed for two weeks. a. The applicant's submissions 16. According to the applicant, she had not been allowed to write to the Court. The prison authorities had repeatedly questioned her as to what she had written to the Court about her previous stay in Požega Penitentiary and the hospital. After she had refused to reply she had been transferred to Požega Penitentiary and placed in the high-security unit where she had been ever since. 17. Požega Penitentiary consisted of four buildings that were old and in a bad state of repair. The walls were damp, windows broken and the heating facilities old and insufficient. As a result, it was often very cold in the cells and in the other prison areas. On rainy days the water leaked through the roof into the bedrooms. The sewage and water installations often broke down and when this happened the inmates were deprived of running water for days. 18. Požega Penitentiary was divided into three sections: an open section with the lowest security regime, a semi-open section with a medium security regime and a closed section with the highest security regime. The applicant had been assigned to the latter one. She had been put in a cell measuring twelve square metres with five other inmates. The beds were old and partly broken, and the mattresses were torn and soiled. There were approximately two toilets on average for thirty inmates. The inmates were not allowed to use the toilets at night. The applicant had been put in the same cell as an inmate who took heavy sedatives and therefore soiled her bed almost every night, which created an unbearable smell in the cell. The penitentiary lacked sufficient sanitary facilities, so inmates were occasionally sent to take showers in the basement. The showers there were mouldy and there were often mice, cockroaches, rats and cats running around. The inmates were not allowed to wash their civilian clothes in the penitentiary laundry room but had to wash them by hand and dry them in a very small room, which created an unbearable smell. 19. Before every meal the inmates were lined up in the courtyard where, regardless of the weather conditions and often for a prolonged period of time, they waited to be allowed access to the canteen. The applicant found it increasingly difficult to bear such line-ups on account of her illness. 20. Inmates were made to work about fifteen hours per day. From 12 May to 25 November 2005 the applicant had not worked because of her health condition, but later on she had volunteered to work in order to earn at least some money to buy vitamins and some food. The applicant earned between HRK 300 and 400 per month, HRK 100 of which she was obliged to save. She worked as a seamstress. She was allowed one hour's rest in her bed per day. The bedrooms were locked for the rest of the day. If she needed more rest she had to seek the doctor's permission each time. The applicant found it almost unbearable not to be able to stay in her bed for longer periods during the day since she suffered from tiredness associated with hepatitis C. 21. Although a low-fat diet for her liver disease had been prescribed, the applicant was served food cooked in pig fat. In general the food served to the inmates was insufficient and of poor quality. The bread was often stale and the food had often gone off. Breakfast often consisted of a spoon of bare pig fat. 22. She had seen a doctor once, on 21 February 2006. The medical documentation stated only that the test for hepatitis C was positive and that her viremia was 2. 556. 220 units /ml of serum. Apart from that, the applicant had not been sent for any other medical check-ups despite having a serious disease which required regular tests and check-ups. Since her arrival at Požega Penitentiary the applicant had not been seen by a hepatologist. She stated that she had not asked to be sent to the prison hospital because the conditions there were even worse than in Požega Penitentiary. 23. All letters sent and received by the inmates were subject to censorship. On several occasions the applicant was told to shorten her letters addressed to her family and not to write about the conditions in the prison. Mail was received with up to twenty days'delay. Mail sent without a request for acknowledgment of receipt often did not reach its destination at all. The inmates had to bear all the postage costs. All telephone calls were screened. The inmates apparently had to bear the costs of the telephone calls they made. The applicant stated that she had not been informed that she was entitled to any visits. b. The Government's submissions 24. According to the Government, the penitentiary had been built in 1915 and had been adapted to the life and accommodation of inmates so as to comply with the conditions set out in the relevant legislation. It was able to accommodate 157 inmates, yet on 5 October 2006 there had been 72 inmates. Each section comprised bedrooms, sanitary premises, a living room, a tea-kitchen, a smoking area, an area for leisure activities, a library with computer equipment and premises for religious worship. The inmates were allowed to use the toilet and other sanitary facilities at any time and for an unlimited period. Each living room was equipped with a television set and a DVD or video recorder. Inmates were allowed to watch television until 11 p.m. on working days and until midnight on Saturdays and Sundays. 25. As to the applicant's personal circumstances, the Government submitted that after her initial one - week stay at the Reception Unit, she had been placed in the high-security unit and assigned to a non-working group on account of her health condition. The applicant had been qualified as having minor adaptability problems as most of the time she had been without any obvious occupation, just listening to music. Occasionally she had got into arguments with other inmates. She had lacked the motivation for more active participation in her individual programme, remaining passive and inert, with no insight into her own behaviour and uncritical in respect of her criminal conviction. However, with time the applicant's attitude had altered for the better. She had expressed a higher level of motivation for completing her daily duties and had satisfactorily participated in her counselling sessions, distancing herself from negative events in the section, and concentrating on herself. She had also expressed a wish to work and, as of 23 November 2005, had been working in the laundry service where she had been given less demanding tasks. 26. As of 1 June 2006 the applicant had been labelled “successful”, which had resulted in her removal to a semi-open section from 2 August 2006. Ever since then she had benefited from the following privileges: unsupervised use of telephone in her free time; unlimited correspondence at her own expense; the right to receive a package once a month and during public holidays; an additional package once every two months; the right to supervised one-hour visits twice a month and during public holidays; and an unsupervised three-hour monthly visit. 27. As to the medical care provided to the applicant, they submitted that one doctor and three nurses were employed in the penitentiary. During her second stay in the penitentiary the applicant had been allowed to stop work until she herself had asked to work again. She was also prescribed a liver and vitamin diet and offered fresh cheese and dairy products. On 4 January 2006 she underwent a qualitative and quantitative test for chronic hepatitis virus and was informed of the results. Since 5 May 2005 she had seen the prison doctor on 43 occasions. 28. As to the applicant's right to respect for her correspondence, they submitted that she had been able to send and receive letters at her own expense without any limitation. During her stay in the high-security section she had had to hand over her letters – opened – while the letters addressed to a legal representative, State authorities and international organisations for the protection of human rights had to be handed over sealed. Packages could be sent any day. 5. Remedies used by the applicant 29. It appears that the applicant complained to the prison authorities, the Ministry of Justice and the President of Croatia. She did not submit copies of the letters she had sent to these authorities, stating that she had not made any. However, she submitted a letter of 5 September 2005 sent to her by the Ministry of Justice, Central Prison Administration, the relevant part of which read as follows: “The Ministry of Justice, Central Prison Administration, has received your complaint of 17 August 2005 in which you expressed your dissatisfaction with the accommodation arrangements with other inmates, the approach of the prison officials, the health care and the manner of using your free time.” The applicant's complaints were declared unfounded. 30. Furthermore, the Government submitted a complaint lodged by the applicant in a letter of 28 September 2005, lodged with the Požega County Court judge responsible for the execution of sentences ( Županijski sud u Požegi ), alleging, inter alia, that she suffered from chronic hepatitis and that, on account of her illness, she was not able to comply with the prison regime. Although the judge held an interview with the applicant on 19 October 2005, he did not adopt a formal decision on her complaints. The interview and subsequent action had concentrated solely on giving advice to the applicant about applying for a retrial (see paragraph 9 above). | Serving a prison sentence on counts of fraud, the applicant, who has chronic hepatitis (Hepatitis C) with a very high level of viremia (presence of viruses in the blood), complained in particular about the lack of adequate medical treatment and check-ups, the inadequate diet and lack of opportunity to have sufficient rest. |
285 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1975 and is detained in Andenne prison. 5. After studying the Koran and Sharia law, the applicant left his country of birth, Morocco, for Syria. He stayed there from 1993 to 2002 and studied Islamic theology and Arabic. During that period he travelled on several occasions to Morocco, Turkey and Saudi Arabia. He also visited Afghanistan twice, in 1994 and 1995, for a few months each time. He carried out military training there and – according to his application – took part in “a training programme for the military leader Hekmatyar”. 6. The applicant returned to Morocco in 2002. Under the surveillance of the Moroccan authorities, he left the country for Saudi Arabia, arriving there in October 2002. He only remained there until 2003 because – he alleged – he was “wanted by both Moroccan and Saudi intelligence services”. 7. The applicant reached Belgium via Turkey in early 2004, with false identity papers. He settled there with his Belgian wife and their son. He lodged an asylum application on 16 June 2004. 8. The applicant was arrested in Belgium on 1 July 2004. He was charged with participating, between 7 January and 2 July 2004, as a leader, in the activity of a terrorist group (the Moroccan Islamic Fighting Group, referred to hereinafter as “GICM” after its French name Groupe Islamique Combattant Marocain ), and with forgery, conspiring in a leading capacity to commit an offence, handling of stolen goods, use of a false name and illegal entry and residence. A. The context of the applicant’s arrest 9. It can be seen from the report on the facts submitted on 26 April 2006 by the Federal Prosecutor before the Brussels Court of Appeal (see paragraph 27 below) and that court’s judgment of 19 January 2007 (see paragraphs 29-41 below) that, on 25 November 2002, the administrator-general of the State security service transmitted to the Federal Prosecutor’s office a report noting the presence in Belgium of a group of North African nationals with links to the GICM, made up of individuals who had undergone military training in Afghanistan in camps connected to Al-Qaeda and led by a certain “Shihab”, alias “Abdellah”. A second report dated 24 December 2002 indicated that B. was part of that group. 10. A judicial investigation was opened on 9 January 2003 against persons unknown on a charge of criminal conspiracy. 11. In a third report, dated 28 March 2003, the State security service informed the public prosecutor’s office that a certain O. was the individual known as “Shihab”, and that he had spent time in Afghanistan in 2001, where he had followed paramilitary training. 12. In connection with the investigation into the Casablanca bombings of 16 May 2003, which left about fifty people dead, the Moroccan authorities arrested a number of Islamist militants. During an interview on 8 August 2003, one of them, N., alias Abu Muad, who acknowledged that he was one of the leaders of the GICM and that he had contributed to organising the movement in 2001 in Afghanistan, stated that a certain H. and the applicant had been given responsibilities within the group. He added that after the Western intervention in Afghanistan in 2001 the movement had been split up into small units based in Morocco, France, Belgium, Italy, the United Kingdom and Canada, and that the Belgian unit included H., B. and O. in particular. In view of those statements, and others made by another suspect on 9 August 2003, Morocco issued, on 3 October 2003, an international arrest and extradition warrant in respect of a number of individuals, including the applicant, H. and B., for, in particular, “conspiring to prepare and commit acts of terrorism, and collecting funds to support terrorist action”. 13. On 9 October 2003 the State security service transmitted a fourth report to the investigating judge concerning a certain I., who, on 17 November 2003 reported the loss of his passport to the Moroccan Consulate in Antwerp and applied for a new one. He subsequently stated that he had done so in order to obtain a passport for the applicant to be able to enter Belgium. 14. On 15 March 2004 the State security service issued a fifth report, indicating in particular that B.’s home had been placed under surveillance in the second half of January 2004 and that it was frequented by the applicant, his brother Hassan, O. and H. 15. On 16 March 2004 the Federal Prosecutor’s Office filed additional submissions against persons unknown on a charge of participating in terrorist activity. 16. On 19 March 2004 the federal police arrested H., O. and two other persons, after carrying out searches during which forged passports and Belgian identity cards for foreign residents, among other items, had been seized. 17. In the same period in France, in connection with a judicial investigation against persons unknown, opened on 19 May 2003 on a charge of conspiring to commit acts of terrorism, six individuals suspected of taking part in the GICM were arrested on 4 and 5 April 2004 (three of whom had been named in the Moroccan extradition warrant of 3 October 2003). While they were in police custody, and again before the French investigating judges, the suspects made statements in particular about the international structure of GICM, the military training carried out by some of them in Afghanistan, their meeting in that country with those implicated in the Belgian proceedings, the role played by the latter in the GICM’s international structure and their activities in Belgium. 18. In a report of 1 June 2004, the State security service referred to its surveillance on 12 March 2004 of a snack bar (“Le Village”) in a suburb of Brussels. 19. A second wave of searches took place on 8 June 2004 and four individuals were arrested. 20. On 26 June 2004, B., who had been arrested in the Netherlands on 27 January 2004 on the basis of a Moroccan warrant of October 2003, was extradited to Belgium. 21. I. was arrested on 16 September 2004. Individuals with links to the applicant or to some of his co-defendants were also arrested in Spain in connection with the investigation into the Madrid bombings of 11 March 2004. 22. The last report of the State security service, dated 6 January 2005, indicated that a certain R. might also be linked to the suspects in the case. B. The criminal proceedings 23. In a decision of 29 August 2005 the Committals Division ( chambre du conseil ) of the Brussels Court of First Instance committed the applicant and twelve others to stand trial before the Brussels Criminal Court for, in particular, participation in a terrorist group. On the same day, finding that the applicant had provided evidence of low income, it granted him legal aid so that he could receive a free copy of the entire case file. 24. Documents transmitted by the Moroccan authorities in response to an international letter of request were added to the file after the finalising of the pre-trial proceedings. They were reports of interviews with four of the suspects who were held in Morocco. One of the reports concerned an interview on 14 January 2004 with a certain A., who had been arrested in Saudi Arabia and extradited on that date to Morocco. According to the indications in the Federal Prosecutor’s report on the facts (see paragraph 9 above), A. had stated, in particular, that he had met the applicant, who was a childhood friend of his, in Afghanistan in 1998, and then in 2000 had met the defendant H., while the latter was on a training course in the use of explosives and remote-controlled bombs. A. had added that, in early 2000, the GICM had been re-organised around committees, with the applicant chairing the religious affairs committee and H. being a member of the security committee. He had also explained that he had shared accommodation with the applicant for four months in Kabul in early 2001, in a “GICM guest house” where the group’s leaders would incite them to “go and carry out jihadist operations in Morocco”, and that after the Western intervention in 2001, he had travelled to Morocco, where he had taken part in GICM meetings accompanied, in particular, by the applicant; he had then met up with the applicant again in 2003 in Saudi Arabia. A. had also confirmed the existence of GICM units in France and Belgium, and the fact that B. and O., who he had seen in Afghanistan in 2000 and 2001 respectively, were involved in the Belgian unit. 1. Proceedings before the Brussels Criminal Court 25. The public prosecutor’s office set the case down for hearing on 3 November 2005 and then on 16 November 2005. The Criminal Court held a total of twenty-five hearings, which lasted from 3 November 2005 to 16 February 2006, when it sentenced the applicant to seven years’ imprisonment and a fine of 2,500 euros (EUR). It also handed down prison sentences and fines against eight of his co-defendants and acquitted the four others. 26. Five of the co-defendants – including the applicant – lodged an appeal, as did the Federal Prosecutor’s Office. 2. Proceedings before the Brussels Court of Appeal (a) Judgment in absentia of 15 September 2006 27. The first hearing before the Brussels Court of Appeal was scheduled for 26 April 2006. After briefly questioning the applicant about his identity and the reason for his appeal, the President asked the Federal Prosecutor to give a report on the case. The latter proceeded to read out a report on the facts, extending to several dozen pages, which had been prepared by the Federal Prosecutor’s office (even though, the applicant claimed, the usual practice in Belgian criminal courts was for the report on the facts to be presented by a judge of the Court of Appeal). The Court of Appeal subsequently requested the public prosecutor to give his submissions, without there having been any further examination of the applicant or of witnesses. In view of the voluminous nature of the case file (about a hundred binders containing thousands of pages), the co-defendants submitted in writing that the case should be adjourned until 1 September 2006. As the Court of Appeal denied that request, four of them, including the applicant, decided not to appear. 28. On 15 September 2006, ruling in absentia in respect of the four defendants, the Court of Appeal varied the judgment of 16 February 2006 and sentenced the applicant to eight years’ imprisonment and a fine of EUR 2,500. The applicant and two of his co-defendants applied to have the judgment set aside. (b) Judgment of 19 January 2007 29. Some ten hearings were held between 6 October and 10 November 2006 and on 19 January 2007 the Brussels Court of Appeal confirmed the applicant’s guilt and his original sentence of seven years’ imprisonment and a EUR 2,500 fine. (i) Criminal procedure issues ... 34. The defendants further protested against the addition to the case file of interview reports from France and Morocco. They argued that the statements had been obtained using treatment in breach of Article 3 of the Convention, adding that, in respect of the interviews conducted in Morocco, they were unlawful under Moroccan law. Invoking their right to a fair trial, they requested the Court of Appeal to remove them from the criminal case file. ... 36. As to the interviews conducted in Morocco, the Court of Appeal first noted that the defendants had not adduced any concrete evidence giving rise to reasonable doubt as to a possible breach of Moroccan law by the police or judicial authorities of that country in the proceedings from which the interview reports in question had emanated. The court found, in particular, that the interview reports recorded the statements in a detailed manner, mentioning the identity of the police officer by whom they were drawn up, the precise duration of the judicial custody periods and the fact that they had been authorised by the relevant public prosecutor. It further found as follows: “... Moreover, the fact of citing in general terms various reports of human rights organisations – admittedly respectable ones – does not adduce any concrete evidence that would be capable of giving rise in the present case to the above-mentioned reasonable doubt as to the violence, torture or inhuman or degrading treatment that was allegedly inflicted on the individuals interviewed in Morocco ... Lastly, it cannot be surmised from those interviews or from the Moroccan court decisions added to the file that ... the above-mentioned persons were questioned or sentenced after an expedited trial for participating in the Casablanca bombings, on the basis of a Moroccan Law of 28 May 2003 on the combating of terrorism that had been applied retroactively in breach both of Article 4 of the Moroccan Criminal Code and of the general principle that criminal legislation cannot have retrospective effect. An examination of the Moroccan court decisions – and more specifically the judgment of the Rabat Assize Court – reveals, on the contrary, that the eight Moroccan defendants had initially been charged with setting up a criminal association for the preparation and commission of acts of terrorism, forgery of passports, and the collection of funds in aid of terrorist actions, on the basis of legislation that was unconnected with the above-mentioned Law of 28 May 2003. It can be seen from the foregoing findings that the interview reports and Moroccan court decisions that were added to the file, with the possibility of being freely challenged by the parties, should not be excluded. In addition, the contradictions allegedly contained in those statements, according to defence counsel’s argument, are not capable of justifying the claim that the individuals who were interviewed and/or tried in Morocco were subjected to any inhuman and degrading treatment or torture. Lastly, the Belgian trial courts are by no means bound by those statements and remain free to decide on their relevance and accuracy.” ... (ii) Examination on the merits 39. In its judgment, the Court of Appeal began by showing that the GICM was a terrorist group within the meaning of Article 139 § 1 of the Criminal Code, explaining that it was an organised association of more than two people, established on a lasting basis, which engaged in concerted action for the purpose of committing terrorist offences covered by Article 137 of the Criminal Code. It observed in particular that the group had set up a coordination committee in Morocco and a number of cells in Europe, which had acted in a concerted manner to commit terrorist offences (in particular, homicide and widespread destruction or damage) with the aim of destroying by violence the fundamental structures of Morocco, so that the caliphate could be restored in that country, and of engaging in a holy war that would spread to other countries. 40. As regards, more specifically, the guilt of the applicant himself, the Court of Appeal first noted that “it [could] be seen with certainty from certain elements of the procedure” that he had taken part in the activity of a terrorist group, within the meaning of Article 140 § 1 of the Criminal Code, by taking a number of initiatives to facilitate transfers of funds that were necessary for the financing of the GICM’s unlawful activities, by circulating information about them and acting as a coordinator between the members of the Belgian and French cells, and that he was aware that such participation would contribute to the commission of a criminal offence. It thus concluded that there were a “number of sufficiently strong presumptions of fact”, with reference to the following evidence: - statements made by individuals interviewed in Morocco and information from the Moroccan authorities; - statements made by individuals interviewed in France; - statements made by the applicant, from which it transpired that he had participated in GICM meetings in Europe; - the fact that the applicant had made “a number of journeys in countries known for radical Islamist opinions developed by certain influential groups”, had “followed paramilitary training in Jalalabad” and had had “numerous contacts with individuals known for their close relations with extremist Islamist cells or active participation therein”; - the applicant’s participation in the extremist activities of Islamist groups that were active on an international scale, based on an international arrest warrant issued against him by the Moroccan authorities in connection with an investigation into terrorist activities, and on the fact that he had fled Saudi Arabia, where he was suspected of taking part in the Riyadh bombings of 12 May 2003, for which an arrest warrant had also been delivered against him; - his participation in training specifically given to Islamist terrorist groups, as inferred from his own statements and those of individuals held in Morocco; - the applicant’s links with other members of the GICM’s Belgian cell. The Court of Appeal then noted that the applicant was one of the GICM’s leaders, a fact that could be sufficiently inferred from the statements taken in Morocco and France and from his role as coordinator for the GICM members in Belgium. 41. Lastly, the Court of Appeal found that “the acts committed by the defendants fell clearly within the context of a movement whose aim was to further, by violence and intolerance, the cause of a radical form of Islam, directly threatening the religious and philosophical pluralism that existed in democratic societies and the fundamental rights of their citizens, such as freedom of thought and freedom of expression”, and that the sanction should be “commensurate with this very serious breach of public safety and democratic order”. In sentencing the applicant, the court added as follows: “... It should be pointed out that the defendant played a major role within the GICM’s religious committee; that he was subsequently responsible for the Belgian and French cells of the GICM, together with the defendant [O]. As has already been mentioned, his duties in the Belgian cell mainly consisted in: directing the collection of funds that would serve to finance the group’s activities after the arrest of [N.]; playing a coordinating role between the members of the Belgian cell and those of the Belgian and French cells; and maintaining contact with numerous members of cells based in other countries. The acts committed by the defendant are clearly of a serious nature because they were committed: by an individual who, in particular, travelled on numerous occasions to Afghanistan, Chechnya, Turkey, Mauritania, Saudi Arabia and Syria to establish international relations between the members of the various cells of the terrorist group; by a professional who followed military training in Afghanistan and training in group leadership and who dispensed religious training as part of the responsibilities entrusted to him within the GICM; by an extremist who has no respect for the physical integrity of others and who is prepared to undermine international public safety, by making possible the use of violent methods to ensure that his opinions prevail. The features of the defendant’s personality, as can be seen from the case file, are a matter of concern. It should be pointed out in this connection that the defendant: has already been known for many years at an international level for his terrorist activities and is also wanted by the Moroccan judicial authorities under an international arrest warrant; resided illegally in Belgium for several months and did not lodge an asylum request with the aliens office until June 2004; cannot prove any means of subsistence and seems to survive only with the support of other members of the terrorist group. ..” 42. The applicant and some of his co-defendants appealed on points of law. (c) Proceedings before the Court of Cassation 43. The Court of Cassation dismissed the appeal by a judgment of 27 June 2007. ... 44. As to the argument concerning treatment in breach of Article 3 that had allegedly been sustained by individuals whose statements had been taken in foreign countries, the Court of Cassation took the view that its examination would entail criticism of the factual assessment of the evidence in the case by the trial judge, or a request for verification of such evidence, and that it did not have jurisdiction in respect of such matters. 45. The court further found ... that, as a whole, the applicant had been given a fair trial within the meaning of Article 6 of the Convention. III. MATERIAL ON THE HUMAN RIGHTS SITUATION IN MOROCCO A. Findings and recommendations of the United Nations Committee against Torture and Human Rights Committee 50. In its conclusions and recommendations following the third periodic report of Morocco (CAT/C/CR/31/2; 5 February 2004), the United Nations Committee against Torture expressed its concern about, in particular, the increase in the number of allegations of torture and cruel, inhuman or degrading treatment or punishment, implicating the National Surveillance Directorate (DST) (§ 5.d) and the non-existence of a provision of criminal law prohibiting any statement obtained under torture from being invoked as evidence in any proceedings (§ 5.g). It recommended in particular: that the Criminal Code be amended such as to clearly prohibit any act of torture, even if perpetrated in exceptional circumstances or in response to an order received from a superior officer or public authority (§ 6.b), and to incorporate a provision prohibiting any statement obtained under torture from being invoked as evidence in any proceedings (§ 6.h); that all necessary measures be taken to eliminate impunity for public officials responsible for torture and cruel, inhuman or degrading treatment (§ 6.e); that all allegations of torture or cruel, inhuman or degrading treatment be immediately investigated impartially and thoroughly, especially allegations relating to cases and situations verified by the Independent Arbitration Commission and allegations implicating the DST in acts of torture, and that appropriate penalties be imposed on those responsible, with equitable compensation being granted to the victims. 51. The concluding observations of the United Nations Committee against Torture, having considered the fourth periodic report of Morocco (CAT/C/MAR/CO/4; 21 December 2011), read as follows: “... Use of torture in cases involving security concerns 10. The Committee is concerned by numerous allegations regarding torture and ill-treatment committed by police officers, prison staff and, in particular, agents of the National Surveillance Directorate (DST) who are acting as members of the criminal investigation police force when people are deprived of basic legal safeguards, such as access to legal counsel, particularly in the case of people who are suspected of belonging to terrorist networks or of being supporters of independence for Western Sahara and in the course of interrogations carried out in order to extract confessions from persons suspected of terrorism (arts. 2, 4, 11 and 15). The State party should immediately take substantive steps to investigate acts of torture and to prosecute and punish those who have committed such acts. The State party should ensure that law enforcement officers do not engage in torture through, inter alia, an unambiguous reaffirmation of the absolute prohibition of torture and a public condemnation of that practice by, in particular, the police, prison personnel and members of DST. It should also be made very clear that anyone who commits such acts or is complicit or otherwise participates in such acts will be held personally responsible before the law and will be subject to criminal prosecution and the appropriate penalties. ... Secret arrests and detention in cases involving security concerns 14. The Committee is concerned by reports that, in cases involving terrorism, legal procedures for arresting, questioning and holding suspects in custody are not always followed in practice. The Committee is also concerned by information pointing to a consistent pattern whereby suspects are arrested by plain-clothes officers who do not clearly identify themselves, taken in for questioning and then held in secret detention facilities, which in practice amounts to incommunicado detention. The suspects are not officially registered and are subjected to torture and other cruel, inhuman or degrading treatment or punishment. They are held in these conditions for weeks at a time without being brought before a judge and without judicial supervision. Their families are not notified of their arrest, of their movements or of their whereabouts until such time as they are transferred to police custody in order to sign confessions that they have made under torture. It is only then that they are officially registered and their cases are processed through the regular justice system on the basis of falsified dates and information (arts. 2, 11, 12, 15 and 16). ... The State party should ensure that the proper legal procedures are followed in the case of all persons who are arrested and taken into custody and that the basic safeguards provided for by law are applied, such as access for detained persons to legal counsel and to an independent physician, notification of their family of the arrest and of the location where they are being held and their appearance before a judge. The State party should take steps to ensure that all register entries, transcripts and statements, and all other official records concerning a person’s arrest and detention are kept in the most rigorous manner possible and that all information regarding a person’s arrest and remand custody is recorded and confirmed by both the investigative police officers and the person concerned. The State party should ensure that prompt, thorough, impartial and effective investigations are conducted into all allegations of arbitrary arrest and detention and should bring those responsible to justice. The State party should ensure that no one is held in a secret detention facility under its de facto effective control. As often emphasized by the Committee, detaining persons under such conditions constitutes a violation of the Convention. The State party should open a credible, impartial, effective investigation in order to determine if such places of detention exist. All places of detention should be subject to regular monitoring and supervision. Prosecution of perpetrators of acts of torture and ill-treatment 16. The Committee is particularly concerned that it has received no reports to date of any person being convicted under article 231.1 of the Criminal Code of having committed acts of torture. It notes with concern that police officers are, at the most, prosecuted for assault or assault and battery, but not for torture, and that the information provided by the State party indicates that the administrative and disciplinary penalties imposed on officers for such acts do not seem to be commensurate with their seriousness. The Committee observes with concern that allegations of torture, despite their number and frequency, rarely give rise to investigations and prosecution and that a climate of impunity appears to have taken hold, given the failure to impose genuine disciplinary measures or to bring any significant number of criminal cases against State officials accused of committing acts specified in the Convention, including the gross, large-scale human rights violations that took place between 1956 and 1999 (arts. 2, 4 and 12). The State party should ensure that any and all allegations of torture and of ill-treatment are promptly, effectively and impartially investigated and that the persons who have committed such acts are prosecuted and are given sentences that are commensurate with the grave nature of their acts, as provided for in article 4 of the Convention. The State party should also amend its laws in order to explicitly stipulate that an order from a superior officer or a public authority may not be invoked as a justification of torture. The State party should also take steps to ensure that complainants and witnesses are effectively protected from any ill-treatment or act of intimidation related to their complaint or testimony. Coerced confessions 17. The Committee is concerned by the fact that, under the State party’s current system of investigation, confessions are commonly used as evidence for purposes of prosecution and conviction. The Committee notes with concern that convictions in numerous criminal cases, including terrorism cases, are based on confessions, thus creating conditions that may provide more scope for the torture and ill-treatment of suspects (arts. 2 and 15). The State party should take all steps necessary to ensure that criminal convictions are based on evidence other than the confession of the persons charged, especially when such persons retract their confessions during the trial, and to make certain that, except in cases involving charges of torture, statements made under torture are not invoked as evidence in any proceedings, in accordance with the Convention. The State party is requested to review criminal convictions that have been based solely on confessions in order to identify cases in which the conviction was based on confessions obtained under torture or ill-treatment. The State party is also invited to take the appropriate remedial measures and to inform the Committee of its findings. ...” 52. In its final observations (CCPR/CO/82/MAR; 1 December 2004) on the fifth periodic report of Morocco, the United Nations Human Rights Committee was concerned, in particular, about “the numerous allegations of torture and ill ‑ treatment of detainees” and “the fact that the officials who [were] guilty of such acts [were] generally liable to disciplinary action only, where any sanction exist[ed]”. It further “note[d] with concern that no independent inquiries [were] conducted in police stations and other places of detention in order to guarantee that no torture or ill-treatment [took] place” (§ 14). The Committee also observed with concern that the independence of the judiciary was not fully guaranteed (§ 19) and that, according to numerous reports, the Terrorism Act of 28 May 2003 was being applied retroactively. B. Reports by non-governmental organisations (“NGOs”) 53. In its report of 28 November 2005 entitled “Morocco’s Truth Commission: Honoring Past Victims during an Uncertain Present”, which was referred to by the applicant before the Court, as previously before the domestic courts, Human Rights Watch examined the consequences of the Casablanca bombings of 16 May 2003. It made the following points: “... The fragility of Morocco’s human rights progress was laid bare by the state’s response to Morocco’s first-ever mass terrorist attack. On the night of May 16, 2003, suicide bombers struck several locations in Casablanca, killing forty-five persons, including twelve attackers. Less than one week later, parliament unanimously adopted an anti-terrorist law (Law 3/2003), which had been under debate since autumn 2002 and which raised numerous human rights concerns. The law extended the maximum duration of pre-arraignment detention from eight to twelve days in cases considered to involve terrorism. It also defined the term in a very broad manner. The law considers an act as terrorist if its ‘main objective is to disrupt public order by intimidation, force, violence, fear or terror’ and is composed of one or more acts listed in the article. These include, in addition to physical attacks on other persons, ‘the involvement in organized groups or congregations with the intent of committing an act of terrorism,’ and ‘the promulgation and dissemination of propaganda or advertisement in support of the above-mentioned acts.’ In the months following the Casablanca attacks, the government used this broad definition to convict hundreds of suspected members of terrorist cells, as well as several journalists accused of being apologists for terror. Various human rights organizations documented widespread abuses of the rights of the more than 2,000 suspected Islamists detained by the security forces and the Moroccan courts in the weeks following the attacks in Casablanca. [Human Rights Watch referred to the following reports: Moroccan Human Rights Organization, ‘ Muhakamat ikhtal fiha mizan al-`adalah ’ (Trials in which the scales of justice have been tipped), Rabat, November 2003; Human Rights Watch, ‘Morocco: Human Rights at a Crossroads’, A Human Rights Watch Report, New York, October 2004; Amnesty International, Morocco/Western Sahara: ‘Briefing to the Committee against Torture’ (London, November 2003); Amnesty International, ‘Morocco/Western Sahara: Torture in the ‘anti-terrorism’ campaign - the case of Témara detention centre’; International Human Rights Federation, ‘ Les autorités marocaines à l’épreuve de terrorisme: la tentation de l’arbitraire ’, (Paris: FIDH, February 2004), no. 379.] Many were held for days or weeks in secret detention, where the police subjected them to various forms of illtreatment and in some cases to torture in order to extract confessions. The courts denied them their right to a fair hearing. They routinely refused defense motions to call witnesses, and refused to order medical examinations of those who claimed to have been tortured. Many were tried in haste and convicted before October 2003, when legal reforms took place giving defendants the right to appeal their conviction on the basis of the facts ...” Human Rights Watch, commenting that the “crackdown on suspected [Islamist] militants after the Casablanca bombings constituted an alarming deterioration in rights conditions” and that, more generally, the “authorities instrumentalize[d] the courts to serve political ends”, also observed as follows: “... The mistreatment and unfair trials of suspected militants who were rounded up after the suicide bombings of May 16, 2003, recalled in some ways the grave violations of the past ... ... while some of the suspects arrested in 2003 went missing in police custody for up to several months, they were all accounted for eventually. However, many were subjected to torture or mistreatment while under interrogation. Some were held in an unacknowledged detention center in Temara, a facility under the auspices of the National Surveillance Directorate ( Direction de la Surveillance du Territoire, DST). Some 900 of the suspects were sentenced to prison terms, many in hasty proceedings that did not provide defendants their basic due process rights. Seventeen were sentenced to death, sentences that have not been carried out yet. ... Authorities have responded to reports of present-day abuses by characterizing them as isolated phenemona. [footnote: For example, [the] Justice Minister ... said abuses in the context of the round-up of terror suspects were ‘rare’ and ‘isolated,’ but vowed, ‘We will respond to reports of violations.’ ...] Mohamed VI, in an interview published in the Spanish daily El País on January 16, 2005, acknowledged the existence of ‘twenty cases of abuse’ that he said were being handled by the courts. No details of these twenty cases have been disclosed, to Human Rights Watch’s knowledge, making it difficult to verify whether and for what offenses officials were being held accountable. Overall, the pattern of continuing abuses, criticized by various human rights organizations as well as by the U.N. Human Rights Committee, [footnote: See the Concluding Observations of the Human Rights Committee on Morocco, November 5, 2004, CCPR/CO/82/MAR] shows that security forces continue to operate in a climate of impunity and disrespect for the law, and that the executive branch continues to exercise considerable influence over the courts. ...” 54. In the above-mentioned report, published in February 2004 and entitled “ mission internationale d’enquête – les autorités marocaines à l’épreuve du terrorisme : la tentation de l’arbitraire – violations flagrantes des droits de l’Homme dans la lutte anti-terroriste ” (international fact-finding mission – the Moroccan authorities’ response to terrorism: the temptation to act arbitrarily – flagrant human rights violations in the counter-terrorism context”, the International Human Rights Federation (FIDH) analysed the human rights situation in Morocco in the context of the crackdown on terrorism after the bombings of 16 May 2003. It reported that there had been thousands of arrests, many of which were illegal, followed by numerous cases of arbitrary deprivations of liberty in secret centres. Chapter 2-4, entitled “torture and cruel, inhuman and degrading treatment”, reads as follows [translation by the Registry]: “In such centres, interrogations are carried out in breach of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the United Nations in 1975, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984, ratified by Morocco. At the Témara centre, where most prisoners are taken after their arrest, ill-treatment, violence and torture is, by all accounts, common practice. The cells, situated in the basement, are lit day and night. When they move around, as well as during interrogation, the prisoners are blindfolded. Interrogations are often very long, 16 hours a day, we have been told, with police officers taking it in turns to interrogate. Insults and blows are commonplace, with prisoners sometimes being stripped naked. A number of cases of electrical torture have been reported. 22 defendants from the Fikri group wrote in March 2003 to the AMDH to testify. ‘The cell at Témara where I was held had a high ceiling and a small window at the top with thick bars. There was a hole for a toilet and a bucket of water’. Having being assaulted during his arrest, and still having a sprained knee, the witness continued ‘I was in agony and was asking for treatment, as my knee had become very swollen and blue. A warder then answered me “I’ll saw off your bloody knee, then”‘. Abderrazek Fawzi had been held since his arrest on 18 September 2002 in a single cell with no windows. There was only a foam mattress and a dilapidated blanket lying on the floor. Blindfolded and handcuffed, he was ‘grilled’. ‘During that interrogation in Temara’, he wrote, ‘I was punched and kicked, humiliated and insulted and left with cigarette burns on my hands. These twice-daily practices resulted in physical and mental suffering, of which I still have obvious signs, not to mention the nightmares and lack of sleep’. ‘... They took me in secret to Tamara, where I underwent a number of interrogations using terrible methods because I would never see the sun again, according to them’, said Salah Zarli. ‘I acknowledged that I had been to Afghanistan. They asked me to work with them to better understand the “Afghans”, especially the Afghan Moroccans and the Islamists in Milan, where I worked at the Islamic Institute. Four days later, they let me go and asked me to keep them informed.’ After being released, S. Zarli was arrested again on 3 September 2002: ‘Four people accompanied me home, searched everywhere and took away all my papers. Once again they took me to Temara, where they kept me a month and a half locked in a single cell that I would leave only for interrogation, which lasted 16 hours at a time; the interrogation began at 8 in the morning and went on until midnight. I was beaten all over, stripped naked, insulted, spat at, threatened and so on. All this without seeing the faces of my torturers. What interested them was the Islamists in Italy and those who were going to Afghanistan or Bosnia. They tried to bribe me by promising to help me set up a business.’ Cases of rape have been reported. Abdelghani Bentaous claimed to have been raped three times. Abdelmajid Rais said he was raped with a bottle and burned with cigarettes. Other detainees said they had been burned with cigarettes and suspended for hours or tortured by water-boarding. Bouchaïeb Kermej told his sisters that, in addition to the beatings and threats, he had once been given an injection at the top of the spine, as a result of which he thought he must have fainted. Several detainees who had refused to sign their statements were finally tortured into signing. This was claimed, for example, by Abdelghani Bentaous and Atchane to their lawyers and to the judge. ‘... Handcuffed and blindfolded, I was taken to the torture chamber where I was made to kneel and put my arms on my head to keep me like that during the long interrogation that followed. Whenever I hesitated and stuttered or made a mistake, I was beaten with a braided electric wire. I was struck on the head, back, soles of the feet, buttocks and thighs, also being slapped and punched on the face, which left me deaf in my left ear. A doctor then came to see me and prescribed medication. When I went back the torture room, one of the torturers tore my shirt off in front of my younger brother, who was screaming – I heard him but could not see him because I was still blindfolded. I was taken to torture sessions, where I spent the first night without sleeping because I was interrogated virtually non stop’ (Kamel Chtoubi). The family of Mohamed Chtoubi has claimed that he was raped with a bottle and has insisted on telling us that he was denied treatment in Okasha prison even though he could no longer sit down, as they noticed during his trial. Mohamed Chtoubi was subjected to constant blackmail, being told: ‘confess and your brother will be released’. ‘The day I saw him’, his sister recounts, ‘his nose and mouth were distorted by the blows’. ‘They became more and more perverse as the nightmare went on’, recounted Mohamed Chtoubi, ‘threatening to rape my mother, my wife and my sisters in front of me. They did not, however, forget the physical torture, using electricity, hanging me, choking me with wet rags ... I was abandoned because my condition seriously deteriorated and I spent whole nights screaming after horrible nightmares haunted me as soon as I tried to sleep, as well as not being able to eat anything. They refused me sleeping pills, just like they refused to give me a Koran ... The most difficult thing was above all the fear of being raped, with which I was constantly threatened, and the screams of those being tortured ... After 40 days of this, I no longer knew what was going on or what I was saying or what I was doing ... One day in the month of Ramadan (November 2002) I removed the cover of my mattress to turn it into a rope, which I then tied to the window to hang myself ... My groans attracted the attention of the warders. The doctor who I was taken to see, blindfolded, told them that my low blood pressure could have serious consequences.’ At that point the prison directors summoned Mohamed Chtoubi to tell him than any other attempt on his part would cost him his life and that he would be ‘buried in the nearby forest without anyone knowing what became of him ...’. Three or four days later, new torturers took over with the same methods ... Abderrahman Majdoubi, who was arrested in Tangiers on the night of 2 July 2002, spoke of a place where he was taken from the second day of his arrest, in the presence of five individuals ‘some of whom interrogated me and others beat me. One of them used the edge of a chopper to strike me and another a rubber-coated metal pipe to tap my knees ... then I was pulled and dragged along the ground to be taken to another cell where a torturer hit my face with his boots while his accomplice interrogated me ... In the evening, I was put into a car and when we arrived on the outskirts of Rabat, I was blindfolded.’ He found himself there in a situation of extreme violence and one of the torturers promised Abderrahman Majdoubi that by the time he got out he would weigh just a few kilos. ‘At night, I heard animal sounds ...’. On the same night, they resumed the interrogation with slapping and kicking and the threat of rape using a bottle, up until daybreak. ‘... The torture lasted for 20 days ... My knee hurt so badly that I prayed sitting down and I had to be taken to see a doctor. In that place, I spent my last three days, handcuffed and blindfolded. When I asked for some water for my ablutions and to say my prayers, I was told that I could do it without water and without moving ...’ Kamel Hanouichi, who was sentenced to the death penalty at the trial of Youssef Fikri, testified for his part that when he was taken to Témara, after being arrested in Casablanca, he was, like most of his accomplices, kept in solitary confinement, which was characterised by ‘conditions of extreme cold’. Once his fingerprints had been taken, Kamel Hanouichi did not escape the ritual of blindfolding and also had his feet bound. As he could not walk very quickly, he was beaten, even before being interrogated. ‘When they beat me on the arms and on the soles of my feet with electric cables as hard as rope it was still less painful than the idea that they could go through with their threat to rape my sisters ... for 15 days in a row I endured the same torture and the same questions: my life, my commitments, my friends – 15 days after which I was taken to another place still handcuffed and blindfolded. There I remained, from Thursday evening to Monday morning, in a stinking dirty cell with three other inmates in the same state as me and guarded 24-hours a day by three shifts of 10 to 12 warders. It was only on the Monday that we were examined by the investigating judge and sent to Okacha prison in Casablanca.’” The FIDH further indicated that, according to its own findings, “acts of violence, including torture and cruel, inhuman and degrading treatment, committed against accused persons, together with breaches of the right to a fair trial, including defence rights ... [were] flagrant”. It noted in particular the hurried nature of the investigation phase and non-compliance with safeguards enshrined in Moroccan law, such as the right to have a lawyer and to see a doctor, before both the public prosecutor and the investigating judge. It observed in particular as follows: “... Apparently being bound by an immediate obligation to produce a result, investigating judges have clearly taken liberties with the provisions of Moroccan law: ‘the judicial investigation certainly took place in atrocious conditions, often after midnight and even at 3 or 4 in the morning’ said one lawyer. The accused would wait for hours in the police van, where they would occasionally be allowed to drink. As to the interrogation itself, it was based, according to a lawyer, on a questionnaire that was practically completed beforehand, and the accused had to be precise in answering. ‘Don’t talk to me about anything that’s not connected with the case’, a judge told an accused who was trying to give an explanation. The charges were sometimes supported only by a denunciation or a mention by a third-party or other accused person, usually following ill-treatment or torture. The files rarely contained documents proving possession of weapons or explosives or participation in prohibited associations. ... According to the lawyers ..., the reports drafted by the investigating judges during the preliminary investigation stage were based mainly or exclusively on the reports of the DST, and the judges did not allow them to be challenged, or obliged some of the accused to sign them without being able to read them first ... Neither the public prosecutor nor the investigating judge ordered a medical examination in any of the numerous sets of proceedings, which concerned, as has already been mentioned, hundreds of individuals. Such examinations would have constituted not only a safeguard for the accused, but also for the police officers accused of torture. Similarly, the lawyers found their requests for experts’ reports and for the summoning and appearance of witnesses systematically denied. ... Before [the trial courts], the judges systematically refused to take account of the documents that the defence wished to present, or to hear witnesses for the defence and arrange confrontations that were necessary for the establishment of the facts, basing their findings exclusively on unilateral accusations that remained unsupported by evidence. Systematically, the courts first deferred the calling of witnesses until the end of the proceedings, then decided, after they had finished, to join the lawyers’ requests to the merits, delivering verdicts without ultimately allowing such hearings, even though they were guaranteed by a number of Articles (319, 430, 464, etc.) of the Code of Criminal Procedure. ... It unfortunately goes without saying that all the defence’s objections concerning the above-mentioned violations occurring during the periods of police custody and judicial investigation, were also dismissed in all the sets of proceedings, without exception as far as we know. In this connection, no request for a medical opinion, in order to support the allegations of ill-treatment, was accepted. ...” 55. In the above-mentioned report, published on 24 June 2004 and entitled “Morocco/Western Sahara: Torture in the ‘anti-terrorism’ campaign - the case of Témara detention centre”, Amnesty International indicated in particular as follows: “... The sharp rise in reported cases of torture or ill-treatment in the context of ‘counterterrorism’ measures in Morocco/Western Sahara since 2002 has been well documented. Reports on the subject have been published in recent months by Amnesty International and other international human rights organizations, as well as by Moroccan human rights groups, including the Moroccan Human Rights Association (Association marocaine des droits humains, AMDH), and the Moroccan Human Rights Organization (Organisation marocaine des droits humains, OMDH). Human rights lawyers and victim support groups such as the Forum for Truth and Justice (Forum pour la vérité et la justice, FVJ), have spoken out about the violations, and the Moroccan and international press have highlighted the problem in numerous articles. The torture or ill-treatment is generally reported to take place in the custody of the security forces, particularly the Directorate for the Surveillance of the Territory (Direction de la surveillance du territoire, DST), and the police, where it is allegedly perpetrated in order to extract confessions or information, or to force the detainee to sign or thumb-print statements, the content of which they reject, deny or do not know. The scores of people allegedly tortured or ill-treated have been among hundreds of Islamists or presumed Islamists arrested and detained on suspicion of belonging to ‘criminal gangs’ or of involvement in planning, inciting or carrying out violent acts. The arrests, numbering some 2,000 according to official sources, began in 2002 when the authorities began a clampdown on individuals accused of being part of groupings of Islamist activists who, in the case of one particular group, were planning bomb attacks or who had reportedly been involved in a number of targeted killings of people whose behaviour they disapproved of. Since May 2003, many of those arrested have been accused in connection with the bomb attacks in Casablanca on 16 May 2003, which killed 45 people, including the 12 assailants. Scores have been sentenced to long prison sentences and over a dozen to the death penalty following trials in which evidence reportedly extracted by torture or ill-treatment has been used to obtain convictions. The detention centre of Témara, operated by the DST, is one of the main places where torture is reported to occur. Dozens of those arrested in the context of ‘counterterrorism’ measures have allegedly been subjected to torture or ill-treatment while being held there. Their detention at the centre has been both secret and unacknowledged, and consequently in breach of both Moroccan law and international human rights standards. ...” Amnesty International reported that many former prisoners from Témara had complained of being tortured or ill-treated during interrogation sessions, in an attempt to extract confessions or information from them or to force them to sign or thumb-print statements which they rejected or denied. It added that in many cases the statements had been signed or thumb-printed after the detainees had been transferred from the Témara centre to a police station, where they were threatened with being returned to Témara and with further torture should they refuse to comply. As to the treatment inflicted, Amnesty International explained as follows: “... The torture or ill-treatment has taken a number of forms during interrogation sessions. Some detainees have allegedly been blindfolded and handcuffed throughout the session; others have been stripped or suspended from the ceiling of the interrogation room in contorted positions. Many have reported being beaten around the body and the head with fists or an implement, such as a wooden stick or a metal ruler. Reports have also indicated that electricshock batons or live electrodes were applied to the body of some of the detainees. One former detainee, Abdellah Meski, told Amnesty International that he had his head repeatedly plunged into a sink containing water. Some have reportedly had an object, such as a bottle, forcibly inserted into the anus or been threatened with this treatment and other sexual abuse. Some say that they were also threatened with the arrest and rape or other sexual abuse of their wife or other female relative. Some former detainees have even reported hearing screams which they believed at the time might have been those of a female relative in an adjoining room, but later, after leaving the Témara centre and confirming that no female relative had been detained there, concluded this might have been a tape recording meant to dupe them. ... Former detainees have reported that, throughout their time at the Témara centre, whether for a few days or a few months, they were held in solitary confinement in basic cells, containing blankets on the floor rather than a bed, and a toilet and tap in one corner. They say they never saw other detainees and were not allowed outside the cell to enjoy fresh air or exercise. In addition, they were held in secret detention and denied contact with the outside world. Such conditions of detention may themselves amount to cruel, inhuman or degrading treatment, or even torture. ...”. Amnesty International further noted that government officials had, in press interviews, stressed that no complaints were made about torture or ill-treatment or secret detention when detainees were brought before the prosecutor after the police custody, explaining that if such complaints were made following the initial questioning they were dismissed as being merely a means of defence. On the first point, Amnesty International explained this situation by the fact, in particular, that the judicial authorities failed to inform the persons concerned of their right to be assisted by a lawyer and that, appearing alone, many were unaware that they were entitled to make such a complaint. On the second point, it criticised the judicial authorities’ attitude as follows: “... When, during the pre-trial investigation, they have appeared again before the examining magistrate for detailed questioning, they have in many cases complained about the alleged torture or ill-treatment or secret detention. When their cases have come to court, many of the accused have complained again, this time in front of the trial judges, about the treatment they were subjected to and the illegally prolonged nature of the period of garde à vue. Defence lawyers have requested that family members who witnessed the arrests and police officers who drew up the police statements be called to testify before the court to help establish the facts surrounding the contested arrest dates and the circumstances in which declarations were made to the police. The requests have been systematically rejected, however, on the basis that the proposed testimonies did not relate directly to the alleged crimes. Despite the persistent nature of allegations of torture or ill-treatment and secret detention, the judicial authorities appear to have repeatedly dismissed these allegations, without ordering investigations or medical examinations. Amnesty International is not aware of a single case in which an investigation or medical examination has been carried out. ...” Amnesty International further observed that statements obtained by torture or ill-treatment were often used in court as evidence to obtain convictions, even though the accused generally retracted them in the courtroom. It added that during their trials many accused challenged evidence against them which had been taken from statements made by others who had been arrested and detained by the security forces on similar charges. Given the persistent allegations of statements being made to the security forces under duress, defence lawyers had requested that those who made statements be summoned to the court as witnesses in order to test the veracity of their evidence. Such requests had, however, been denied by the courts on a systematic basis. | This case concerned the arrest and conviction of a Moroccan national for participating in the activities of a terrorist group. The applicant complained in particular that his right to a fair trial had been violated because some of the statements used in evidence against him had allegedly been obtained in Morocco by means of treatment contrary to Article 3 (prohibition of torture or inhuman or degrading treatment) of the Convention. |
50 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1981 and lives in Kharkiv, Ukraine. A. Background 6. The applicant lived with her partner, a dual Georgian-Ukrainian national, Mr G. Ch., in Kharkiv. On 29 July 2004 their first child, L., was born; he was registered in Ukraine at the applicant ’ s address and acquired Ukrainian citizenship. 7. Some time in mid-2005 G. Ch. left Ukraine for Russia. L. continued to live with his mother and attended a pre-school educational institution in Kharkiv. 8. In 2005 and 2006 G. Ch. visited the applicant and L. twice. In September 2006 the applicant gave birth to another child of the couple, T. 9. On 22 July 2010 T. died in an accident. She fell from an open window of an apartment. L., who had apparently witnessed the tragic incident, started receiving psychological help in the form of dolphin-assisted therapy. 10. On 30 July 2010 the applicant allowed G. Ch. to take their son for the first time to Georgia for the summer holidays. She signed a document authorising G. Ch. to travel with L. to Georgia and Russia between 30 July 2010 and 28 February 2011. According to the applicant, L. was expected to return to Kharkiv by the end of August in order to start in September at a primary school in which he had been pre-enrolled. 11. On 13 August 2010, the applicant learned when talking on the telephone with her son that the latter would not be returning to Ukraine and would be staying in Georgia. For two months the applicant tried to persuade her former partner to allow their child to return to Ukraine, to no avail however. It appears that soon after this G. Ch. left for Russia, while L. stayed in Georgia with his uncle, G. Ch. ’ s brother, and his grandfather. G. Ch. travelled occasionally to Georgia to see his son. 12. On 16 November 2010 L. was diagnosed with an adjustment disorder and began having outpatient treatment. B. The proceedings in Ukraine 13. On 22 March 2011 the Kievskiy District Court of Kharkiv ordered L. ’ s return to Ukraine. The court ruled that L. ’ s place of permanent residence should be that of the applicant. 14. G. Ch. was not apparently informed of the institution of the above proceedings. He did not accordingly appeal against that decision. C. The proceedings in Georgia 15. In October 2010 the applicant initiated child return proceedings under the Hague Convention via the Ministry of Justice of Ukraine. On 18 November 2010 the latter contacted the Ministry of Justice of Georgia and requested legal cooperation on the matter. On 2 December 2010 the Ministry of Justice of Georgia, acting as the central authority responsible for the obligations established by the Hague Convention, instituted proceedings on behalf of the applicant before the Tbilisi City Court. 16. On 10 February 2011 two social workers went to see L. at the request of the Tbilisi City Court. They visited him at his uncle ’ s apartment, where he was living with his cousins. According to the report drawn up thereafter, L. was being looked after by his uncle, since his father was mainly based in Russia. The boy spoke Russian, although he had started attending a Georgian school. L. ’ s uncle told the social workers that L. ’ s sister had died as a result of their mother ’ s lack of attention; hence it was dangerous for L. to live with his mother. The social workers also had a short conversation with L. during which he stated that he was happy with his uncle and cousins, and did not want to go back to Ukraine. In conclusion, the social workers noted that L. was living in appropriate living conditions, and that his basic needs were being met. 17. In April 2011 the social workers set up and attended three meetings between the applicant and her son. In the report drawn up thereafter they concluded the following: “On the basis of our intervention, which included visits, conversations with L. and observation of his behaviour, we consider his behaviour to be problematic. In particular, although L. wants to see his mother, and when seeing her expresses his love, warm feelings and happiness, he refuses subsequently to talk to her on the telephone. It should be underlined that when communicating with his mother he is following his father ’ s prompting and is stressed. Given that L. is living in the family of his uncle and grandfather, he lacks relationship with his parents (since neither of the parents lives with him). In order for a child to develop into a contented and healthy individual, and to have his interests protected, it is necessary for him to communicate with his parents.” 18. In the same report the social workers noted that during one of the meetings they noticed that the boy, prompted by his father, had stopped hugging his mother. This happened twice, until one of the social workers warned G. Ch. to stop doing this. 19. In April L. additionally underwent a psychological examination, which concluded that the boy was suffering from insufficient emotional relationship with his parents. It was noted that L. had a clearly positive attitude towards his father and the paternal family, while with respect to the mother his attitude was twofold: love and warm feelings on the one hand, and anxiety on the other. L. indicated to a psychologist that he wanted to live with his father and his father ’ s family and wanted his mother to be with them too. In her conclusions about his emotional condition the psychologist noted that the boy ’ s nervousness, aggression, distrust, and irritability, as well as low self-esteem, were caused by psychological trauma he had suffered in the past, as well as by his current complicated and barely comprehensible situation. 20. On 16 May 2011 the Tbilisi City Court refused the applicant ’ s request. The court concluded, having regard to the boy ’ s age and other circumstances of the case, that his return to Ukraine would expose him to psychological risk. It stated in this connection that it would be inappropriate to order the boy ’ s return to Ukraine, since the applicant had failed to show that she could create a stable environment for her son in which he could be protected from psychological risks related to the separation from his father. The court further noted the following: “The court considers that in the current case, having regard to a psychologist ’ s report which categorically states that L. suffered a serious psychological injury, it is with high probability that if returned to Ukraine the child would be exposed to “physical or psychological harm or otherwise place [d] in an intolerable situation” (Article 13 of the Convention).” 21. The court dismissed the applicant ’ s argument that her son was suffering from an adjustment disorder and lacked communication with his parents. It noted in this connection the following: “In view of a psychological examination the court particularly stresses the following – “L. Ch. has revealed ... high level of anxiety ... and fear of the future”, “twofold attitude towards his mother, which implies love and warm feelings as well as strong anxiety,” according to the same report, it was established that [he suffers from] “lack of emotional relationship with both parents” and “positive attitude towards his father and the paternal family” especially towards the grandfather (N. Ch.). The court further particularly underlines the fact that minor L. Ch. expresses the wish to live with his father and the paternal family. At the same time, he wants his mother (G. S.) to stay with them ... The court cannot accept the argument of the requesting party that the child is having adaptation difficulties because of the separation from his mother and because he is being kept in Georgia. The above opinion is not supported by any evidence and is not substantiated ... There is an attempt on the father ’ s side to take every possible measure ... to treat [the boy ’ s] psychological condition.” 22. As to the risks related to the boy ’ s return to Ukraine, the court stated : “Hence, the court considers that the return of L. Ch. to Ukraine (in view of his current condition) would imply his return to an uncomfortable situation, which would result in his psychological stress and would place him at psychological risk, even if he returned to Ukraine with his father. Separation from his father and the paternal family and his return to Ukraine (at this stage) would cause mental deterioration of the child and from a psychological point of view would inevitably create a risk [for the boy]. (The requesting party failed to prove the opposite). “ 23. That decision was overturned on 27 October 2011 by the Tbilisi Court of Appeal, which ordered L. ’ s return to Ukraine. The appeal court observed that L. had been born and had lived in Kharkiv, so he had adapted to the situation in Ukraine. Further, according to the psychological and social welfare reports, the boy was suffering from adaptation difficulties and lacked sufficient communication with his parents. In this connection, the court stressed that L. had indeed suffered psychological trauma as a result of the accidental death of his sister; but, according to the very same reports, he was also suffering because of the situation he was currently in. Hence, it was within the best interests of the child to be reunited with his mother. The court further noted: “The above - mentioned conclusions confirm that the current situation for [the boy] is complicated and hardly comprehensible. Accordingly, in view of the interests of L. Ch., since there is no obvious risk of a negative impact on his mental state if he were returned to his mother, it would be appropriate that he be returned to his parent (the applicant G. S.) and to his habitual place of residence.” 24. As to the death of L. ’ s sister, the appeal court noted that related criminal proceedings had been dropped, as it had been concluded that it had been a tragic accident. It further noted in connection with the psychological trauma the boy suffered as a result, that “ ... already traumatised child should not be separated from his parents. This should be viewed as a decision taken in the interests of the child. As was noted in the appealed decision, L. before his arrival in Georgia had been having dolphin-assisted rehabilitation treatment. At the same time, his stay with his mother cannot be harmful to him, since she has been doing an internship at the psychiatric hospital ... ” 25. G. Ch. appealed against this decision on points of law, alleging that the court of appeal had incorrectly interpreted the Hague Convention and the facts of the case. On 22 August 2012, without holding an oral hearing, the Supreme Court allowed the appeal on points of law, thus reversing the judgment of 27 October 2011. On a general note, in connection with the purpose of the initiated proceedings the court noted the following: “The subject matter of the pending application is the return to Ukraine of a child (L. Ch.) wrongfully retained in Georgia ... The cassation court pays attention to the analysis developed in the preamble of the Convention concerning its aims, according to which the interests of the child are of paramount importance when examining childcare - related issues. At the same time, the High Contracting Parties to the Convention undertook an obligation to provide international protection to children against any harmful effects of their wrongful removal or retention. Accordingly, it implies that the procedures provided for by the Convention which aim at the speedy return of a wrongfully removed or retained child to his or her habitual place of residence serve the main purpose of protecting children ’ s interests. In view of all the above - mentioned, the cassation court when considering the lawfulness of the request to end wrongful retention of a child considers it appropriate within the scope of the appeal on point of law to also examine the issue as to what extent the child ’ s interests would be protected in the event of his return which together with other factors implies the creation of a safe environment for a child. The above analysis of the cassation court finds its basis in the exceptional clauses of the Convention which in individual cases allow the relevant bodies of the receiving state to refuse the return of a child (Article 13 of the Convention).” 26. The Supreme Court further considered that the applicant had failed to show that the return of L. to the pre-abduction situation would be possible without damaging his interests. Notably, the court concluded: “ The cassation court wholly shares the view of the appeal court, according to which L. is suffering from lack of relationship with his parents; accordingly, in order for the child to develop into a contented and healthy individual and to have his interests protected it is necessary for him to communicate with his parents. However, as was noted above, when dealing with this type of case particular attention should be given to the consideration of exceptional circumstances ... The appellant alleges a violation of Article 13 § b of the Convention (there is a serious risk that if returned the child would be exposed to physical or psychological harm or otherwise placed in an intolerable situation) and considers that the impugned decision omits the primary reason for L. Ch. ’ s leaving Ukraine, namely the tragic death of T. Ch. in July 2010, which fact had a negative impact on the psychological condition of L. Ch. ... The cassation court notes the results of the available psychological examination, in which the psychologist along with other issues stressed the high level of traumatisation in L. Ch. as a result of the death of his younger sister. At the same time, the psychologist considers the psychological features observed to be the boy ’ s reaction to the psychological trauma which he had suffered and to the current barely comprehensible situation. It is noteworthy that even the court of appeal could not omit the fact that as a result of the death of T. Ch. (the sister of L. Ch.) the latter had suffered mental trauma and is as of 16 November 2010 registered at a ... psychiatric institution .... However, the above - mentioned circumstances were not sufficient [for the appeal court] to refuse the return of the boy. The cassation court considers that there is no evidence in the case file which would lead the court to believe that it would be possible to return the child to his pre-abduction environment without damaging his interests. In the opinion of the cassation court, the appellant validly substantiated, on the basis of relevant evidence, the risk factors which are inconsistent with the purposes of the Convention, while the respondent failed to show a higher purpose which could have been achieved by putting an end to the unlawful situation and [she had also] failed to demonstrate that in the event of the child being returned to Ukraine his interests and rights would not be even more violated. Accordingly, bearing in mind that the primary purpose of the Convention on Civil Aspects of International Child Abduction is the protection of the interests of a child, the cassation court considers that the appellant has lodged a substantiated complaint. ” 27. To conclude, in reference to Article 13 § b of the Hague Convention, the Supreme Court observed that the main purpose of the Hague Convention was the protection of the best interests of a child, and that accordingly, given the well-substantiated risks that L. was facing upon his return to Ukraine, the exception clause should have been invoked. 28. The case file indicates that G. Ch. did not take part in the relevant court proceedings, as he was not in Georgia at the material time. L., according to the case file, is currently living with his uncle and grandfather in Tbilisi. | This case concerned proceedings in Georgia for the return of the applicant’s son, born in 2004, to Ukraine. Her former partner decided to keep their son in Georgia with family at the end of the summer holidays in 2010, while himself living in Russia and occasionally visiting his son in Georgia. The applicant complained in particular about the refusal of the Georgian courts to order the return of her son to Ukraine and about the length of the return proceedings. |
392 | Indication of interim measureshunger strike | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1946, 1953, 1966 and 1972 respectively. They are currently detained in Mostar Prison in Bosnia and Herzegovina. 7. On different dates the applicants were convicted of war crimes perpetrated against Bosniac (at the time, Bosnian Muslim) civilians during the 1992-95 war in Bosnia and Herzegovina. They were committed to Zenica Prison on 16 August 2004 (Mr Rodić ), on 4 February 2005 (Mr Pušara ), on 10 May 2005 (Mr Knežević ) and on 12 October 2004 (Mr Baković ). Zenica Prison is the only maximum-security prison in the Federation of Bosnia and Herzegovina (a constituent Entity of Bosnia and Herzegovina ). Its population is mostly made up of Bosniacs (approximately 90 per cent). 8. On 7 March 2005 Mr Pušara asked to be transferred to Foča Prison, in the Republika Srpska (the other constituent Entity of Bosnia and Herzegovina), in order to be closer to his family. On 28 March 2005 the Ministry of Justice of the Federation of Bosnia and Herzegovina (“ the Federation Ministry”) informed him that a prison transfer between the two Entities was not allowed. 9. On 2 May 2005 at 6 p.m. offensive graffiti referring to Mr Rodić and Mr Baković were discovered in the prison canteen. Those responsible for the graffiti were never identified. 10. On 19 May 2005 the Federation Ministry informed Mr Knežević also that a prison transfer between the two Entities was not allowed. 11. On 4 June 2005 at 9 p.m., following the screening of a video which showed a 1995 killing of Bosniacs from Srebrenica, another prisoner, N.F., lured Mr Pušara into his cell and punched him in the eye with a clenched fist. On 7 June 2005 Mr Pušara was treated in a civil hospital in Zenica. According to an official report, the attack was ethnically motivated, the attacker had a piece of glass in his hand and the consequences could have been more serious had it not been for the intervention of another prisoner. 12. On 5 June 2005 at 4 p.m. another prisoner, J.H., attacked Mr Baković in the prison canteen. The prison guards intervened after Mr Baković had received several blows to the head. He was treated in a civil hospital in Zenica on the same day. 13. On 8 June 2005 the applicants declared a hunger strike in order to attract public attention to their situation. They were immediately placed in the Zenica Prison hospital unit. 14. On the same day, the Disciplinary Board of Zenica Prison sentenced N.F. and J.H. to twenty days ’ solitary confinement in connection with the incidents of 4 and 5 June 2005. 15. On 10 June 2005 the Federation Ministry set up an ad hoc commission of independent experts (“ the ad hoc commission”) with a view to investigating the incidents of 4 and 5 June 2005. 16. On 15 June 2005 the Ministry of Justice of Bosnia and Herzegovina (“ the State Ministry”) ordered the applicants ’ transfer to Istočno Sarajevo Prison, in the Republika Srpska, for security reasons. 17. On 19 June 2005 the ad hoc commission issued its final report. It referred to prison records showing that the prison management had been aware of the need to protect the applicants from the time of their arrival in Zenica Prison. The prison management confirmed to the ad hoc commission that special measures had indeed been considered, but that it had been unable to introduce any such measures because of the lack of prison staff, the lack of space (80 prisoners more than the prison ’ s official capacity), the lack of another maximum-security prison in the Federation of Bosnia and Herzegovina and the fact that prison transfers between the Entities were not envisaged. Seven other prisoners detained in Zenica Prison (six Bosniacs and one Serb), who had also been convicted of war crimes, testified before the ad hoc commission, claiming that the applicants had good reasons to fear for their lives. The witness of Serb origin, D.S., maintained that he had also been and still was subjected to persecution by his fellow prisoners because of the nature of his offence. The report criticised the prison authorities for their failure to duly protect the applicants. 18. On 21 June 2005 the Federation Ministry ordered that the applicants remain in Zenica Prison, in its hospital unit, until further notice. 19. On 23 June 2005 Zenica Prison entrusted a four-member team (which included three medical doctors) with the monitoring of the applicants ’ state of health (because of their hunger strike). 20. On 1 July 2005 the applicants discontinued their hunger strike in compliance with the interim measures indicated by the Court (see paragraph 4 above). 21. On 18 July 2005 a delegation of the Parliamentary Assembly of Bosnia and Herzegovina visited Zenica Prison and interviewed the prison management and the applicants. The prison management maintained that the separation of prisoners according to the nature of their offences was not feasible. The applicants, for their part, accused the prison staff of being uncaring. Two reports based on the above interviews were submitted to the Parliamentary Assembly of Bosnia and Herzegovina : on 27 July 2005 and on 16 September 2005. The first report required, without going into any details, that the applicants ’ human rights be secured. The second report required, among other things, that equality of conditions between the applicants and other prisoners be secured or, if this was impossible, that the applicants be transferred to another prison. 22. On 18 July 2005 the Disciplinary Board of Zenica Prison found M.H. guilty of an offence against prison discipline (incitement to the attacks on the applicants of 4 and 5 June 2005 ) and sentenced him to fifteen days ’ solitary confinement. Furthermore, the prison management filed criminal charges against M.H. 23. On 12 August 2005 the applicants complained to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) about the failure to enforce the decision of 15 June 2005 ordering their transfer to another prison (under Article 6 of the Convention) and about the conditions of their detention in Zenica Prison (under Article 3 of the Convention). They also applied for interim measures (pursuant to Rule 77 of the Constitutional Court ’ s Rules). 24. On 24 November 2005 Mr Baković was transferred to another prison in the Federation of Bosnia and Herzegovina, namely Mostar Prison. 25. On 28 November 2005 the three applicants who had remained in Zenica Prison declared a new hunger strike protesting against the conditions of their detention in the hospital unit. On 30 November 2005 a team appointed by the prison management met with them. It would appear that the applicants acknowledged that some outstanding problems had meanwhile been resolved. However, they did not discontinue their hunger strike until 9 December 2005. 26. On 14 December 2005 Mr Rodić was transferred to Mostar Prison. 27. On 20 December 2005 the Constitutional Court decided not to apply interim measures in the present case. 28. On 20 September 2006 the Constitutional Court decided that it lacked subject-matter jurisdiction to examine the complaint about non ‑ enforcement of the decision of the State Ministry of 15 June 2005, as the impugned decision concerned neither the applicants ’ “civil rights” nor a “criminal charge” against them. As to the complaint about the conditions of the applicants ’ detention, the Constitutional Court deemed that the applicants should have petitioned prison inspectors before addressing the Constitutional Court, and dismissed the complaint on non ‑ exhaustion grounds. 29. On 19 October 2006 the remaining two applicants were also transferred to Mostar Prison. | This case concerned the detention of the applicants who had all four been convicted of war crimes against Bosnian civilians. They were placed in the prison of Zenica (a high-security prison where most inmates were Bosnians) in August 2004, February 2005, May 2005 and October 2004 respectively. The applicants complained, in particular, of having been persecuted by other inmates from their arrival at the prison until their transfer to the prison hospital wing. On 8 June 2005 the applicants went on hunger struck to draw the public’s attention to their situation. They were immediately placed in isolation in the prison hospital service. On 15 June 2005 the Ministry of Justice of Bosnia and Herzegovina ordered the applicants’ transfer to another prison, for security reasons. The applicants complained unsuccessfully to the Constitutional Court of Bosnia and Herzegovina about the failure to enforce that decision. They were eventually transferred to Mostar prison between November 2005 and October 2006. |
204 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1957, 1966, 1962 and 1957 respectively and live in Baku. 6. The first applicant, Mr Panah Huseyn (also sometimes referred to as Panah Huseynov), was a prominent member of the Popular Front Party of Azerbaijan. The second applicant, Mr Rauf Abbasov ( commonly known as Rauf Arifoglu), was a prominent member of the Müsavat Party and the editor-in-chief of the opposition-oriented newspaper Yeni Müsavat. The third applicant, Mr Arif Hajili, was a deputy chairman of the Müsavat Party. The fourth applicant, Mr Sardar Mammadov (commonly known as Sardar Jalaloglu), was a deputy chairman of the Democratic Party of Azerbaijan. 7. The respective political forces with which the applicants were affiliated were founders of the election coalition Bizim Azerbaijan, formed with the aim of supporting the main opposition candidate, Mr Isa Gambar, the chairman of the Müsavat Party, in the presidential elections of 15 October 2003. A. Events of 15 and 16 October 2003 8. Mr Gambar lost the elections of 15 October 2003. 9. On the evening of election day a group of opposition supporters gathered in front of the Müsavat Party ’ s headquarters in the centre of Baku, claiming victory for their candidate in the election. At that time there were some violent altercations between opposition supporters and the security forces. 10. At around 2 p.m. on 16 October a number of opposition supporters started gathering near the State Carpet Museum, in the centre of Baku, to protest against the election results. The crowd then started moving towards Azadliq Square, the main square in the city. It was reported that, on the way, some people in the crowd began damaging cars, buildings, benches and other urban constructions. It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence. 11. It has been claimed that some police officers who had been deployed at Azadliq Square were attacked by some of the demonstrators. Shortly thereafter large numbers of riot police and military personnel, fully equipped with helmets, shields and truncheons, arrived in the square with the aim of dispersing the demonstration. The situation quickly escalated into public disorder and violent clashes occurred between the crowd and the police. It was widely reported that the authorities used excessive force indiscriminately against anyone who happened to be in the area in question. 12. The applicants, among other persons, were considered by the State authorities to be the organisers of the demonstration. At around 2. 30 p.m. all of the applicants, except Mr Mammadov, had appeared on a tribune in Azadliq Square. Mr Hajili gave a speech to the people gathered in the square, while the two other applicants did not. Mr Mammadov was in the headquarters of his political party at that time and, according to his own statements, was unable to go to Azadliq Square (although he wished to do so), because the exits from the headquarters were reportedly blocked by State security forces. 13. At around 6 p.m. the demonstration was completely dispersed. Several hundred people were arrested during the events of 16 October and in their aftermath. B. Institution of criminal proceedings and pre-trial investigation 1. The applicants ’ arrests 14. On 16 October 2003 the Prosecutor General ’ s Office instituted criminal proceedings (case no. 80308 ) concerning the events of 15 and 16 October 2003. More than a hundred persons arrested in connection with those events were eventually prosecuted in the context of those proceedings. The proceedings concerned only the actions of the organisers of the demonstration and those participating in it, and it appears that no criminal or other form of investigation was carried out in connection with the allegations of excessive use of force by the police and military units during the dispersal of the demonstration (see Muradova v. Azerbaijan, no. 22684/05, § § 23 and 114, 2 April 2009 ). 15. In the context of the above- mentioned criminal proceedings, on the dates specified below all of the applicants were arrested and charged with criminal offences. 16. The first applicant, Mr Panah Huseyn, was arrested at his home on 18 October 2003 by a number of police officers of the Organised Crime Department of the Ministry of Internal Affairs (“ the OCD ”). He was taken to the OCD ’ s detention facility. 17. According to the second applicant, Mr Rauf Abbasov, on 17 October 2003 several police officers in plain clothes unsuccessfully attempted to arrest him. Thereafter, in order to avoid being arrested, the applicant sought refuge in the Norwegian Embassy until 21 October 2003. He left the Embassy after he received assurances from the police that he would not be arrested. However, on 27 October 2003 he was arrested and taken to Detention Facility no. 1. 18. As for the third applicant, Mr Arif Hajili, on 21 October 2003 the Nasimi District Court remanded him in custody, on the basis of a request by the Prosecutor General ’ s Office. The applicant was not present personally and was not represented at that hearing. On 24 October 2003 he was arrested pursuant to the detention order. 19. The fourth applicant, Mr Sardar Mammadov, was arrested at his home on 18 October 2003 and taken to the OCD (see Mammadov v. Azerbaijan, no. 34445/04, § § 6-14, 11 January 2007, for a more detailed description of the circumstances of the fourth applicant ’ s arrest and detention ). 20. Following their arrests, the first, third and fourth applicants were not given immediate access to a lawyer (see section B.4 below). 21. All of the applicants were formally charged with offences of “organising public disorder” and “use of violence against State officials” under Articles 32.2, 220.1 and 315.2 of the Criminal Code. On the basis of relevant requests by the Prosecutor General ’ s Office, all of them were remanded in custody pursuant to a court order, with their detention subsequently being extended until the trial. 2. Alleged ill-treatment of the first, second and fourth applicants 22. The first applicant was kept in the OCD ’ s detention facility until 22 October 2003. Thereafter, he was transferred to another detention facility. According to him, during the five days of his detention in the OCD he was repeatedly ill-treated. He was also informed that several of his relatives, including his brother, had been detained. He was not allowed access to a lawyer until 23 October 2003 (see below). After his transfer to another detention facility, for an unspecified period of time he was kept in solitary confinement and was not allowed to possess writing accessories, books, a radio or newspapers. 23. In February 2004 the first applicant, together with several other detained persons (none of whom are applicants in the present case), lodged a complaint with the Prosecutor General ’ s Office, alleging that they had been ill-treated during the first few days of their detention and seeking to have criminal proceedings opened against the perpetrators. On 14 February 2004 their complaint was rejected as unsubstantiated. In particular, in respect of the first applicant, it was noted that he had not made any allegations of ill-treatment in the immediate aftermath of his initial questioning, that the various allegations he had made at different times had been inconsistent, and that, when given the opportunity to undergo an examination by a forensic expert, he had refused to do so, stating that there were no injuries on his person. It was concluded that no evidence of ill ‑ treatment had been produced. 24. During the trial proceedings (described in section C. below), the first applicant complained before the trial court that he had been tortured in the OCD. Responding to a number of specific questions put to him in connection with his allegations, he mentioned that he had been handcuffed and punched in his chest and kidneys and that it had been hinted to him that his son would be ill-treated, but he expressly refused to provide any further details of the alleged torture, stating generally that he had “never seen such cruelty”. He also refused to mention any names of the alleged perpetrators because “they were not important people”, and instead accused the President, the Minister of Internal Affairs and the Head of the Presidential Administration of “making orders” to ill-treat him. He also mentioned that, from what he had heard, many other people had also been ill-treated. It appears that the trial court dismissed his complaints of ill-treatment as unsubstantiated. 25. According to the second applicant, during the first thirty-six days of his detention in Detention Facility no. 1, he was held in a single cell and was not given access to writing materials, books, newspapers or a radio. 26. The fourth applicant ’ s ill-treatment was the subject of an earlier case examined by the Court (see Mammadov, cited above ). 3. Pre-trial investigation, severing the applicants ’ case from criminal case no. 80308, and completion of the pre-trial investigation 27. Throughout the period from the beginning of the criminal proceedings until 1 March 2004, the investigation into the accusations against the applicants, as well as other accused persons, was carried out within the framework of criminal case no. 80308. 28. On 1 March 2004 the head of the investigation team issued a decision severing a new criminal case (no. 80365) from criminal case no. 80308. The new case concerned seven accused persons in total, including the four applicants and Mr I. Agazade, Mr I. Ibrahimov and Mr E. Asadov. The following reasons were given for the decision: “The investigation has gathered sufficient evidence to prove the named persons guilty of having committed the offences with which they are charged. The criminal prosecution in respect of the other accused persons is continuing ... The especially large volume of material in the case file and the large number of incidents comprising the case would make it necessary to prolong the pre-trial investigation and pre-trial detention. This would create difficulties in ensuring the rights and lawful interests of the accused persons in respect of whom sufficient evidence has been obtained and, at the same time, would result in an unacceptable delay in referring the case to the trial court. Accordingly ... it is appropriate to sever a new criminal case from criminal case no. 80308 ..., to complete the pre-trial investigation in respect of the severed case and to refer it to the trial court.” 29. It appears that the pre-trial investigation in respect of criminal case no. 80365 was formally declared completed on the same day, 1 March 2004. 4. Legal representation of the applicants throughout the proceedings, and their lawyers ’ access to the investigation file upon completion of the pre-trial investigation 30. Below is the information on the legal assistance received by the applicants, the lawyers who represented them, and the circumstances in which they were given access to the investigation file after completion of the pre-trial investigation and before the trial proceedings, inasmuch as this can be discerned from the material available in the case file. (a) The first applicant 31. Following his arrest on 18 October 2003, the first applicant, Mr Huseyn, was not allowed access to a lawyer until 23 October 2003. From that date on, he was represented by Mr M. Hadi. 32. Following the completion of the pre-trial investigation on 1 March 2004, the applicant and his lawyer, Mr Hadi, were given access to the prosecution ’ s case file and on 6 April and 15 April 2004, respectively, they signed a record on familiarisation with the material in the case file. According to the applicant, his lawyer was granted access to the entire case file for only one working day. 33. Subsequently, starting from an unspecified date during the trial, Mr Huseyn was also represented by another lawyer, Mr S. Panahov. (b) The second applicant 34. After his arrest, the second applicant, Mr Abbasov, was represented by a State-appointed lawyer. The lawyer was subsequently replaced by three lawyers whom the applicant retained in October and November 2003. One of these lawyers was Mr T. Karim. 35. It appears that, following the termination of the pre-trial investigation, Mr Karim was given access to the case file and signed a record on familiarisation with the material in the file, dated 15 April 2004. Mr Abbasov himself was also given access to the case file. According to him, he was given less than 100 hours to study the file, which was insufficient to become fully familiar with all the evidence, consisting of twenty-two volumes of documents ( amounting to more than 6,200 pages ) and twenty-two video cassettes (each containing about two and a half hours of video material ). 36. On 27 May 2004, at one of the preliminary hearings in the Assize Court, which had commenced on 7 May 2004 (see paragraph 44 below), Mr Abbasov lodged an application refusing the services of all three lawyers representing him on the ground that these lawyers had not been able to defend him adequately. He requested leave to defend himself in person but, according to the Government, subsequently asked for a new lawyer. On 4 June 2004 the Assize Court accepted the application and decided that the applicant should be provided with a new State-appointed lawyer. The lawyer, Mr S. Panahov, was appointed at some date around 8 June 2004. During the trial, another lawyer, Mr E. Guliyev, was retained by the applicant. (c) The third applicant 37. Following his arrest on 24 October 2003, the third applicant, Mr Hajili, was not allowed access to a lawyer until 27 October 2003. From this date on, it appears that he was represented by a number of lawyers throughout the proceedings. 38. Following the completion of the pre-trial investigation on 1 March 2004, the applicant and several of his lawyers ( Mr M. Shahmarov, Mr N. Safarov, Mr M. Hadi and Mr O. Kazimov) were given access to the prosecution ’ s case file. On 6 April the applicant, and on 15, 16 and 17 April 2004 each of the lawyers, signed a separate record on familiarisation with the material in the case file. (d) The fourth applicant 39. Mr V. Khasayev was appointed as Mr Mammadov ’ s lawyer on 18 October 2003. 40. On 21 October 2003 Mr Khasayev complained to the Prosecutor General ’ s Office, by telegram, that he had not been allowed to meet the applicant. Eventually, he was able to meet the applicant for the first time on 22 October 2003. 41. There is no information in the case file as to whether Mr Khasayev or the applicant were given access to the prosecution ’ s case file following the completion of the pre-trial investigation. C. Trial 42. As noted above, more than one hundred persons were prosecuted, in the framework of criminal case no. 80308, for their involvement in the events of 15 and 16 October 2003. Subsequently, this case was split, dividing the accused persons into fifteen separate groups (one of which groups comprised the newly severed criminal case no. 80365 concerning the applicants), and each group was tried separately. The first fourteen trials concerned the cases of those who were accused of participating in mass disorder and use of violence against officials. All those trials were conducted by either the Assize Court or the Sabail District Court and were completed in March and April 2004. All the defendants in those trials were found guilty and were sentenced to either imprisonment, suspended periods of imprisonment or restriction of liberty. 43. The fifteenth and last trial in criminal case no. 80365 concerned the persons who were accused of organising the mass disorder, including the four applicants in the present case. This trial took place after the first fourteen trials. 44. The trial was conducted by the Assize Court. It commenced with several preliminary hearings, the first of which took place on 7 May 2004. The three-judge panel hearing the case was composed of Judges M. Ibayev (presiding), S. Aleskerov and J. Jumaliyev. 1. Applications by the defence during the preliminary hearings and trial hearings 45. During a preliminary hearing on 12 May 2004, the applicants ’ lawyers complained to the Assize Court about an alleged danger to their personal safety, notifying the court about an incident which had taken place after the preliminary hearing of 7 May 2004. According to the lawyers, six of them had been harassed and assaulted by a number of police officers outside the courthouse when they were giving an interview to a television journalist. To support this allegation, two of the lawyers produced some items of clothing damaged during the altercation and photographs depicting the incident. They characterised the alleged incident as a form of undue pressure put on them by the authorities and asked the court to take measures to ensure their personal safety. The presiding judge replied that the court could not be concerned with any incidents taking place outside its courtroom and that the lawyers should use the relevant avenues of redress if they wished to complain about any alleged harassment outside the court hearings. The court nevertheless decided to notify “the relevant authorities” about the lawyers ’ allegation. However, from the material available in the case file, it is unclear which specific steps were taken by the court in this regard. 46. Furthermore, the first applicant, Mr Huseyn, lodged an application objecting to the participation in the trial of one of the Assize Court ’ s judges, Judge Ibayev, noting that the judge ’ s son worked at the Prosecutor General ’ s Office and was subordinate to the head of the investigation team dealing with his case. The other defendants joined the application. On 24 June 2004 the Assize Court rejected the application, finding that, although Judge Ibayev ’ s son indeed worked at the Prosecutor General ’ s Office, he had never been personally involved in the applicants ’ case. 47. Subsequently, the first applicant, joined by other defendants, also objected to the participation in the trial of Judge Aleskerov. They pointed out that Judge Aleskerov was the brother of Mr N. Aleskerov, an investigator from the Prosecutor General ’ s Office who, during the period from 19 October 2003 to 26 January 2004, had been a member of the investigation team dealing with the applicants ’ case. The first applicant argued that, owing to Judge Aleskerov ’ s brother ’ s direct involvement in the case, he would not be able to hear the case as an impartial judge. On 28 June 2004 the Assize Court rejected that application, noting that Mr N. Aleskerov had indeed been one of the forty-three members of the investigation team working on criminal case no. 80308. However, he had been removed from the team on 26 January 2004. Subsequently, after the new case no. 80365 (concerning the applicants) had been severed from case no. 80308, Mr N. Aleskerov had not been included in the investigation team dealing with this new case. For these reasons, the Assize Court concluded that claims concerning the lack of impartiality of Judge Aleskerov could not be objectively justified. 48. Throughout the trial in the Assize Court, the applicants lodged a number of other applications. According to them, the court ’ s interim decisions rejecting those applications were either not given to them or were made available to them only after significant delays. Moreover, the applicants requested permission to verify the transcripts of court hearings after each hearing in order to be able to comment on alleged irregularities and “falsifications” contained in them. However, they were given access to the transcripts only at the very end of the trial. 2. Evidence examined during the trial 49. During the course of the trial, the Assize Court examined large volumes of testimonial evidence, as well as video recordings and other materials. Below is a brief summary of the evidence heard and the manner in which it was ultimately assessed in the Assize Court ’ s judgment. (a) Witnesses for the prosecution 50. The majority of prosecution witnesses were police officers deployed at Azadliq Square on 16 October 2003. The investigation also produced records of pre-trial questioning of some of the persons who had been convicted at earlier trials in connection with the events of 15 and 16 October 2003, and a number of other civilian witnesses. (i) Evidence concerning the events of 15 and 16 October 2003 in general, which did not directly implicate the applicants 51. It appears that the absolute majority of prosecution witnesses were called to merely provide a general description of the events of 15 and 16 October 2003 in order to establish the fact of public disorder. Their testimonies were aimed at showing that the demonstrators had collected clubs, stones and other objects from the headquarters of the Müsavat Party and other opposition parties, that they had used these objects as weapons against the police and military forces and that they had damaged a variety of public and private property. These witness testimonies did not directly mention the applicants as either organisers of or participants in those violent actions. In addition, the prosecution produced some expert evaluations of various forms of damage to private and public property. (ii) Statements by police officers directly implicating the applicants 52. As to the applicants ’ specific role in the events of 16 October, in order to establish that they had directed and incited the demonstrators ’ violent actions, the prosecution produced pre-trial depositions of several police officers who had specifically described, inter alia, how they had seen the applicants arriving at Azadliq Square on 16 October 2003, publicly proclaiming the election victory of I. Gambar and inciting the demonstrators to violence from the tribune in the square. 53. Prior to the scheduled examination of these witnesses, on 5 August 2004 the first applicant, joined by all the other defendants, complained that the pre-trial depositions of some of those witnesses had been identical word for word and asked for this evidence to be excluded. He pointed out that, according to the relevant records, some of these depositions had been taken by the same investigator at the same time on the same day. He argued that this was either physically impossible or in breach of Article 230 of the Code of Criminal Procedure, which required that witnesses be questioned separately, and that, in either case, this evidence should not be admitted. It is not clear whether the Assize Court ever gave any decision concerning this objection, but it admitted the relevant depositions as evidence. 54. At the trial hearings, each of the police officers concerned testified separately and was cross-examined by the applicants and their lawyers. In particular, police officer V.N. stated, inter alia, that when the public disturbance had started at Azadliq Square, some of the defendants, including the second and third applicants, had been inciting the crowd to violence and making such declarations as “Isa [Gambar] has been elected President, we are now in power, do not be afraid of anyone, soon we will overtake the entire city, resist anyone who confronts you ... ”. 55. From the record of the court hearings, it appears that, during the cross-examination, the defence were able to reveal a number of alleged inconsistencies between the accounts given by V.N. during the hearing and in his pre-trial deposition (concerning such specific details of his testimony as, for example, whether he had actually seen any of the defendants appear on the tribune or not, or whether any of the defendants had actually used any phrases such as “ Beat the police!” ). The defence read out V.N. ’ s pre ‑ trial deposition at the hearing with the aim of pointing out these alleged inconsistencies. Likewise, according to the defence, cross-examination of most of the other witnesses of this type revealed alleged inconsistencies between their statements at the trial and in their pre-trial depositions. As appears from the transcript of the trial hearings, when confronted with these alleged inconsistencies, some of the witnesses stated that their pre-trial statements had not been properly recorded, while others reverted back to their pre-trial statements and retracted any inconsistent statements which they had made during the hearing prior to cross-examination. 56. It appears from the transcript of the court hearings that more than ten witnesses of this type were heard. In its judgment of 22 October 2004 the Assize Court separately summarised the testimonies of six of those witnesses and relied on them as proving the applicants ’ guilt. The judgment addressed neither the objections raised by the applicants as to the admissibility of these witness testimonies, nor any objections concerning the inconsistencies allegedly revealed in their testimonies during cross ‑ examination by the defence. (iii) Statements by previously convicted participants in the demonstration directly implicating the applicants 57. The prosecution also relied on testimony obtained during pre-trial questioning from a number of other persons convicted in connection with the events of 15 and 16 October. These persons had already been convicted at first - instance trials conducted by the Assize Court in March 2005. Inasmuch as this can be discerned from the Assize Court ’ s judgment of 22 October 2004 in the applicants ’ case, the court relied on testimonies of five witnesses of this type. 58. According to the records produced by the prosecution, in the course of questioning as accused persons at the pre-trial investigation stage of criminal case no. 80308, these persons had described, in various degrees of detail, that they had witnessed the applicants at Azadliq Square inciting the demonstrators to violent resistance during the events of 16 October 2003. 59. During the trial hearings, these witnesses were called to be questioned about their pre-trial statements. According to the relevant trial transcripts and the Assize Court ’ s judgment of 22 October 2004, having taken to the witness stand at the oral hearings, four of these witnesses openly retracted their pre-trial statements against the applicants, noting that they had been forced to make those statements under torture, ill-treatment and other forms of duress applied to them during their pre-trial detention. 60. In reply to these allegations, the Assize Court noted that the witnesses ’ complaints of ill-treatment had been addressed at their own respective trials and had been found to be unsubstantiated. The court found that, since these witnesses ’ statements had already been relied on as sound evidence at those trials, the assessment of this evidence was a “ res judicata matter”. In such circumstances, the court decided to accept these witnesses ’ pre-trial statements as good evidence, and refused to attach weight to the fact that the witnesses had subsequently retracted them at their own trials and at the applicants ’ trial. (iv) Statements by other witnesses directly implicating the applicants 61. The prosecution also submitted depositions of several other civilian witnesses who had not been convicted in connection with the events of 16 October 2003. According to the records produced by the prosecution, during the pre-trial investigation these witnesses had made statements similar to those made by the witnesses mentioned above. However, again, during the questioning at the public hearing, at least three of those witnesses retracted their earlier statements and claimed that they had been forced to make them under threat of ill-treatment or by means of actual ill-treatment. 62. According to the trial transcript, witness N.N. noted that he had been detained for a period of several days after the events of 16 October 2003 and, during that time, had been coerced into giving false testimony against the defendants ( mostly against the second applicant ). He noted that he had been threatened with prosecution and imprisonment for participating in the events of 16 October 2003, had been refused any water during his questioning and had otherwise been intimidated with the purpose of making him sign a pre-printed witness statement prepared by an investigator. 63. In order to assess the allegations of ill-treatment made by these witnesses, the Assize Court heard evidence from investigators and police officers who had questioned them. They stated that they had not ill-treated these witnesses during pre-trial questioning. Furthermore, the court noted that the witnesses ’ pre-trial statements were corroborated by other evidence. On that basis, the court found that the allegations of ill-treatment were unfounded and that, therefore, the statements contained in the pre-trial depositions of these witnesses should be accepted and relied on as evidence incriminating the applicants. (b) Witnesses for the defence 64. The Assize Court partially granted the applicants ’ requests to obtain the attendance of witnesses prepared to testify on their behalf. From the judgment, it appears that more than twenty such witnesses testified. Most of these witnesses were the applicants ’ political companions or other persons affiliated with their political parties. 65. In its judgment, the Assize Court summarised all of these persons ’ testimonies noting that all of them denied that the applicants had carried out the specific acts attributed to them, such as planning any violent actions in advance, verbally inciting the crowd to violence or organising the distribution of clubs and stones to demonstrators. It further noted that the witnesses had insisted that, on the contrary, the police had used excessive violence against the demonstrators and that, in their speeches, the applicants had called the demonstrators to refrain from attacking the police and responding to any provocation. 66. The Assize Court then went on to dismiss these testimonies as unreliable, using the following reasoning: “Having examined the testimonies of these witnesses heard at the request of [the defendants], the court established that, as indicated above, these persons were members or employees of the [political] parties headed by the defendants and, as they worked with [the defendants], they were persons subordinate to and associated with [the defendants]. Some of their statements were even contradictory. In particular, while replying to the questions, [N.H.] stated, on the one hand, that the people speaking from the tribune had not been inciting people to violence and, on the other hand, that he had not heard the speeches as he had been standing 70-100 metres away from the tribune and had not been able to even see who had been speaking. [N.Y.] stated that she had been at the square by herself, while [E.P.] stated that [N.Y.] had been there with him. Moreover, the circumstances described by them have been refuted by the above-mentioned comprehensive, reliable and mutually corroborative evidence consisting of testimonies of victims and witnesses, video recordings, material evidence and court judgments in force. Therefore, the court considers that [the defence witnesses ’ ] testimonies are groundless .” (c) Other evidence 67. In addition, a number of videos depicting the events of 16 October 2003 were viewed during the court hearings. 68. The videos submitted by the prosecution were intended to show the allegedly violent actions of the demonstrators. Some of the images seen on the videos contradicted the testimonies of certain prosecution witnesses. Some of the defendants ’ lawyers (for example, Mr Hadi ) claimed that they had seen the video evidence for the first time at the court hearings, as it had not been made available to them by the prosecution before the trial, and that they had therefore been unprepared for the examination of this evidence. 69. It appears that, following an application by the defence, the Assize Court also admitted additional video evidence submitted by the defence, which was intended to demonstrate the allegedly excessive use of force by the police and military while suppressing the demonstration. 70. Assessing the video evidence, the Assize Court noted that the video depicted the violent actions of the demonstrators as well as the distribution to them of bludgeons, stones and other “weapons” in an organised manner. 3. The parties ’ closing addresses 71. On 29 September 2004 the Assize Court announced that the presentation of evidence was complete and that it would proceed to hear the parties ’ oral submissions, inviting the prosecution to make their closing address first. The prosecution asked for an adjournment until 1 October 2004 to prepare their speech. On 1 October the prosecution asked for another adjournment until 11 October 2004. The prosecution delivered their closing address during two hearings on 11 and 12 October 2004. 72. Following the prosecution ’ s speech, on 12 October 2004 the court invited the defendants to deliver their respective closing addresses. However, in response to this invitation, almost all of the applicants ’ lawyers, taking the floor one after the other, refused to take part in the oral submissions and make a closing address for the defence, providing the court with the following explanations for their refusal. 73. The first applicant ’ s lawyer, Mr Hadi, speaking first, noted that, throughout the proceedings, he had not been given adequate time and facilities to prepare his client ’ s defence. He had not been allowed to fully study the investigation file before the trial and had not been given access to some of the prosecution evidence, such as video recordings, in order to be able to adequately plan his defence tactics. He further noted that, during the proceedings, the defence lawyers had come under various forms of pressure and had even been physically assaulted when arriving at one of the preliminary hearings. He claimed that the lawyers had regularly received various threats from unspecified persons aimed at preventing them from adequately defending the applicants. Although the lawyers had repeatedly brought this matter to the Assize Court ’ s attention, and had even specifically complained about the incident involving the physical assault on them, the court had failed to take any action and had ignored the difficulties faced by them. He further argued that, in reality, the outcome of the trial had been predetermined and politically motivated and that the trial itself was being held only as a show, since even before its conclusion the President had publicly declared that the applicants were criminals and would be punished. He stated that, in such circumstances, the lawyers themselves felt vulnerable and frightened. He stated that, for these reasons, he was unable to adequately defend his client and was therefore unable to submit an oral argument. He apologised to his clients, the first applicant and Mr Ibrahimov, and noted that it would be best if the defendants were allowed to prepare and deliver the oral arguments themselves. 74. Mr Panahov, counsel for the first and second applicants, gave a similar explanation. He also noted that he was not able to provide effective assistance to his clients because, inter alia, he had never been given access to the investigation file. He claimed that after the completion of the pre-trial investigation the lawyers had been pressured into signing records on familiarisation with the material in the case file so that the case could be sent for trial quickly. Although he had specifically complained about this during the preliminary hearings, the Assize Court had ignored this matter. Like Mr Hadi, Mr Panahov also noted that the lawyers were concerned for their personal safety, and that this affected their ability to provide adequate assistance to their clients. 75. Other lawyers concurred with everything stated by their colleagues and gave similar explanations for their refusal to give a closing address. 76. Following this, the first applicant spoke to the court, on behalf of himself and the other defendants, asking for permission to make their defence speeches in person. He noted that, following their lawyers ’ refusal to take part in the oral submissions, they were essentially left without any legal assistance. He requested the court to allow them sufficient time to prepare their closing addresses. 77. In response, Judge Ibayev stated that the defendants would be allowed to exercise a right of reply ( replika ). Judge Aleskerov noted that procedural law allowed a defendant to give a closing address in person only if he or she was unrepresented by counsel. Judge Jumaliyev commented that counsel could not shirk their duty to defend their clients. 78. At the next hearing, on 13 October 2004, the first applicant, on behalf of himself and the other defendants, lodged a formal application in writing, requesting the court to allow them to make their defence speeches themselves. 79. The court rejected the application as groundless. It noted that the defence lawyers had provided effective and adequate legal assistance to their clients. It further noted that the lawyers had been given ample opportunity to consult the investigation file but had themselves failed to do so, that it was the lawyers ’ duty to participate in oral arguments, that they could not refuse to assist their clients at this stage of the proceedings, and that they had no good reason for shirking their duties. 80. It appears that only the fourth applicant ’ s lawyers delivered a closing address on behalf of their client, despite the fact that the fourth applicant had joined the first applicant ’ s request for permission to give the closing address in person. 81. The Assize Court then proceeded to invite the parties to exercise their right of reply. The prosecution waived that right. 82. Prior to the defendants ’ speeches in reply, the third applicant asked the court not to place any time-limits on them, taking into account the fact that no closing addresses had been delivered on their behalf during the oral submissions. The presiding judge noted that this would be taken into account. 83. Exercising his right of reply, the first applicant spoke for about two hours. The presiding judge interrupted him three times, reminding him that a reply should be brief (no longer than three to fifteen minutes), and ultimately cut short his speech despite the applicant ’ s protests. 84. Likewise, all the other applicants attempted to deliver long speeches while exercising their right of reply, but were interrupted and ultimately stopped by the presiding judge after about an hour, on the ground that a reply should be brief. 85. Following this, the trial hearings ended after each of the defendants was allowed to speak one more time, in order to make their final plea. 4. Conviction and sentences 86. On 22 October 2004 the Assize Court convicted the applicants of organising public disorder (Articles 32.3 and 220.1 of the Criminal Code) and organising acts of violence against State officials (Articles 32.2 and 315.2 of the Criminal Code). 87. The first and fourth applicants were each sentenced to four years and six months ’ imprisonment. The second and third applicants were each sentenced to five years ’ imprisonment. D. Appeals and pardons 88. In October and November 2004 the applicants appealed to the Court of Appeal against their conviction. In particular, in his appeal, the first applicant complained of, inter alia, breaches of his rights to an impartial tribunal, adequate time and facilities for preparation of his defence, effective representation, equality of arms and presumption of innocence. He also complained of errors by the trial court in the procedure for the admission and assessment of evidence. The second and fourth applicants made similar complaints in their appeals. 89. The third applicant ’ s appeal was shorter than those of the other applicants and was phrased in more general language. Among other things, he complained of the following : “The conviction should be quashed as being illegal, unsubstantiated and unfair and I should be acquitted. In particular: 1. The judicial examination was carried out in breach of my rights as an accused person. 2. The judicial examination was carried out in breach of my lawyer ’ s rights. 3. The judicial examination was carried out in breach of my right to make a closing statement and in breach of my lawyer ’ s right to make a closing statement. 4. The court has not examined all the relevant factual circumstances necessary for the conclusions reached. 5. The factual findings in the judgment have not been proven. ... The grounds for my claims concerning the illegality, lack of substantiation and unfairness of the conviction will be presented by me at the [appeal] hearings.” 90. All of the appeals were drafted by the applicants themselves in their own handwriting. 91. By a decision of 8 November 2004, delivered after a preliminary hearing, the Court of Appeal granted the applicants ’ request to hold a public hearing on the merits of their appeals, but rejected their requests to conduct a fresh “judicial examination” of the case by means of renewed cross ‑ examination of the witnesses and defendants and admission of new evidence. It also decided to provide the applicants with State-appointed lawyers for appeal proceedings, appointing the same lawyers who had represented the applicants at first instance. The extent of the actual assistance provided by these lawyers during the appellate proceedings is not clear. 92. By a judgment of 19 November 2004 the Court of Appeal upheld the Assize Court ’ s judgment. It reiterated the lower court ’ s findings and rejected, in one sentence, the complaints made by the applicants in their appeals as unsubstantiated. 93. The first applicant lodged a cassation appeal against that judgment. The cassation appeal consisted of 206 pages and was drafted by the applicant himself in his own handwriting. The appeal was very detailed in respect of all the alleged defects in the proceedings before the Assize Court and the Court of Appeal. The other applicants also lodged cassation appeals, drafted by themselves in their own handwriting. 94. On 29 March 2005 the Supreme Court upheld the lower courts ’ judgments. 95. In March 2005 all of the applicants were released from serving the remainder of their prison sentences pursuant to a presidential pardon decree. E. Statements by public officials and authorities concerning the applicants made at various times during the proceedings 96. The applicants submitted a number of publications containing statements by high-ranking State officials and public authorities, which allegedly breached their presumption of innocence. Some of those statements are summarised below. 97. On 17 October 2003 the Milli Majlis (Parliament) adopted a resolution “ on Unconstitutional Actions of the Müsavat, Ümid and Azerbaijan Democratic Parties, and Certain Political Opposition Groups”, denouncing the above- mentioned parties and holding them responsible for “unlawful actions” and mass disturbances resulting in loss of life and injuries inflicted on civilians and members of law-enforcement authorities, as well as for damage to public and private property. Among others, the resolution identified Isa Gambar (the leader of Müsavat), Igbal Agazade (one of the defendants tried together with the applicants) and “a group of other members and supporters of the opposition” as organisers of the above disturbances. The resolution was published in official newspapers. 98. On 23 October 2003 the official newspaper Xalq Qəzeti published a report by the State-owned press agency AzerTAG concerning a press conference held by the Ministry of Internal Affairs on 22 October 2003. During this press conference, the Head of the Press Service of the Ministry of Internal Affairs conveyed the Ministry ’ s official position concerning the events of 15 and 16 October 2003 and informed the media that criminal proceedings had been instituted in this connection and that a number of persons had been arrested. Among other things, he stated as follows: “...on 15 and 1 6 October 2003 the destructive opposition, at the direct instigation of the leaders of the Müsavat, Ümid and Azerbaijan Democratic Parties Isa Gambar, Rasul Guliyev, Sardar Jalaloglu [Mammadov], Igbal Agazade and others, began committing pre-planned unlawful actions which resulted in mass disorder.” 99. The same issue of the newspaper contained a declaration by the Head of the Sabail District Police Office, denouncing the opposition. The following was stated: “On 15 and 16 October 2003 certain riotous anarchist and extreme reactionary groups, following direct orders by Isa Gambar, Igbal Agazade and Sardar Jalaloglu [Mammadov], committed terrible criminal acts in Baku. ... ... we are confident that ... the persons who committed crimes ... and oversaw these extreme reactionary acts will bear criminal responsibility and receive deserved punishment. Moreover, we are assured that the Müsavat, Ümid and Azerbaijan Democratic Parties, which organised these criminal actions, will be banned and that the leaders of those political entities (I. Gambar, R. Guliyev, S. Jalaloglu, I. Agazade) will be held criminally liable.” 100. On 25 October 2003 Xalq Qəzeti published a declaration by the Ombudsperson, in which she criticised the opposition and the actions of the demonstrators during the events of 15 and 16 October 2003 and called upon all compatriots to adhere to civil unity and peaceful behaviour. The declaration was silent about the alleged reports of excessive and repressive use of force by the law-enforcement authorities during or in the aftermath of the events of 15 and 16 October 2003. 101. On 27 October 2003 Xalq Qəzeti published an almost full ‑ page ‑ long “Press statement by the Ministry of Internal Affairs and the Prosecutor General ’ s Office of the Republic of Azerbaijan concerning the events that took place in Baku on 15 and 16 October”. The statement began with praise for the law-enforcement authorities ’ success in combating crime in recent years and the Government ’ s progress in building a democratic State governed by the rule of law. It continued with words of disapproval about the “radical opposition”, which did not “want to accept the positive developments and existing realities” and was attempting to “cast a shadow” on the Government ’ s successes and to disrupt stability in the country. It further continued: “The extremist circles of the opposition, having realised in advance that they would lose in the free and fair elections and having become fully assured of this during the voting conducted in a democratic and transparent manner, once again resorted to destructive actions. Leaders of the Müsavat and Ümid Parties Isa Gambar and Igbal Agazade, their supporters, and leaders of the ADP, including Rasul Guliyev, who is under an international search warrant for the crimes committed by him, and Sardar Jalaloglu [Mammadov], as well as other members of that party, have particularly distinguished themselves in this undertaking. It must be noted that, starting from 1 October, for the purpose of participating in the mass disturbances planned by the [above-mentioned] persons, active members of those parties as well as persons predisposed to crime were brought to [Baku], and money was distributed to some of them in exchange [for their participation ]. [The narration continues with a description of the opposition demonstration held on 15 October 2003, where claims of election irregularities and unfairness were first voiced.] The false accusations and lies deliberately disseminated by the above-mentioned party leaders after the election, as well as their call to [demonstrators] to commit illegal actions, provided an impetus for further actions resulting in a grave breach of public order in the capital. ... ” 102. The statement continued with a detailed description of the events of 15 and 16 October and with a flat denial of any allegations of excessive and repressive use of force by the police during the dispersal of the demonstration, as well as any allegations of torture and ill-treatment of arrested persons. It also stated that only a small number of arrested persons, consisting of the main organisers and perpetrators of the illegal actions referred to, had eventually been prosecuted. 103. On 30 October 2003 Xalq Qəzeti published an article by the Deputy Minister of Internal Affairs, entitled “Stability and tranquility in Azerbaijan will be protected, the rule of law will be firmly respected”. Almost the entire article consisted of condemnation and harsh criticism of the political opposition ’ s actions during the events of 15 and 16 October. The author repeatedly used such descriptions as “criminal”, “reactionary”, “destructive”, “radical” and “violent” with reference to the opposition in general, and in particular to the Müsavat Party and its leader I. Gambar. The author expressly stated that the Müsavat Party, its leaders and other opposition forces supporting them had engaged in “actions of criminal character”, had openly declared their intention to capture State power by unlawful means, had distributed bludgeons to their supporters and had ordered them to engage in violent actions and vandalism and to disrupt the stability of the country. Within the above account, the article contained the following statements: “ ... Panah Huseyn[ov] ... threatened bloodshed, and attempted to create a situation of mass psychosis. Not only Panah Huseyn[ov] engaged in such subversive action. While delirious ideas of ‘ ripening a revolutionary situation ’ came from Isa Gambar and Rasul Guliyev, they were conveyed to society by the likes of Sardar Jalaloglu [Mammadov], Igbal Agazade, Ibrahim Ibrahimli, Arif Haji[li], Rauf Arifoglu [Abbasov] and Flora Kerimova. ” 104. On 5 October 2004, before the Assize Court ’ s judgment in the applicants ’ case was delivered, the official newspaper Azərbaycan published a long interview given by the President to Reuters. Among a wide range of other issues discussed during the interview, the President also made the following statement: “The attempt of the opposition to change the election results by means of violence was a criminal act. I stress again that the detained persons who are referred to as the opposition are being tried not for being members of the opposition, but for having committed unlawful acts.” I. PROHIBITION OF THE USE OF EVIDENCE OBTAINED BY TORTURE OR OTHER ILL- TREATMENT ... Allegations of torture and ill-treatment were made in all the Trial Groups except Trial Group 11 and Trial Group 12. In every instance, the judgments state that the allegations were not proved. The only exception was Trial Group 5 in which the judgment does not even refer to the allegations of torture. In addition, statements that were alleged to have been made under duress were expressly relied upon as evidence in Trial Groups 2, 3, 4, 7, 8, 10 and 13 and 15. In general, the response of the courts to the numerous motions by the defence that statements made in temporary detention facilities were obtained by torture or other ill ‑ treatment consisted of ordering medical examinations and calling law enforcement officials as witnesses. ... Witnesses ... The approach of the court in Trial Group 15 to determining whether to admit the evidence of witnesses who alleged that they had been tortured was flawed. On the evidence given to the court by these witnesses, no reasonable tribunal should have come to the conclusion that it was sure, beyond reasonable doubt, that such torture did not take place. The court did not ... carry out any proper investigation into the allegations of torture and placed far too much reliance on the findings of other courts in previous trials. In effect, the court considered itself bound to come to the same conclusions as the other courts, without questioning the reasoning behind those other decisions or examining in detail all the evidence that was available to the other courts when determining the issues and comparing that evidence with the evidence which was available to it in the case of Trial Group 15. J. RIGHT TO A PUBLIC HEARING ... All court hearings in the post-election related cases were, ostensibly, held in public. However, numerous restrictions and impediments interfered with this right. In Trial Group 15, for example, access to the court room was strictly monitored and limited by the court security staff. On numerous occasions during the trial the defendants and their lawyers protested to the court that members of the public were being prevented from entering the court room, despite the obvious availability of seats in the court room. ... Although the trials were held in public, a number of factors contributed detrimentally to public access to the trials: • The public galleries were far too small to accommodate all those who wished to observe the hearings and, in a number of trials, relatives of the defendants could not gain access. Trying defendants together in groups of seven to ten aggravated this problem. • People were generally admitted to the public gallery of the Court for Serious Crimes only after they had provided court officials with a copy of their identification cards and their personal details had been written down by court officials. • The Court for Serious Crimes did not post information about scheduled hearings or otherwise make this information available to the public. As a result, the OSCE had to contact the court by phone in order to obtain information about the date and time of pending hearings. In two instances, court secretaries stated that they were not authorized to provide such information. • In some instances, members of opposition newspapers, including Yeni Musavat and the Baku News were not admitted to the courtroom by court officials. In some cases, journalists were refused entry without grounds and in other cases lack of space in the public gallery was cited as the reason. K. RIGHT TO TRIAL BY AN INDEPENDENT AND IMPARTIAL TRIBUNAL ... In respect of Trial Group 15, two members of the court had not disclosed that they were related to people who were, or had been, involved in the preliminary investigation or prosecution of the offences. Whilst no evidence was adduced to show that the judges were biased as a result of this relationship, it was unsatisfactory that the judges concerned had not disclosed their relationships with others involved in the investigation and prosecution of the offences. The failure to make this disclosure, until it was brought to the attention of the court by the defendants and their lawyers, did not engender confidence as to the impartiality of the judges. ... In respect of Trial Group 15, the judges rarely refused a motion by the prosecutor for an adjournment, when on occasion there seemed no justification for granting one. In particular, the court granted an application made by the prosecution to adjourn the case for ten days, so that he could prepare his closing speech, without calling upon the prosecutor to give reasons for such a long delay. The defendants objected strongly to such a long adjournment, but the court seemed to pay no attention to the concerns of the defendants or to any prejudice that such a long adjournment might cause them. Again, in respect of Trial Group 15, on many occasions the court declined to give rulings in respect of motions made by the defendants or their advocates, ruling instead that it would postpone consideration of such motions until later in the case. Of particular concern was the decision of the judges to postpone consideration of crucial questions such as the number of witnesses that the court would allow to be called at the request of the defence. This left the defendants in a state of uncertainty as to which evidence they would be allowed to present in their defence. Plainly, this may have prejudiced the way in which the defendants were able to present their cases. Moreover, the court did limit the number of witnesses called at the request of the defence ... L. RIGHT TO A FAIR HEARING ... In respect of Trial Group 15, the defendants frequently complained to the court that the fact that they were segregated when taken back to prison at the end of the court hearing, together with the limitation of having only one copy of the court materials among them, made it very difficult for them to prepare their cases, particularly cross-examinations of the witnesses. In the questionnaires completed by the defence lawyers, many complaints were made in relation to the refusal by the court to provide copies of documents and video tape recordings to the defendants and lawyers. The lawyers also complained that they were not given an opportunity of viewing the video tapes together with their clients. Presumption of Innocence ... In the days following the post-election violence, statements were made to the press by the President-elect and by representatives of the Ministry of Interior, Baku Main Police Department, the Office of the General-Prosecutor and the Ministry of National Security, in which unlawful acts were attributed to the leaders and members of the Musavat, ADP and Umid parties. ... Disclosure by prosecution of material information ... In respect of Trial Group 15, on numerous occasions the defence lawyers complained to the court that the prosecution had concealed from the court video tape recordings of the events on 16 October which would have assisted the defence. In particular, it was argued that the prosecution had failed to disclose recordings which would have shown that some of the defendants did not make speeches from the tribune and were not responsible for inciting or inflaming the demonstrators. No proper enquiry was made by the court into this issue. The prosecution was not called upon by the court to provide any evidence to rebut the defence suggestion. The matter should have been investigated thoroughly by the court, and the prosecution should have been required to satisfy the court that full disclosure of all material had been made. ... The right to call and examine witnesses ... In most of the trials observed the judges examined only evidence submitted by the prosecution, including tens of witnesses (mainly soldiers and law enforcement officials) and videotape and photographs of groups of people breaking windows, damaging cars and beating law enforcement officials. At the same time, in breach of the principle of equality of arms and adversarial proceedings, defence lawyers were not given an equal possibility to rebut criminal charges, to bring attention to circumstances releasing the defendant from criminal responsibility or mitigating circumstances. The court dismissed almost all motions of the defence for consideration of additional evidence on behalf of the defendant. ... In respect of Trial Group 15, the court did allow the defence to adduce tape recordings showing that violence had been used by the police and other government forces towards the demonstrators. However, the court severely restricted the number of witnesses called at the request of the defence. The defendants indicated to the court that they wished for as many as 600 witnesses to be called to give evidence to prove, amongst other things, that the defendants had not been responsible for providing articles to be used as weapons by the demonstrators, that the defendants had not addressed the crowd in the Square except to call upon them not to use violence and not to react to provocation by the police, and, more generally, that the defendants had not planned or orchestrated the civil disorder which broke out on the 16 October. In addition, the defendants requested the court to call a number of senior officials from the police and other government agencies, including the Baku Administration and the Ministry of Internal Affairs. The defendants submitted that these witnesses should be examined by the court with a view to showing that it was the police and government authorities who had initiated the violence and who had, in effect, incited the demonstrators to react in the way that they did. The court refused to call these senior officials ... M. RIGHT TO A PUBLIC AND REASONED JUDGMENT ... The right to a reasoned judgment ... In respect of Trial Group 15, OSCE observers assessed that there was not sufficient evidence upon which the court could base a reasoned conclusion that it was certain the defendants organized, orchestrated or were parties to the disorder which took place on the 16 October 2003. The evidence of witnesses who purported to identify the various defendants as being involved in inciting the crowds to violence and other particular acts was so poor and so discredited in the trial that no reasonable tribunal could have relied upon it. More particularly, the evidence of those prosecution witnesses who purportedly saw the defendants participating in the disturbance and carrying out particular acts to incite the crowd was so discredited in the course of cross-examination that it could not possibly be relied upon to found the convictions. In its judgment, the court failed to consider the overwhelming number of previous inconsistent statements that the majority of the prosecution witnesses had made in the course of the investigation. So many of the prosecution witnesses gave evidence which was wholly inconsistent with the accounts that they had previously given, that it became impossible to view the evidence of the witnesses implicating the defendants as credible. Conversely, the court failed to attach sufficient importance to the evidence that was called on behalf of the defendants, dismissing the evidence of many of the defence witnesses on spurious and inadequate grounds. The approach of the court to the evidence of defence witnesses was flawed and demonstrated a biased and prejudiced attitude against them. The evidence presented by defence witnesses was crucial to the defence case and yet, in its judgment, the court dealt with the evidence in a superficial manner and rejected the evidence of all the witnesses without giving any separate or detailed analysis of the grounds for rejecting the evidence of each witness. ... ” 108. Annex 4 of the OSCE Report concerned specific observations relating to Trial Group 15 only. At the beginning, the annex reproduced the allegations of torture and ill-treatment made by the defendants and witnesses during the trial, including the allegations made by the first applicant, Mr Huseyn, during the trial (see paragraph 24 above). The annex then continued with the observers ’ direct observations and remarks concerning the trial itself: “ ... In respect of Trial Group 15, OSCE observers and the independent expert assessed that there was not sufficient evidence upon which the court could base a reasoned conclusion that it was certain the defendants organized, orchestrated or were parties to the disorder which took place on the 16 October 2003. The evidence of witnesses for the prosecution was so poor and so discredited in the trial that no reasonable tribunal could have relied upon it to found the convictions. In its judgment, the court failed to consider the overwhelming number of previous inconsistent statements given by the majority of the prosecution witnesses, making it impossible to view their evidence against the defendants as credible. For example, one of the key questions for the court to determine was whether the defendant Igbal Agazade made a speech from the tribune in Azadlig Square on 16 October. If the court could not be satisfied about the veracity and accuracy of the prosecution evidence on this question, then the case against this defendant was fundamentally flawed and no reasonable tribunal could have convicted him. One of the witnesses relied upon by the prosecution to prove that Igbal Agazade made a speech from the tribune gave evidence to the court that Agazade came to the Square from the port side of the Square in a white car. However, a video recording shown to the court made it clear that defendants Agazade and Panah Huseynov came to the Square in a black Mercedes car and that the car came from the side of the Square where the Intourist Hotel was and not from the port side. The court failed to give this matter any proper consideration and failed to take it into account when assessing the probative value, if any, that should be attached to the evidence of the witness. In all the evidence in the case, no reasonable tribunal could have been satisfied that the defendants Agazade or Huseynov acted in the way suggested by the prosecution. ... Many of the witnesses relied upon by the prosecution made pre-trial statements to investigators which were identically worded, and had identical punctuation and typographical errors. This raises serious concern as a clear indication that the investigators were preparing the statements themselves, rather than recording faithfully the evidence of the witness. Another concern was that according to records of interrogations, investigators seemed to have interrogated more than one witness at the same time on the same date. Accordingly, this meant that either: (1) the records of interrogation were inaccurate or that they had been falsified; or (2) if the records were correct, that witnesses had been interrogated together, in breach of the Criminal Procedure Code. Although no satisfactory explanation was given for this, the court failed to carry out any adequate investigation of this matter and failed to give it any proper consideration when assessing the probative value of the evidence. At the request of the defendants, the court summoned a great number of witnesses, all of whom gave evidence which, if accepted, materially assisted the defendants and cast a real doubt on the prosecution case. In its judgment, however, having summarised the evidence of the defence witnesses in a wholly inadequate manner, the court dismissed their evidence in its entirety by stating as follows: [ a quotation of the text quoted in paragraph 6 6 above follows.] This brief judgment failed to attach sufficient importance to the evidence on behalf of the defendants, dismissing it on spurious and inadequate grounds. The approach of the court to the evidence of defence witnesses was flawed and demonstrated a biased and prejudiced attitude against them. The evidence presented by defence witnesses was crucial to the defence case and yet, in its judgment, the court dealt with the evidence in a superficial manner and rejected the evidence of all the witnesses without giving any separate or detailed analysis of the grounds for rejecting the evidence of each witness. ” 109. Extracts from a number of reports by international bodies and human rights NGOs, describing the violent clashes between demonstrators and law-enforcement authorities during the events of 15 and 16 October 2003, have previously been quoted in the Muradova case ( cited above, § § 71-77). 110. Among other similar reports by international NGOs, the report by Human Rights Watch, entitled Crushing Dissent: Repression, Violence and Azerbaijan ’ s Elections (January 2004 Vol. 16, No. 1(D)), contains lengthy summaries of numerous first-hand accounts by persons arrested in connection with the events of 15 and 16 October 2003 concerning the alleged acts of torture and ill-treatment they had been subjected to while in detention. The relevant statements were made by the alleged victims in interviews personally conducted by Human Rights Watch researchers during the organisation ’ s two missions to Azerbaijan from September to November 2003. | This case concerned the complaint by opposition activists about the unfairness of criminal proceedings brought against them for allegedly inciting demonstrators to violence. |
1,096 | Respect for private life in the employment context | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1954 and lives in Opfikon. 6. The applicant had been employed as a hairdresser since 1993 and she had compulsory accident insurance under the Federal Law on Accident Insurance (see Relevant domestic law below ). On 28 August 1995 she was hit by a motorcycle while crossing the road and fell on her back. She was hospitalised overnight owing to suspected concussion resulting from the impact of her head against the ground. 7. On 2 October 1995 the applicant was examined by a rheumatologist who diagnosed her with a cervical trauma and possible cranial trauma. On 6 December 1995 her family doctor certified that her injuries had resulted in total incapacity for work until the end of the year. 8. On 29 January 1996 the applicant was examined at the Zurich University Hospital. The doctor who examined her predicted that she could make a gradual return to work. Nevertheless, on 12 June 1996 another doctor in the same hospital declared the applicant totally incapable of work. 9. At the request of her insurance company, the applicant ’ s health was assessed by means of orthopaedic, neurological, neuropsychological and psychiatric examinations by the insurance-disability medical examination centre (COMAI) of St. Gallen. On the basis of the assessment carried out by that centre, the applicant was declared fully capable of work with effect from February 1997. 10. By a decision of 23 January 1997 the insurance company informed the applicant that her entitlement to daily allowances would end on 1 April 1997. 11. On 4 February 1997 the applicant submitted an objection to that decision and enclosed a report of a neurologist, who confirmed an almost permanent headache, limited head movement, pain radiation towards the shoulders and arms with sensory disorders as well as sleep disorders. In addition, the specialist suspected that the applicant had suffered whiplash and that she was affected by a neuropsychological dysfunction. 12. In September 1997 the insurance company rejected the applicant ’ s complaint finding no causal link between the accident and her health problems. 13. The applicant appealed to the Social Insurance Court of the Canton of Zurich ( Sozialversicherungsgericht des Kantons Zürich ). 14. In a decision of 24 August 2000, the Social Insurance Court allowed the applicant ’ s appeal. It overturned the insurance company ’ s decision and remitted the case for further clarifications. Taking into account the partial contradictions that existed between the different medical reports, the court considered that the consequences of the accident for the applicant ’ s state of health were not sufficiently established. Moreover, a doubt remained as to whether the applicant had suffered trauma to her neck and spine. The insurance company was thus required to clarify the issue. 15. The insurance company subsequently ordered a multidisciplinary examination, which was conducted by an institute of medical experts in Basel. In their report the experts concluded that the applicant was totally incapacitated in respect of the duties required in her profession. However, the insurance company challenged this report once it found that a doctor who had participated in its preparation had previously carried out a private examination of the applicant in the initial stages of the proceedings. 16. The insurance company therefore ordered another medical report, which was delivered on 11 November 2002. The report observed the existence of a causal link between the accident and the damage to the applicant ’ s health, and was accompanied by a neuropsychological report, which noted a brain dysfunction subsequent to a head injury. 17. Meanwhile, by a decision of 21 March 2002 the competent social security authority ( Sozialversicherungsanstalt ) of the Canton of Zurich granted the applicant a full disability pension with retroactive effect. 18. Subsequently, the applicant asked the insurance company on several occasions to comment on its obligation to grant her insurance benefits. 19. On 5 October 2003 another expert report commissioned by the insurance company was prepared solely on the basis of the previous examinations. The medical expert confirmed the existence of a causal link between the accident and the applicant ’ s health problems, and concluded that the applicant ’ s illness had led to a total incapacity for work. 20. On 14 January 2005 the insurance company issued a decision confirming the termination of the applicant ’ s benefits as of 1 April 1997. The applicant lodged a complaint against that decision. 21. On 11 June 2005, another independent physician concluded, solely on the basis of the previously drafted medical reports, that these medical findings were not sufficiently explicit as regards causality. According to him, the applicant ’ s incapacity for work amounted to not more than 20%. He also strongly criticised the approach and findings of other medical experts. On the basis of this report, on 22 September 2005 the insurance company dismissed the applicant ’ s complaint on the grounds of lack of a causal link between the accident and her medical conditions. 22. The applicant appealed, arguing that most of the medical reports had found a causal link and that the only report denying the existence of such a link was based solely on medical reports by other experts instead of on a direct examination. 23. On 28 December 2005 the Social Insurance Court recognised the existence of a causal link between the accident and the health problems the applicant complained of, and allowed her appeal. The matter was referred to the insurance company for it to decide on the right of the applicant to insurance benefits. 24. Thereafter, the insurance company invited the applicant to undergo a medical evaluation of her functional abilities, which she refused. The applicant was then issued with a formal notice within the meaning of Article 43 ( 3 ) of the Social Security Act inviting her to undergo the said evaluation and warning her about the legal consequences of failing to do so indicated in the said provision (see § 3 8 below). No mention of the possibility of covert monitoring was mentioned. 25. Thereafter, on 3, 10, 16 and 26 October 2006 the applicant was monitored by private investigators, commissioned by the insurance company. The surveillance was performed on four different dates over a period of twenty-three days and lasted several hours each time. The undercover investigators followed the applicant over long distances. Following the surveillance, a detailed monitoring record was prepared. Pursuant to that report, the applicant appears to have become aware of the secret surveillance on the last day of implementation of the measure. 26. In a decision dated 17 November 2006 the insurance company refused the applicant ’ s representative access to the surveillance report. The applicant then lodged a complaint with the supervisory authority, namely the Federal Office of Public Health, objecting to the failure to take a decision on her benefits entitlement. 27. On 14 December 2006 the insurance company sent the private investigators ’ report to the applicant. The report included the surveillance footage and declared that it considered it necessary to conduct a fresh neurological assessment of the applicant. However, the applicant refused to undergo any further examination and asked for a decision on her benefits to be taken. 28. In a decision of 2 March 2007 the insurance company again refused to grant any benefits to the applicant on the basis of the images recorded during the surveillance and her refusal to undergo a neurological examination. 29. The applicant lodged a complaint against that decision, claiming a pension on the basis of a degree of disability of 100% as well as compensation for damage to her physical integrity. She also asked for the surveillance case file to be destroyed. 30. On 12 April 2007 another neurologist appointed by the insurance company, Dr H., released an anonymous expert opinion based on evidence and drafted taking into account all the medical examinations and assessments carried out previously as well as the surveillance images. He found that the applicant ’ s incapacity to work amounted to 10%. Furthermore, he estimated the damage to the applicant ’ s physical integrity at between 5% and 10%. On the basis of the analysis of the surveillance images he concluded that the restriction on her capacity to lead a normal life was minimal. 31. On 14 March 2008 the Federal Office of Public Health gave the insurance company a deadline to decide the applicant ’ s complaint. By a decision of 10 April 2008, the insurance company rejected the applicant ’ s request for destruction of the images and decided to grant her daily allowances and a pension on the basis of a disability degree of 10%. 32. On 6 May 2008 the applicant lodged an appeal with the Social Insurance Court claiming compensation for damage to her physical integrity as well as a disability pension based on 70% disability. In addition, she claimed interest at 5% on arrears on the daily allowances remaining unpaid since the accident. She also asked for the expert opinion on the evidence taking into consideration the material resulting from the surveillance be to be removed from her case file. The applicant complained that the surveillance had been “ reprehensible and inappropriate ” and had constituted an “ attack on her personality ”. 33. On 29 May 2009 the Social Insurance Court found in favour of the applicant. In particular, it ruled that owing to the lack of legal basis for the surveillance the monitoring record was not admissible as evidence. As a result, it denied any probative value of the expert opinion based on the evidence, which had taken into account the illegal surveillance. Moreover, according to the court ’ s previous decision of 28 December 2005, the applicant was not required to undergo any further examinations. Therefore, she was entitled to refuse a medical assessment of her functional abilities. 34. The insurance company lodged an appeal against this decision before the Federal Court, criticising in particular the amount of benefits to be granted to the applicant. 35. In its judgment of 29 March 2010, of which the applicant was notified on 19 April 2010, the Federal Court ruled that, in accordance with its earlier jurisprudence (see below § 4 3 ), the surveillance of the applicant by private investigators had been lawful and the surveillance file was therefore a valid piece of evidence. After evaluating the surveillance file it found that the medical reports contradicted the images and videos showing the applicant walking her dog, driving a car long distances, going shopping, carrying groceries and opening the boot of the car by moving her arms above her head without noticeable restrictions or unusual behaviour. Moreover, it found that there were discrepancies, not only between the results of the surveillance and the medical reports but also between the medical reports which had been drafted before the surveillance. Finally, the examination of the applicant by a neurologist was necessary and admissible because she had previously refused to undergo an assessment of her functional capacities and a neurological examination, which were required in the circumstances. Accordingly, the Federal Court denied the probative value not only of the medical reports attesting to the applicant ’ s complete incapacity to work but also of the reports attesting to her incapacity to work of a lesser degree. Therefore, the insurance company had acted correctly in ordering a reassessment of her ability to work through a critical review of all previous medical reports. Following an analysis of this expert opinion report based on evidence, the Federal Court held that its findings were convincing. It quashed the decision of the Social Insurance Court, except for the considerations relating to the interest on arrears. 36. Subsequently the applicant lodged a request with the Federal Court for interpretation of its decision in the light of the established case ‑ law concerning the probative value of the medical reports. The Federal Court dismissed her request, concluding that she had submitted her application not for the purposes defined in this legal remedy, but rather to argue a violation of Articles 6 and 8 of the Convention. I. Principles The authority shall establish the facts of the case of its own motion and obtain evidence by means of the following: a. official documents; b. information from the parties; c. information or testimony from third parties; d. inspection; e. expert opinions.” 40. The relevant provisions of the Federal Act on Accident Insurance ( Bundesgesetz über die Unfallversicherung; classified compilation 832.20; “ the Accident Insurance Act” ) read as follows: Article 1 a – Insured persons “ 1 All persons employed in Switzerland, including home employees, apprentice trainees, trainees, and volunteers, as well as those working in protected technical schools or workshops, are compulsorily insured pursuant to the provisions of the present Act. ” Article 58 – Categories of insurers “ Accident insurance is managed, by category of insured person, by the Swiss National Accident Insurance Fund (CNA) or by other authorised insurers and by a supplementary fund managed by the latter. ” Article 68 – Categories and enrolment in the registry “ 1. Those outside the competence of the CNA shall be insured against accidents by one of the companies indicated below : a. private insurance companies subject to the Act of 17 December 2004 on insurance monitoring (LSA) ... 2. Insurers wishing to participate in the management of compulsory accident insurance must be entered in a registry kept by the Federal Office of Public Health. This registry is public. ” Article 96 – Processing of personal data “ The authorities in charge of implementing the present Act, or of assessing or monitoring its execution, are allowed to process and require to be processed personal data, including sensitive data and personality profiles, which are necessary in order to perform the tasks that are assigned to them by the present Act, in particular to: a. calculate and collect payments; b. establish rights to benefits, calculate, allocate and coordinate them with those from other types of social insurance ... e. monitor the execution of the present Act ... ” 41. The relevant provision of the Civil Code (classified compilation 210) reads as follows: Article 28 “ 1 Any person whose personality rights are unlawfully infringed may petition the court for protection against all those causing the infringement. 2 An infringement is unlawful unless it is justified by the consent of the person whose rights are infringed or by an overriding private or public interest or by law. ” 42. The relevant provision of the Criminal Code (classified compilation 311.0) reads as follows: Article 179 quater “ Breach of secrecy or privacy through the use of an image-carrying device Any person who observes with a recording device or records with an image-carrying device information from the secret domain of another or information which is not automatically accessible from the private domain of another, any person who makes use of information or makes information known to a third party, which he knows or must assume has been produced as a result of an offence under paragraph 1 above, any person who stores or allows a third party access to a recording that he knows or must assume has been made as the result of an offence under paragraph 1 above, is liable on complaint to a custodial sentence not exceeding three years or to a fine. ” 43. The relevant parts of judgment 8C_807/2008 of the Federal Court dated 15 June 2009 (published as 135 I 169), the leading judgment concerning secret surveillance of an insured person ordered by the insurer, read as follows ( unofficial translation ) : “ 4.2 The respondent is an insurance company, which is registered as an authorised insurer in the Register for the implementation of compulsory accident insurance within the meaning of Article 68 UVG. As such, it is considered a public authority within the meaning of Article 1 § 2 ( e ) VwVG ... To the extent that it can deliver binding decisions to insured persons, and thus exercises sovereign powers, it has to respect not only the procedural guarantees of administrative law, but also general constitutional principles, in particular fundamental rights. ... 4.3 The aim of surveillance of an insured person by private detectives is to collect and confirm facts which materialise in the public domain and may be observed by anyone (for example, walking, climbing stairs, driving, carrying loads or performing sports activities). Even when the surveillance is ordered by an authority, it does not give the person undertaking the surveillance the right to interfere with the privacy of the insured person. Unlike a judicially ordered surveillance – for instance, in the context of the Federal Act of 6 October 2000 on the Surveillance of Post and Telecommunications (BÜPF; SR 780.1) – the protection of the insured person from crime remains intact, since private detectives acting on the strength of an administrative order are not allowed to commit criminal acts. In particular, the person in charge of the surveillance has to keep to the framework set up by Article 179 quater of the Criminal Code. In contrast to a covert investigation pursuant to the Federal Law of 20 June 2003 on the undercover investigation ... it is not the purpose of such surveillance for the investigating person to create links with the person subject to the surveillance so as to penetrate into their environment ... 5.4 Given that, pursuant to Article 43 [of the Social Security Act] it is incumbent on the insurer to make the necessary clarifications, the said provision – at least in conjunction with Article 28 ( 2 ) [of the Social Security Act], which sets out a general obligation on the insured person to provide information – represents a basis for ordering surveillance. It must, however, be examined whether these provisions are sufficiently clear to serve as a legal basis within the meaning of Article 36 § 1 [of the Constitution]. 5.4.2 Regular surveillance of insured persons by private detectives represents in any case a relatively minor interference with the fundamental rights of the individual concerned, in particular if it is limited to the area defined at point 4.3 [above] and thus restricted to the public space ... Part of the literature represents the view that surveillance which is limited to such an extent does not even affect the scope of the fundamental right of privacy ( Ueli Kieser, supra). The core content of Article 13 [of the Constitution] is not affected by the institution of such surveillance. In principle, information obtained from insured persons, their employers and healthcare professionals is sufficient for a reliable assessment of claims for benefits; further investigation by a private detective is indicated only in a vanishingly small percentage of persons registered with accident insurance cases ... Ordering of secret surveillance is thus of an exceptional nature, as it will only take place if the other clarification measures fail to produce a conclusive result. The overall legal basis for the restriction of the fundamental rights of insured persons is thus sufficiently precise ... 5.7 To sum up, it should be concluded that ordering surveillance of insured persons by accident insurers in the context outlined in point 4.3 [above] is permitted; the results of such surveillance can thus in principle be used for assessment of the issues in question ... The probative value of the records and reports of private investigators can, however, only be granted in so far as they indicate activities and actions which the insured person has exercised without being influenced by those engaging in the surveillance ... ” | The applicant had been involved in a road traffic accident, and subsequently requested a disability pension. Following a dispute with her insurer on the amount of disability pension and years of litigation later, her insurer requested that she undergo a fresh medical examination, in order to establish additional evidence about her condition. When she refused, the insurer hired private investigators to conduct secret surveillance of her. The evidence that they obtained was used in subsequent court proceedings, which resulted in a reduction of the applicant’s benefits. She complained that the surveillance had been in breach of her right to respect for private life, and that it should not have been admitted in the proceedings. |
924 | Absence of outside influence | 2. The applicant is an Italian company, which was represented by Mr A. Saccucci, Mr A.G. Lana and Mr M. Desario, lawyers practising in Rome. 3. The Government were represented by their former Co-Agent, Ms M.G. Civinini. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The factual background 5. The applicant is a company which operates in the sector of the construction and management of hydroelectric power plants and the installation of renewable energy plants. 6. On 12 February 1996 the applicant sent a letter to ENEL, informing it that it was about to start the construction of a hydroelectric power plant in Albania. The applicant wanted to assess ENEL’s interest in collecting the electrical energy that would be produced in the plant. ENEL, an acronym which stands for National Entity for Electrical Energy ( Ente nazionale per l’energia elettrica ), had been created as a public entity in 1962 by nationalising several hundred private electrical energy companies. In 1999, with the creation of a number of subsidiaries and 32% of its capital being sold on the stock market, a process of privatisation of the entity began. In 1996 it still had a monopoly in the Italian energy sector. At the time, N.I. was ENEL’s Vice-Chairman and a member of its Board of Directors. 7. ENEL sent a first positive reply on 29 February 1996, by means of a letter signed by two senior managers of the company, C.P. and G.P., declaring that it would be available in principle to examine the energy supply proposal, provided that the activities necessary to ensure the technical feasibility of the project were completed. 8. In June 1996 the applicant received a concession from the Albanian Government to build the hydroelectric plant. The concession was signed by the applicant in May 1997. A preliminary agreement between ENEL and the applicant, containing a commitment by the parties to implement the project, was then signed in March 1999. 9. In 1999, having previously been an internal division within ENEL, ENELPOWER S.p.a. (“ENELPOWER”) was created as a separate corporation, albeit wholly controlled by ENEL and linked to the latter’s Engineering and Construction Division. 10. On 2 February 2000, after almost four years of negotiations with ENEL, the applicant signed a cooperation agreement with ENELPOWER, the newly created entity. The agreement was reached on the basis of the construction of the above-mentioned hydroelectric power plant in Albania. One of the main provisions of the agreement was the applicant’s obligation to sell, to ENEL (the parent entity), the electrical energy which would be produced in the power plant, with a view to its distribution to ENEL’s customers in Italy. 11. In the cooperation agreement the parties undertook, in Article 11, to refer any future disputes to the Arbitration Chamber of the Rome Chamber of Commerce (the “ACR”). 12. On 16 March 2000, both parties agreed to entrust A.A., ENELPOWER’s auditors, with the task of assessing the value of the applicant’s concession. The aim of this assessment was to establish an amount of capital that should then be assigned to a newly created Albanian company, in order to implement the project. A.A. presented its assessment on 19 April 2000. ENELPOWER did not agree with the methods or the outcome of the audit, in addition to expressing its doubts as to the feasibility of the project, and decided not to perform the cooperation agreement. The arbitration proceedings 13. On 23 November 2000 the applicant lodged a request with the ACR to commence arbitration proceedings against ENELPOWER. In particular, the applicant asked the ACR to establish ENELPOWER’s breach of the cooperation agreement and sought the termination of the latter, together with an order for damages, evaluated at 237,500,000,000 Italian lira (ITL) (about 130,000,000 euros (EUR)). At the same time, the applicant appointed Mr G.G. as its arbitrator. 14. ENELPOWER filed its reply on 28 December 2000 and appointed, as its arbitrator, Mr N.I. 15. On 12 February 2011 the ACR sent a letter to the named arbitrators to inform them of their appointment and to invite them to disclose in writing any potential conflict of interest. The acceptance statement given by N.I. did not explicitly refer to the absence of any conflict of interest. 16. On 6 March 2001 the arbitral panel was completed by the appointment, by the parties, of a third arbitrator to act as Chair, namely P.D.L. After the latter’s resignation, A.V. was appointed by the ACR as Chair on 7 November 2001. 17. At the time of the events, N.I. had been representing ENEL as its lawyer in a parallel civil dispute concluded by judgment no. 15029 of 27 November 2001 (R.G. 4386/1999) of the Court of Cassation. The dispute, between ENEL and, inter alia, the Italian national institute for insurance against accidents in the workplace (INAIL), concerned the reimbursement of insurance claims stemming from work-related accidents. 18. On 17 June 2002 the ACR informed the parties’ lawyers that the deadline for the deposit of the award would expire on 15 December 2002. 19. The versions of the facts given by the parties radically differ with regard to the events of 25 November 2002: The Government maintained that, on 25 November 2002, the ACR had dismissed, in a private session in which the arbitrators had participated in person (“ conferenza personale” ), all the applicant’s claims. Pursuant to Article 823 of the Italian Code of Civil Procedure (CCP), the award had been decided by a majority and had been deposited, with the signatures of A.V. and N.I., on 6 December 2002 at 16:34. According to the Government, during the private session the arbitrators had asked the Chair to draft the award and G.G. had expressed his intention not to sign the award. According to the applicant, it was not true that the arbitrators had reached an agreement on a decision at that meeting. The applicant argued that G.G. had never expressly manifested his intention not to sign the award or to consent to the latter being deposited without his dissenting opinion. Moreover, G.G. had not understood that the meeting had been called to adopt the final decision. 20. Meanwhile, on 6 December 2002, the applicant by means of a registered letter with return receipt, faxed in advance at 16:50 to the ACR and to the three arbitrators, had lodged a request for the withdrawal of N.I. In particular, the applicant had alleged that the day before, on 5 December, it had become aware of the fact that the arbitrator appointed by ENELPOWER, N.I., had been member of the Board of Directors, Vice-Chairman and thus legal representative of ENEL, parent entity of ENELPOWER, between 1995 and 1996. Moreover the applicant had also become aware that N.I. had been, and still was, acting as a lawyer for ENEL. The applicant alleged that on 5 December 2002 its legal representative F.B., while talking with third parties of a conference held by ENEL at the Milan Stock Exchange on 8 November 2002, had discovered this information by chance. 21. On the same day the ACR had sent to N.I. and G.G. a cover letter, together with the full text of the award. The letter read: “I herewith send you, on behalf of the Chair of the Arbitral Panel, the text of the arbitral award and I inform you that three original counterparts are at your disposal in the Registry, in order for you to sign them. I remind you that the deadline to formally deposit the award has been fixed at 15 December. I would ask you to let us know should you have any difficulty, in order to arrange a swift and smooth conclusion to the proceedings.” 22. On 12 December 2002, G.G., allegedly unaware that the award had in the meantime been deposited (see paragraph 19 above), had sent his dissenting opinion to the ACR in which he challenged the conduct of the final stages of the arbitration proceedings. He referred to the fact that the principle of collegiality had been breached; he further complained that no collegial discussion had been held, and that a secretary had been present during the meeting of 25 November 2002. This latter circumstance had led him to believe that the meeting had not been called to adopt the decision, but that it was an informal gathering of the panel. According to the applicant, the fact that the minutes of the meeting indicated that the arbitrators had entrusted the Chair with the task of drafting the award proved nothing, as they had been drawn up some time after the meeting. 23. On 13 December 2002 the ACR dismissed the request for the withdrawal of N.I., since the arguments put forward by the applicant had been lodged out of time and the award had already become binding in respect of the parties, pursuant to Article 823 of the CCP. 24. In the meantime, on 10 December 2002, the applicant had deposited a request for the withdrawal of N.I. in the Registry of the Rome District Court, pursuant to Articles 815 and 51 of the CCP. 25. On 20 February 2003 the President of the Rome District Court dismissed the applicant’s request for withdrawal as inadmissible, as it had been lodged out of time. In particular, according to the District Court, the arbitration proceedings had ended on 25 November 2002 (date of the arbitrators’ conference) or, at the latest, at the time of the signing of the arbitral award by two of the arbitrators on 6 December 2002. According to the District Court, any grounds for withdrawal, if discovered after the conclusion of the arbitration proceedings, could only have been raised through extraordinary revocation proceedings. 26. Before the Rome District Court, N.I. spontaneously declared that he had previously represented ENEL as lawyer in two sets of proceedings, for which he had been appointed as lawyer prior to the beginning of the arbitration proceedings. 27. For the same reasons as those mentioned at paragraph 25 above, on 29 April 2003 the President of the Rome District Court dismissed as inadmissible a further request for the withdrawal of N.I. that had been lodged by the applicant on 27 January 2003. As an additional ground for dismissal, the District Court made reference to the fact that, in the environment in which the parties to the dispute were operating, it was quite unlikely that the parties had not been aware, well before 5 December 2002, of the professional activities of N.I. 28. The award was declared enforceable (pursuant to Article 825 of the CCP) on 19 December 2003, by a decision of the Rome District Court. The civil proceedings against the ACR 29. On an unspecified date, the applicant lodged a claim against the ACR for negligence, seeking compensation of EUR 374,482.91. The applicant complained, inter alia, of the fact that the ACR had not requested and obtained the explicit disclosure of any conflict of interest from the arbitrators, in violation of Article 6 of its Rules of Procedure, and that it had erroneously indicated 6 December 2002 as the date of the deposit of the award. 30. On 14 March 2005 the Rome District Court dismissed the applicant’s claims. In particular, it maintained that the arbitral panel had held a private conference on 25 November 2002 and that, on that occasion, the award had not been signed by the dissenting arbitrator. All the requirements of Article 823 of the CCP had been duly complied with. The ACR had therefore correctly indicated 6 December 2002 as the date of deposit and no negligence could be imputed to it. At the same time, the ACR could not be held responsible for the fact that N.I. had not indicated in his statement the absence of any conflict of interest, as the ACR did not have an obligation to require such an explicit negative disclosure. The nullity appeal 31. On 2 December 2003, pursuant to Article 828 of the CCP, the applicant appealed against the arbitral award before the Rome Court of Appeal. In its appeal the applicant requested the courts to ascertain the non-existence or the nullity of the arbitral award of 25 November 2002, and, as a consequence, to refer the proceedings back to the panel for their continuation. The applicant argued that, inter alia, by not having disclosed his incompatibility in the independence declaration provided for by the rules of the ACR, the appointment of N.I. as arbitrator had lacked any lawfulness. It also complained of his lack of impartiality due to his ties to the ENEL group. 32. On 7 April 2009 the Rome Court of Appeal dismissed the applicant’s appeal. It maintained that the award had been adopted at the conferenza personale (see paragraph 19 above) on 25 November 2002; that Article 823 of the CCP had been complied with in the sense that the majority of the arbitrators had signed the award; that the absence of an independence declaration was completely irrelevant and that the alleged lack of impartiality could not, in any case, have affected the validity of the award, as a question relating to an arbitrator’s impartiality could only have been raised in the request for withdrawal, and could never, in any event, lead to the nullity of the award. 33. The applicant appealed against this judgment to the Court of Cassation. The latter, on 15 November 2010, dismissed the applicant’s appeal with final effect. The Court of Cassation, however, radically changed the reason for the dismissal. In fact it deemed admissible the applicant’s complaint as to the nullity of the award stemming from the lack of impartiality of N.I., as it had been lodged, albeit after the deliberation on the award, before it had been signed, thus in the course of the arbitration proceedings (as required by Article 829 § 1(2) of the CCP). At the same time, however, the Court of Cassation stated that the existence of a link between the arbitrator and ENELPOWER, resulting in an “alignment of interests” in a specific outcome of that very dispute (Article 51 § 1(1) of the CCP), had not been demonstrated. The criminal proceedings against A.V., G.G. and N.I. 34. Following the events of 6 December 2002, the legal representative of the applicant lodged a complaint with the ACR against its arbitrator, G.G., who had allegedly blackmailed him on 10 December 2002, warning him to drop the request for withdrawal against N.I. or G.G. would otherwise not oppose the final approval of the award, even though it was in his opinion severely flawed by irregularities. The public prosecution office in Rome, having been informed by the ACR of this complaint, opened a criminal investigation for extortion. 35. Following the criminal investigation and the acquisition of further evidence, the public prosecution indicted N.I. and A.V. The indictment against N.I. contained several charges, ranging from forgery (Article 479 of the Criminal Code) for having, inter alia, failed to disclose his professional relationship with one of the parties, to misfeasance in public office (Article 323 of the Criminal Code) for having intentionally procured an unfair pecuniary benefit to ENELPOWER. 36. Proceedings were discontinued on 13 September 2004 (as to the forgery charges) and 30 September 2005 (as to the misfeasance charges). With particular regard to the offence of misfeasance in public office for having intentionally procured an unfair pecuniary benefit to one of the parties to the arbitration proceedings, the preliminary investigations judge referred to the well-established case-law principle whereby arbitration was private in nature and arbitrators could not be considered public officials, therefore not being liable under the relevant criminal provision. 37. On 30 September 2005 criminal proceedings against G.G. for false declarations to the public prosecutor were also discontinued. | The case concerned the arbitration of a dispute involving a hydroelectric-power agreement for power generation in Albania involving the applicant company and ENELPOWER, a company which had been spun off from ENEL, the former State power company. It related to, in particular, the impartiality of the arbitration panel, as one of its members (N.I.) had been on the board of ENEL and had worked as that company’s lawyer. |
818 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1966 and lives in the Paris area. 10. The applicant has been physically disabled since the age of seven. He was adopted by Mr Bernard Poirrez, a French national, under the terms of a judgment of 28 July 1987 of the Bouaké Court of First Instance. On 11 December 1987 the Bobigny tribunal de grande instance granted authority for the judgment to be executed. 11. In December 1987 the applicant applied for a declaration of French nationality. His application was found inadmissible on the ground that he was over 18 years old when it was submitted. He appealed to the Bobigny tribunal de grande instance, which gave judgment on 15 January 1988 declaring the application inadmissible. That judgment was upheld by the Paris Court of Appeal on 24 June 1993. 12. In the meantime, the Seine-Saint-Denis Occupational Counselling and Rehabilitation Board ( commission technique d'orientation et de reclassement professionnel – “ COTOREP ” ) registered the applicant as 80% disabled and issued him with an invalids'card. In May 1990 he applied to the Family Allowances Office ( caisse d'allocations familiales – “ CAF ” ) for the Paris area for an “ allowance for disabled adults ” ( allocation aux adultes handicapés – “AAH ” ). In support of his application, he stated that he was a French resident of Ivory Coast nationality and the adopted son of a French national residing and working in France. His application was rejected on the ground that, as he was neither a French national nor a national of a country which had entered into a reciprocity agreement with France in respect of the AAH, he did not satisfy the relevant conditions laid down in Article L. 821-1 of the Social Security Code (see paragraph 24 below). 13. On 13 June 1990 the applicant brought his case before the Friendly Settlements Board of the Family Allowances Office. 14. In a decision of 6 September 1990, the Board confirmed the CAF's decision on the ground that the applicant did not satisfy the conditions laid down in Article L. 821-1 of the Social Security Code. The authorities noted that the Ivory Coast, of which the applicant was a national, had not signed a reciprocity agreement with France in respect of the AAH. 15. On 26 February 1991 the applicant lodged an application with the Bobigny Social Security Tribunal for judicial review of the decision rejecting his claim. The applicant and the CAF lodged their pleadings on 26 February and 25 April 1991 respectively. 16. In a judgment of 12 June 1991, the court decided to stay the proceedings pending the referral of a question to the European Court of Justice (ECJ ) for a preliminary ruling. The question was whether the decision not to award the allowance for disabled adults to the applicant, a member of the family (adopted son) of a European Community national resident in the country of which the head of household (the adoptive parent) had the nationality ( in accordance with French legislation ) was compatible with the European provisions contained in the Treaty establishing the European Economic Community ( “the EEC Treaty ” ). In a judgment of 16 December 1992 the ECJ replied to the question with a ruling that the refusal to award the benefit to the applicant was not incompatible with the relevant Articles of the EEC Treaty. It pointed out that the applicant's adoptive father could not claim to be a “migrant worker”, which was the category to which the European provisions in question applied. It based that finding on the fact that the applicant's adoptive father, being French, had always lived and worked in France. The ECJ accordingly concluded that the applicant could not “rely on Community law in support of his application for a social security benefit awarded to migrant workers and members of the family”. In doing so, it did not examine the question whether the refusal to award the applicant the allowance was, in general, compatible with Community law or not. 17. The applicant started receiving the minimum welfare benefit ( revenu minimum d'insertion – “ RMI ” ) on 17 December 1991. 18. On 31 March 1993, on the strength of the reply from the ECJ, the Bobigny Social Security Tribunal rejected the application as ill-founded. The applicant appealed against that decision on 27 July 1993. He applied for legal aid on 23 November 1993. 19. On 14 January 1994 the Legal Aid Office at the Paris tribunal de grande instance rejected the application for legal aid to fund the applicant's appeal on the ground that the request was manifestly ill-founded. On 21 February 1994 the applicant appealed against that decision. In a decision of 5 May 1994 the President of the Legal Aid Office allowed the appeal. 20. In a judgment of 19 June 1995, the Paris Court of Appeal upheld the decision of 31 March 1993. It referred to the provisions of Article L. 821-1 of the Social Security Code in the wording then applicable and to the lack of a reciprocity agreement between France and the country of the applicant's nationality in respect of the allowance. 21. On 2 May 1996 the applicant appealed to the Court of Cassation on points of law. The applicant and the CAF lodged their pleadings on 1 August and 21 October 1996 respectively. On 2 June 1997 a reporting judge was appointed. He filed his report on 10 October 1997. A hearing before the Court of Cassation took place on 27 November 1997. In a judgment of 22 January 1998, the Court of Cassation dismissed the appeal lodged by the applicant and worded as follows: “ With regard to the applicant's ground of appeal that'... Article 26 of the Covenant of New York prohibits any discrimination, including on grounds of national origin; that, in refusing to award Mr Koua Poirrez an allowance for disabled adults on grounds of his nationality, the Court of Appeal disregarded the binding nature of that provision, which it subsequently breached by refusing to apply ...'” 22. The Court of Cassation ruled as follows: “Article 26 of the International Covenant of New York of 19 December 1966, which prohibits any discrimination on grounds of national origin, cannot be construed as forbidding all nationality criteria on which domestic law makes the availability of a right conditional. After reiterating the terms of Article L. 821-1 of the Social Security Code, which restricts the right to an award of the allowance for disabled adults to French nationals and nationals of a country that has signed a reciprocity agreement, the Court of Appeal properly decided that Mr Koua Poirrez, an Ivory Coast national, could not claim that allowance in the absence of a reciprocity agreement between France and the Ivory Coast. ... ” 23. Following the enactment of the Act of 11 May 1998, which lifted the nationality condition for awards of non-contributory allowances, the applicant reapplied for an allowance for disabled adults from 1 June 1998. His application was rejected by the CAF, whereupon he applied to the Social Security Tribunal again. In a judgment of 11 June 1999 that court declared his application ill-founded on the ground that the applicant had not complied with the formal conditions governing the submission of his application for the allowance because he had not submitted to the CAF all the documentary evidence of his financial situation. The applicant appealed. According to information provided by the Government and undisputed by the applicant, the COTOREP re-examined the applicant's claim, at the request of the CAF, and awarded him the allowance for the period from June 1998 to November 2000. It is not apparent from the file whether the applicant continued to receive the benefit after that date. In any event, the applicant has not made any complaint regarding the current period and has not alleged that the allowance has been withdrawn. IX. Social, economic and legal protection 1. Scope and principles 1.1. In order to avoid or at least to alleviate difficult situations, sidelining and discrimination, to guarantee equal opportunity for people with disabilities, and to develop personal autonomy, economic independence and social integration, they should have the right to economic and social security and to a decent living standard by: – a minimum livelihood; – specific allowances; and – a system of social protection. 1.2. If there is a global system of economic and social protection for the population as a whole, people with disabilities should be able to benefit fully from it, and their specific needs must be taken into consideration. In so far as this does not exist, a specific system must be established for continuous provision for people with disabilities. 1.3. Socio-economic protection must be ensured by financial benefits and social services. This protection must be based on a precise assessment of the needs and the situation of people with disabilities which must be periodically reviewed in order to take into account any changes in personal circumstances which had been the reason for such protection. 1.4. Economic protection measures must be considered as one of the elements of the integration process for people with disabilities. 2. Economic and social security 2.1. In addition to social benefits granted to people with disabilities as well as to other people (for example unemployment benefits), the economic and social security system should grant: – special benefits in cash or in kind, for people with disabilities, covering rehabilitation and other special needs, such as medical treatment, vocational training, technical aids, access to and adaptation of housing, transport and communication facilities; – special financial support for families who have a child with a disability; – adequate assistance, for example installation allowances or investment loans for people with disabilities wishing to become self-employed; – a minimum livelihood covering their and their families'basic needs and requirements for people with a degree of disablement which prevents them from working; – benefits for people who need the continuous assistance of another person because of their disablement; – benefits to people who are unable to seek employment because of care provided to a person with a disability; – where financial assistance is given up in order to take up employment, this financial assistance should be protected and guaranteed if employment proves unfeasible; ... ” 28. This recommendation also states that “the exercise of basic legal rights of people with disabilities should be protected, including being free from discrimination ”. C. The European Social Charter 29. The European Committee of Social Rights, in Conclusions concerning Article 12 of the Charter in respect of France (15th report, reference period 1997-1998; Conclusions XV-1, vol. 1, p. 2 62, Council of Europe Publishing, 2000 ), states as follows : “The Committee notes that Act no. 98-349 on entry of foreign nationals into France, their residence in the country and the right of asylum brings the French Social Security Code into line with the Social Charter. The reciprocity requirement for awarding the AAH and the FSV supplementary allowances to foreigners had been found in breach of the Charter by the Committee since supervision cycle VI for the former and XIII-2 for the latter. Since this requirement has been lifted – the only condition now applied is that the beneficiary be lawfully resident in France (new Article L 816-1 of the Social Security Code) – nationals of all Contracting Parties are now on an equal footing with French nationals. The Committee considers that the situation is now in conformity with Article 12 para. 4 of the Charter. ” | The applicant, an Ivory Coast national, who was adopted by a French national, has suffered from a severe physical disability since the age of seven. The French authorities issued him with a card certifying that he was 80% disabled. In 1990 the Family Allowances Office refused to award him a disabled adult’s allowance (D.A.A.) on the ground that he was not a French national and there was no reciprocal agreement between France and the Ivory Coast in respect of this benefit. The applicant unsuccessfully challenged this decision in the French courts. |
280 | (Suspected) terrorists | 2. The applicant was born in 1982 and lives in Alvesta (Sweden). He was represented by Ms I. Rajtáková, a lawyer practising in Košice. 3. The Government were represented by their Agent, Ms M. Pirošíková, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 12 July 2007 the Zavodskoy District Court of Grozny (Chechen Republic) issued an international arrest warrant against the applicant on account of his criminal prosecution for acts of terrorism that he had allegedly committed in 2004 in Grozny as a member of an armed group and in respect of which, if convicted, he faced a sentence of life imprisonment. 6. Between 2010 and 2011 the applicant was the subject of extradition proceedings in Ukraine, but fled to Sweden. 7. On 6 December 2011 he was granted asylum in Sweden on the grounds of his political opinions and granted permanent leave to remain. 8. On 15 January 2015 at 8.45 p.m., when he was on his way to Ukraine, the applicant was apprehended by the Slovak border police as a person appearing on Interpol’s list of wanted persons; he was then taken to the Vyšné Nemecké border police station. The relevant police report cited section 17b(1) of the Police Corps Act (Law no. 171/1993). 9. He was arrested the next day (16 January 2015) at 1 a.m. under Article 504 § 2 of the Code of Criminal Procedure (hereinafter “the CCP”), on the basis of the international arrest warrant that had been issued against him on 12 July 2007. The relevant police report noted that the Košice regional prosecutor (hereinafter “the prosecutor”) had authorised the arrest at 1 a.m. 10. Later the same day the applicant was placed in a police detention cell in Košice; he was assigned a lawyer by the Košice Regional Court (hereinafter “the Regional Court”). At 1 p.m. he was interviewed by the prosecutor and informed of the reasons for his arrest. It was noted on that occasion that Interpol had confirmed that the applicant was still a wanted person (whose arrest and extradition had been requested by Russia), and that the Russian authorities had undertaken to send extradition documents to the Slovak authorities in good time. The applicant denied having committed any crime in Russia, contending that he was being persecuted because of his brother’s activities in Chechnya. In response to his statement that he had been granted asylum in Sweden, the prosecutor indicated that the circumstances leading to the granting of asylum to the applicant were being verified. The applicant’s preliminary detention (application no. 56751/16) 11. On 17 January 2015 the prosecutor lodged an application with the Regional Court for the applicant to be placed in preliminary detention under Article 504 § 3 of the CCP. It stated that, at that stage, the applicant’s refugee status in Sweden, which had been confirmed by Interpol in Stockholm, was not an obstacle to the launching of a preliminary investigation in respect of his possible extradition, given that asylum policy was not standardised throughout the European Union (EU). It was thus necessary, pursuant to the European Convention on Extradition of 1957 and the CCP, to secure the applicant’s presence in Slovakia until it was established whether his extradition to Russia was admissible. 12. On 19 January 2015 the Regional Court heard the applicant, who reiterated that he had been granted asylum in Sweden. Observing that the process of granting asylum was subject to proceedings that differed from extradition proceedings and that preliminary investigations within extradition proceedings (under Article 502 of the CCP) were to be carried out by the prosecutor, the Regional Court considered that it was necessary to secure the applicant’s presence on Slovak territory until the State requesting extradition had submitted a request for that extradition, as provided by Article 505 § 3 of the CCP. Pursuant to Article 505 § 1 of the CCP, it thus decided to allow the prosecutor’s application and to place the applicant in preliminary detention pending the extradition proceedings, with effect from 15 January 2015 at 8.45 p.m. 13. The applicant lodged an interlocutory appeal, which he later completed through a new lawyer of his choice. He mainly asserted that in view of the fact that he had been granted asylum in Sweden, Article 501 (b) of the CCP prohibited his extradition to another country. He also submitted that the authorisation of the prosecutor had been needed for his apprehension on 15 January 2015 and that Russia had not requested (as required under Article 16 of the European Convention on Extradition) that he be placed in preliminary detention. 14. By a letter of 27 January 2015, the prosecutor asked the Swedish authorities to provide more information about the applicant’s status in Sweden. 15. On 9 February 2015 the Fifth Chamber of the Supreme Court dismissed the applicant’s interlocutory appeal. Referring to the arrest warrant and to the documents relating to the applicant’s ongoing criminal prosecution sent via Interpol by the Russian authorities, it considered that the conditions set by the CCP for the preliminary detention had been met. The fact that the applicant had been granted asylum in Sweden (which was to be further investigated by the prosecutor with regard to the exclusion provision of Article 1F of the 1951 Geneva Convention – see paragraph 22 below) did not prevent such detention. It was indeed impossible at that stage to assess whether the extradition would eventually be admissible or not. 16. On 19 February 2015 the applicant lodged a constitutional complaint challenging the Supreme Court’s decision. Citing his right not to be deprived of his liberty without a legal basis, he pointed out that the State that had issued the international arrest warrant in respect of him had not requested that he be placed in preliminary detention, and submitted that his refugee status automatically excluded any extradition. He also asserted that several of his procedural rights, as enshrined in Article 6 §§ 1 and 3 (c) of the Convention, had been violated during the proceedings regarding the imposition of his preliminary detention. 17. After a public hearing held on 26 January 2016, the Constitutional Court issued a judgment on 28 January 2016 (no. II. ÚS 352/2015, served on the applicant’s lawyer on 22 March 2016) in which it held that the applicant’s rights, as guaranteed by Articles 5 and 6 of the Convention, had not been breached. It stated that the initial limitation of the applicant’s liberty had been based on the Police Corps Act and had not required the authorisation of the prosecutor; under Article 504 § 2 of the CCP, only after the authorities had verified that the applicant was still the subject of an international search could he be arrested, with the prior authorisation of the prosecutor. His subsequent placement in preliminary detention had been conditional only on the relevant request being lodged by the prosecutor, pursuant to Article 504 § 3 of the CCP; indeed, Article 16 § 1 of the European Convention on Extradition could not be interpreted to mean that such a request had to be lodged by the State requesting extradition. The Constitutional Court furthermore observed that a translation of the decision on the refugee status granted to the applicant by the Swedish authorities had been submitted by the applicant only after the Supreme Court had decided on the matter, and that the conditions regarding the admissibility of his extradition were subject to a preliminary investigation by the prosecutor, the purpose of which could be challenged without placing the applicant in preliminary detention. The applicant’s detention pending extradition and extradition proceedings (application no. 33762/17) 18. On 20 February 2015, the prosecutor lodged an application for the applicant to be placed in detention pending extradition, pursuant to Article 505 § 5 and Article 506 § 1 of the CCP. He noted that preliminary detention could not last more than forty days, which would elapse on 23 February 2015, and that the aim of that detention had been attained, since a request for the applicant’s extradition (containing the necessary assurances concerning the applicant’s treatment and proceedings in respect of him in the event of his extradition) had been lodged by the Russian Prosecutor General’s Office on 17 February 2015. The prosecutor noted that during the subsequent proceedings the circumstances surrounding the recognition in Sweden of the applicant’s refugee status and the impact of those circumstances on the outcome of the preliminary investigation would be duly examined and that reports would be requested from the Slovak Ministry of Foreign Affairs and the Office of the United Nations High Commissioner for Refugees (UNHCR) regarding the security situation in Russia and whether the above-mentioned assurances were likely to be honoured. 19. On 23 February 2015, the Regional Court allowed the above-mentioned application, pursuant to Article 506 § 1 of the CCP, holding that, while the aim of the preliminary detention had been attained with the service of the extradition request, the aim of the extradition proceedings could not be achieved without placing the applicant in detention pending extradition and thus preventing him from absconding. Noting that the Swedish authorities had not (according to their response to the above-mentioned enquiry lodged by the prosecutor) verified during the asylum proceedings whether the applicant appeared on Interpol’s list of wanted persons, the court indicated that the relevant circumstances and their impact on the preliminary investigation would be duly reviewed. 20. The applicant lodged an interlocutory appeal in which he contended, citing Directive 2011/95/EU, that Slovakia was bound by the decision of the Swedish authorities to grant him asylum. 21. On 10 March 2015, the applicant was heard by the prosecutor and informed of the request for his extradition lodged by Russia; he did not consent to his extradition. 22. On 16 March 2015, the Fifth Chamber of the Supreme Court dismissed the applicant’s interlocutory appeal against the decision of 23 February 2015. It noted that the extradition request (accompanied by the necessary documents) had been submitted by Russia on 17 February 2015, and that the purpose of the preliminary detention had thereby been achieved; however, the applicant’s release at that stage would frustrate the completion of the preliminary investigation and, consequently, the aim of the extradition proceedings. Referring to (i) the exclusion provision of Article 1F (b) of the 1951 Geneva Convention, which specified that the provisions of that convention should not apply to any person in respect of whom there are serious reasons for considering that he has committed a serious non-political crime outside his country of refuge prior to his admission to that country as a refugee, and (ii) a similar exclusion provision set out in Article 12 § 2 (b) of Directive 2011/95/EU, the Supreme Court considered that the latter provision, although disregarded by Sweden when granting asylum to the applicant, precluded the Slovak Republic from accepting and applying refugee status in his case (together “the exclusion provisions”). 23. In May 2015 the applicant lodged a constitutional complaint against the Supreme Court’s decision. Relying on Article 5 § 1 and Article 6 § 1 of the Convention, he asserted that the Slovak authorities were bound by the decision of the Swedish authorities to grant him asylum and that there were no grounds to consider that he had committed the acts listed in Article 12 § 2 (b) of Directive 2011/95/EU. Subsequently, the complaint was admitted for examination under no. II. ÚS 53/2016, and a public hearing was held before the Constitutional Court. 24. On 9 October 2015, the prosecutor asked the Regional Court to allow the applicant’s extradition to Russia. He referred to (i) the fact that the Swedish authorities had not, before granting asylum to the applicant, verified whether the latter’s name appeared in Interpol’s database of wanted persons, (ii) the statement of UNHCR, according to which the protection conferred on the applicant owing to his refugee status was not unconditional and (iii) the assurances made by Russia concerning the applicant’s treatment and proceedings in respect of him in the event of his extradition. 25. A public hearing held before the Regional Court on 26 January 2016 was adjourned with a view to requesting additional information from the Russian authorities as to the existence of further written evidence that might complement the extradition request. It can be seen from the case file that, in response, the Russian Prosecutor General’s Office stated that the above-mentioned extradition request had been based mainly on the fact that the preliminary investigation had led to the issuance of an international search and arrest warrant; the Russian Prosecutor General’s Office added that Russian law did not require, for an international warrant to be issued, firm evidence giving rise to the suspicion of a crime having been committed. 26. On 8 September 2016, the Regional Court decided that the applicant’s extradition to Russia was admissible. It noted that refugees did not automatically enjoy immunity from criminal prosecution, as provided by Article 1F of the 1951 Geneva Convention and in Article 12 § 2 (b) of Directive 2011/95/EU. In the instant case, given that the applicant was suspected of having committed a serious non-political crime, the latter provision prevented Slovakia – as concluded by the Supreme Court in its decision of 16 March 2015 – from applying refugee status in his respect. Moreover, Russia, as a Contracting Party to the Convention, had provided concrete and specified guarantees that the applicant would not be subjected to any treatment that was contrary to Article 3 of the Convention. 27. By a judgment of 13 October 2016, the Constitutional Court dismissed the applicant’s constitutional complaint (no. II. ÚS 53/2016). It observed that a guarantee of non-refoulement was not unconditional, since the relevant exclusion provisions allowed for persons who did not deserve refugee protection to be excluded from such protection, and as such did not constitute an obstacle to the requested State undertaking certain actions in the course of extradition proceedings (including proceedings in respect of detention pending extradition) involving such persons. Consequently, Article 14 § 3 (a) of Directive 2011/95/EU obliged member States to revoke the refugee status of a person if they had established that he or she should have been excluded from being accorded the status of refugee under Article 12. The imposition of detention pending extradition was thus a procedural tool allowing the interests at stake to be weighed proportionally. In the instant case there was no reason not to accept at that stage the Supreme Court’s conclusions; the general courts were nevertheless called on, in the subsequent proceedings, to examine and take into account all the relevant circumstances (including the Court’s case-law in respect of Article 3 of the Convention) before deciding whether to “revoke” the applicant’s refugee status and whether to extradite him to Russia. According to the dissenting opinion of one of the judges, the Constitutional Court should have declared that the applicant’s rights had been violated, given that the decision of the Swedish authorities should have been accepted (if need be, after lodging a request with the Court of Justice of the European Union for a preliminary ruling on the acceptance of the Swedish decision), or that, in any event, the risk that the applicant might be subjected to ill-treatment in the event of his extradition to Russia should have been assessed as required by the Court’s case-law, namely M.G. v. Bulgaria (no. 59297/12, 25 March 2014). 28. After the applicant lodged an interlocutory appeal against the decision of 8 September 2016 (see paragraph 26 above), the Fourth Chamber of the Supreme Court reversed the Regional Court’s decision of 8 September 2016 and decided, on 2 November 2016, that the applicant’s extradition to Russia was inadmissible, mainly under Article 501 (b) of the CCP. It gave as the main reason for that decision the fact that, having been granted asylum in Sweden, the applicant enjoyed refugee protection on the territory of all EU member States, despite the fact that the Swedish authorities had not been aware of the criminal charge facing him in Russia. It also concluded that neither the exclusion clause contained in the 1951 Geneva Convention nor the one contained in Directive 2011/95/EU were applicable in the instant case. It further observed, after reviewing all the relevant circumstances (including the general human rights situation in Russia and the reliability of the assurances offered by Russia), that the applicant’s extradition would in any event not be admissible (i) on humanitarian grounds, (ii) owing to a lack of reliable evidence to support the slightest plausibility of the suspicion against him and (iii) in the light of numerous inaccuracies and contradictions contained in the extradition documents. Lastly, the Supreme Court noted that the action serving as the initial impetus for the applicant’s criminal prosecution had to be regarded as “political” and that his political views (together with his brother’s political activities) could give rise to bias on the part of the requesting State’s authorities, within the meaning of Article 3 §§ 1 and 2 of the European Convention on Extradition. By the same decision the Supreme Court ordered the applicant’s release from detention pending extradition, with immediate effect. 29. On 2 December 2016, the Slovak Minister of Justice decided not to authorise the applicant’s extradition to Russia, pursuant to Article 510 § 1 of the CCP. The applicant’s expulsion 30. Upon the applicant’s release from detention pending extradition on 2 November 2016, the border police initiated proceedings aimed at securing his administrative expulsion to Sweden and decided to place him in administrative detention, pursuant to section 88(1)(a) of Law no. 404/2011. 31. On 4 November 2016 the border police ordered the applicant’s administrative expulsion to Sweden, which took place on 1 December 2016. 32. The applicant challenged this order, upon which the Supreme Court decided, by a judgment of 22 October 2019, to quash the decision on the applicant’s expulsion to Sweden and to send the matter back to the border police. | The applicant, a Russian national of Chechen origin, was granted refugee status in Sweden on grounds of his political opinions. An international arrest warrant had been issued against him on account of alleged acts of terrorism committed in Russia. While travelling, he was apprehended at the Slovak border as a person appearing on Interpol’s list of wanted persons. He was later arrested and held in detention while the Slovak authorities conducted a preliminary investigation into the matter, followed by detention in view of extradition to Russia. The Supreme Court found his extradition to be inadmissible in light of his refugee status. He was released and administratively expelled to Sweden. |
536 | Police brutality | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant, Belmondo Cobzaru, is a Romanian national, born in 1973. He lives in the town of Mangalia ( Constanţa ). 1. Facts as submitted by the applicant 8. On 4 July 1997 at around 7.30 p.m. the applicant and his girlfriend Steluţa M. arrived at the flat which they were sharing and which belonged to Steluţa. The applicant then left the flat for about 20 minutes to get some money, as he and Steluţa were planning to go out that evening. However, when he came back, he found the door locked. He asked his neighbours whether they had seen Steluţa, but was told that nobody had seen her. Fearing that she might have attempted to take her life, as she had already done in the past, the applicant forced open the door of the flat in the presence of his neighbour, Rita G. He found nobody there, so decided to go to the police to enquire about her fate. As he was leaving the apartment block, he met Steluţa's brother-in-law, Crinel M., accompanied by three men armed with knives, who attempted to attack him, but from whom he managed to escape. 9. On 4 July 1997 at around 8 p.m. Crinel M. called the police and lodged a complaint against the applicant. According to the complainant, the applicant had tried to break into Steluţa's flat, but had run away when Crinel M. appeared. The complaint was certified by the police officer Dumitru CA. 10. Dumitru CA sent a police patrol to conduct an on-site investigation into the facts complained of by Crinel M. The report drafted by the police patrol concluded that there were no traces of rummaging or violence in the flat. Rita G., who was present during the investigation, stated that the applicant had broken into the flat in her presence, fearing that Steluţa might have committed suicide. 11. A short time after he escaped from Crinel M., that is, between 8 and 9 p.m., the applicant learned that the police were looking for him and went to the Mangalia City Police Department, accompanied by his cousin Venuşa L. He reported to the police officer on duty, Dumitru CA., that some individuals had attempted to beat him up as he was leaving his flat, and that although he had managed to escape, he was still afraid that Crinel M. might beat him up. After he presented his identity card, he was told to wait. Other policemen were also present. 12. At around 10 p.m. police officers Gheorghe G., Curti D. and Ion M. came back from the on-site investigation they had carried out at Steluţa's flat. Gheorghe G. grabbed the applicant by his hair and pulled him upstairs to an office. Gheorghe G. and Curti D. punched him in the head until his nose started to bleed, and he was thrown to the ground and kicked. A newspaper was placed on the back of his neck and he was hit with a wooden stick. Four plainclothes officers observed the assault, but took no steps to prevent or halt it. The police told the applicant that the fact that his father was the local leader of a Roma association would not help him and forced him to sign a statement according to which he had been beaten up by Crinel M. and other individuals. Then he was told to leave and to come back the next day. The police kept his identity card. 13. The applicant left, but as he was feeling very weak, he stopped and sat in front of the police station. Gheorghe G. came out and told him to go home. Seeing that the applicant was in bad shape, Venuşa invited him back with her and offered him a coffee. The applicant showed her the bumps on his head and the other marks of the blows to his back. 14. Later that evening the applicant was admitted to the emergency ward of Mangalia Hospital with injuries diagnosed as craniocerebral trauma. He was transferred to Constanţa County Hospital where an X-ray was performed. He was informed that a further scan was necessary, but this was never performed. 15. On 7 July 1997 the applicant was discharged from hospital, allegedly at the request of someone whose name the hospital staff could not disclose. 16. On 8 July 1997 the applicant was examined by a forensic medical expert of the Forensic Institute of Constanţa, who noted in his report that the applicant had severe headaches and stomachaches, difficulty in walking, bruises around both eyes, on his fingers, on the back of his right hand, on his chest, on his right thigh and calf, and a haematoma on his head. The report concluded that the injuries had been caused by being hit “with painful and hard objects”. The doctor said that the applicant would need 14-15 days to recover. 17. On 8 July 1997 the applicant lodged a complaint with the head of the Mangalia Police Department against police officers Curti D. and Gheorghe G.. He alleged that after he had managed to escape from Crinel M. and his friends, he had gone home, but as he had found out that the police were looking for him, he had gone to the police station. There, Gheorghe G. and Curti D. had beaten him and made him sign a statement, after which they had told him to go home and come back the next day. The complaint was registered on 9 July 1997 and forwarded to Major P. 18. On 10 or 11 July 1997 Major P. took written statements from the police officers involved in the applicant's questioning: Gheorghe G., Curti D. and Ion M. All police officers denied, in succinct terms, having beaten the applicant. None of them mentioned having seen any bruises on the applicant's face upon his arrival at the police station. The statements were dated 11 July, but Major P. certified them as having been made on 10 July. 19. In a statement certified by Major P. as having been made on 11 July 1997 Dumitru CA., a police officer on duty on 4 July 1997, explained that at 8.15 p.m. he had received a telephone call from Crinel M., who had told him that the applicant had forcibly entered Steluţa M.'s flat and had subsequently fled. The duty officer then sent to the flat a police patrol, composed of three police officers: Gheorghe G., Curti D. and Ion M. In the meantime the applicant arrived at the police station, accompanied by his cousin, Venuşa L. He told Dumitru CA. that he had forcibly entered the flat because he thought his girlfriend was inside. On his way out, on the staircase of the building, a number of individuals had approached him and tried to catch him, but he had run away and come to the police in order to avoid being beaten up by them. The police officer told the applicant and his cousin to wait in the waiting room. Police officer Gheorghe C. was there as well. At around 10 p.m. the police patrol returned from the flat and took the applicant to their office on the first floor for questioning. After approximately half an hour, the applicant was sent home and asked to come back the next morning. Dumitru CA. made no mention of the bruises which the applicant had allegedly had on his face upon arrival at the police station. 20. By a letter dated 10 July 1997 Major P. forwarded the preliminary investigation file to the Military Prosecutor's Office in Constanţa. The case file contained the following documents: ( i ) an undated statement by the applicant according to which, after he had left Steluţa's flat in the evening of 4 July 1997, he had met her relatives, who had beaten him up; (ii) the report dated 4 July 1997, 8.15 p.m. drawn up by police officer Dumitru CA. stating that Crinel M. had complained to the police that the applicant had broken into Steluţa's flat (see paragraph 9 above ); (iii) a statement dated 4 July 1997 by Crinel M. from which it appeared that he had threatened the applicant in the evening of 4 July 1997 and had even thrown a stone at him, which had missed its target, but that he had definitely not beaten him up; (iv) the on-site investigation dated 4 July 1997; (v) a statement dated 4 July 1997 by Rita G., confirming the applicant's allegation, namely that at around 6 p.m., he had broken into Steluţa's flat in her presence, out of concern that she might have committed suicide, and that he had left when he had seen that Steluţa was not there; no mention was made of any physical assault against the applicant; (vi) a police report dated 7 July 1997 issued by Gheorghe G., listing the clothes belonging to Steluţa allegedly torn up by the applicant on 28 June 1997; (vii) a written notification issued on 7 July 1997 by the police requesting that the Forensic Institute examine Steluţa M., who “had been beaten up by Cobzaru Belmondo on 3 July 1997”; (viii) Steluţa's statement dated 9 July 1997 from which it appeared that on 3 July the applicant had beaten her up while she was at his flat, and that on 4 July he had taken her to her flat and told her not to leave; as soon as he had gone, Steluţa had gone onto the roof of the building where she had remained for about two hours; from there she had seen the applicant come back and break into the flat; as he had found nobody, he had gone away. Steluţa further stated that as the applicant was leaving the building, he had met Crinel M., who “had beaten him up, asking him why he had broken into the flat”; no details were given as to the alleged beating; at the end of her statement she mentioned again that the applicant had broken into her flat with a screwdriver he had borrowed from a neighbour, but that when he saw Crinel M., he had run away; (ix) a statement dated 9 July 1997 by Elena, Steluţa's mother, according to which the relationship between the applicant and Steluţa had already deteriorated; on 28 June 1997 the applicant had torn up some clothes belonging to Steluţa and on 4 July 1997, while Steluţa was on the roof of the building, the applicant had broken into the flat but had not stolen anything; (x) the statements dated 10 or 11 July 1997 made by police officers Gheorghe G., Ion M., Curti D. and Dumitru CA. ( see paragraphs 18 and 19 above ). 21. On 17 July 1997 the applicant and his father, president of the Association of Roma in Mangalia, lodged a complaint with the Department for National Minorities and requested an investigation in respect of the police officers who had beaten the applicant. They submitted a medical certificate issued on 8 July 1998, a copy of a newspaper article describing the applicant's allegations of ill-treatment and the statements of Venuşa, who had accompanied the applicant to the police station on 4 July 1997 and who had seen him coming out of the police station in excruciating pain. The complaint was forwarded to the Military Prosecutor's Office in Constanţa on 23 July 1997. 22. On 21 July 1997 the applicant's father lodged a complaint with the Constanţa Military Prosecutor's Office. 23. On 28 July 1997 the applicant lodged a separate criminal complaint with the Bucharest Military Prosecutor's Office. He also claimed pecuniary and non-pecuniary damages. The complaint was registered the same day with the Prosecutor General's Office and forwarded on 14 August 1997 to the Constanţa Military Prosecutor's Office. 24. On 18 August 1997 the military prosecutor charged with the investigation interviewed the police officers and the applicant. Police officers Curti D. and Gheorghe G. maintained their statements made before the Mangalia police, and the applicant maintained his allegations of ill ‑ treatment. He complained, moreover, that he had been forced to sign a statement according to which he had been hit by Crinel Marin and his girlfriend's other relatives. 25. On 18 September 1997 the military prosecutor took a statement from Venuşa L. She stated that on 4 July 1997 she and a friend, Valentina T., had accompanied the applicant to the police station and that about 30 minutes later the applicant had come out and complained to them that he had been beaten by the police with a wooden stick. He had also shown them the bruises on his hand, back and fingers. 26. On 29 September 1997 the General Prosecutor's Office in Bucharest urged the Constanţa military prosecutor in charge of the investigation to complete the investigation and render a final decision by 12 December 1997. 27. On 6 October 1997 the Constanţa military prosecutor went to the Mangalia City Police Department, where he took statements from the following witnesses: ( i ) witnesses Amet F. and Nuri M. stated that they had heard that an altercation had taken place between Crinel M. and the applicant; Amet F. further stated that he had seen Crinel M. chasing the applicant with a stone in his hand; (ii) police officer Dumitru CI., who gave a written statement according to which he was at the police station on 4 July 1997 when the applicant arrived there at around 9.30 p.m., and saw that the applicant had bruises on his face when he entered the police station; he had explained to the duty police officer, Dumitru CA., that he had been hit by someone when breaking into the flat; (iii) Ion M. was interviewed again and stated this time that when the applicant had arrived at the police station, at around 9.30 p.m., he had bruises on his face and declared that he had been hit by someone when breaking into the flat; (iv) police officer Marius I., who had also participated in the on-site investigation at Steluţa's flat on 4 July 1997, stated that the applicant had arrived at the police station after the team of policemen had come back from the on-site investigation and that he had noticed that the applicant had obvious bruises on his face, which had been caused a short time beforehand; (v) Crinel M. confirmed that on 4 July 1997 he had seen the applicant breaking into Steluţa's flat and that after making an unsuccessful attempt to catch the applicant, he had only managed to throw some stones at him, which had missed their target; he further confirmed that some neighbours had witnessed the incident, including Rita G. The prosecutor did not put any questions to the police officers who had submitted written statements. 28. On 12 November 1997 the military prosecutor of Constanţa refused to open a criminal investigation in respect of the applicant's complaints against police officers Gheorghe G. and Curti D., on the ground that the facts had not been established. The prosecutor noted that both the applicant and his father were known as “antisocial elements prone to violence and theft”, in constant conflict with “fellow members of their ethnic group” and that it was in this context that in the evening of 4 July 1997 the applicant had broken into his girlfriend's flat and had destroyed many of her clothes. It further found that, according to various testimonies, including those of the police officers from the Mangalia Police Department, the applicant's girlfriend, her mother and Nuri M., the applicant had been hit by Crinel M. for breaking into Steluţa's flat. The prosecutor found that it was for “obvious reasons” that Crinel M., a “gypsy as well”, had denied having beaten the applicant. The prosecutor considered that the statement given by Venuşa L., from which it appeared that the applicant had come out of the police station with bruises on various parts of his body, could not be taken into consideration since she was also a gypsy – and, moreover, the applicant's cousin – and therefore her testimony was insincere and subjective. 29. By separate decisions of 26 February and 27 July 1998 the public prosecutor of the Mangalia County Court discontinued the proceedings instituted against the applicant by his girlfriend and her brother-in-law for physical assault and material damage. 30. On 4 March 1998 the applicant lodged an appeal against the decision of 12 November 1997 refusing to open a criminal investigation. The appeal was registered on 11 March 1998 by the military section of the Prosecutor General's Office. They sent it to the military prosecutor of the Bucharest Court of Appeal, who, in turn, sent it back to the Constanţa Chief Military Prosecutor. 31. On 4 May 1998 the Constanţa Chief Military Prosecutor dismissed the applicant's appeal on the ground that no evidence had been adduced that the police officers had beaten the applicant, “a 25-year-old gypsy” “well known for causing scandals and always getting into fights”. He found that, on the contrary, the applicant's injuries “might have been caused during the altercation which he had had with fellow members of his ethnic group. As a matter of fact, there were indications that the young man's father, who had been very insistent under the hypothetical title of a leader of an ethnic local association, had tried to use the complaint against the policemen to extinguish the other conflict”. 32. On 23 September 1998 the applicant lodged an appeal with the military section of the Prosecutor General's Office. 33. On 18 November 1998 the Chief Prosecutor of the military section of the Prosecutor General's Office informed him that his appeal had been dismissed and that the decision was final. 2. Facts as submitted by the Government 34. The Government submitted that the applicant had been beaten up by Crinel M. and that these facts had been confirmed by some of the witnesses heard during the investigation, in particular by the applicant's girlfriend, who had seen the applicant being beaten up by Crinel M. from the roof of the building, and by three police officers, who had noted very recent marks of violence on the applicant's face when he arrived at the police station. The Government pointed out in this connection that the applicant's allegation that he had bruises on his face had been contradicted by the medical forensic examination, which did not reveal any such marks. 35. The Government also denied that Major P. had pre-dated the statements given to him on 10 July by the police officers questioned, and contended that the date of 11 July 1997 which the police officers wrote in their statements was obviously a mistake. | The applicant alleged that he had been ill-treated by the police when he had gone to the local police station following an incident at his girlfriend’s flat. He also complained that that ill-treatment and the refusal by the authorities to carry out a prompt, impartial and effective investigation into his allegations were due to his Roma origin. |
910 | Cases concerning the war in Bosnia and Herzegovina | I. THE CIRCUMSTANCES OF THE CASE A. Relevant background 8. Following its declaration of independence from the former SFRY in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of “ethnic cleansing” or generalised violence. Numerous crimes were committed during the war, including those committed by the present applicants. The following local forces were the main parties to the conflict: the ARBH [1] (mostly made up of Bosniacs [2] and loyal to the central authorities in Sarajevo), the HVO [3] (mostly made up of Croats) and the VRS [4] (mostly made up of Serbs). The conflict ended in December 1995 when the General Framework Agreement for Peace (“the Dayton Agreement”) entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. 9. In response to atrocities then taking place in the territory of the former SFRY, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) as an interim institution [5]. In 2002, in order to ensure that its mission was concluded successfully, in a timely way and in coordination with domestic legal systems in the former Yugoslavia, the ICTY began devising a completion strategy [6]. That strategy was endorsed by the UN Security Council [7] and the authorities of Bosnia and Herzegovina (they enacted the necessary statutory amendments and concluded agreements with the High Representative – an international administrator appointed under the Dayton Agreement). A vital component of the strategy was the setting up of war crimes chambers within the State Court consisting of international and national judges (see paragraphs 34-36 below). B. The facts concerning Mr Maktouf 10. Mr Maktouf was born in 1959 and lives in Malaysia. 11. On 19 October 1993 he deliberately assisted a third party to abduct two civilians in order to exchange them for members of the ARBH forces who had been captured by the HVO forces. The civilians were freed several days later. 12. On 11 June 2004 the applicant was arrested. 13. On 1 July 2005 a Trial Chamber of the State Court found him guilty of aiding and abetting the taking of hostages as a war crime and sentenced him to five years’ imprisonment under Article 173 § 1 in conjunction with Article 31 of the 2003 Criminal Code. 14. On 24 November 2005 an Appeals Chamber of that court quashed the judgment of 1 July 2005 and scheduled a fresh hearing. On 4 April 2006 the Appeals Chamber, composed of two international judges (Judge Pietro Spera and Judge Finn Lynghjem) and one national judge (Judge Hilmo Vučinić), convicted the applicant of the same offence and imposed the same sentence under the 2003 Criminal Code. As regards the sentence, it held as follows (the translation has been provided by the State Court): “Considering the degree of criminal responsibility of the accused and consequences of the criminal offence, as well as the fact that the accused was an accessory to the commission of the criminal offence, and considering the mitigating circumstances in favour of the accused, the Chamber applied the provisions on reduction of punishment and reduced the sentence to the maximum extent possible, applying the provision of Article 50 § 1 (a) of the [2003 Criminal Code], sentencing him to imprisonment for a term of five years, being of the opinion that the pronounced sentence can fully achieve the purpose of punishment and that the pronounced sentence will influence the accused not to commit other criminal offences in future.” 15. Following the applicant’s constitutional appeal, on 30 March 2007 the Constitutional Court examined the case under Articles 5, 6, 7 and 14 of the Convention and found no violation of the Convention. The decision was served on the applicant on 23 June 2007. The majority decision reads, in the relevant part, as follows: “42. The Constitutional Court points out that section 65 of the [State Court Act 2000], the initial text of which was imposed in a Decision taken by the High Representative and subsequently endorsed by the Parliamentary Assembly of Bosnia and Herzegovina, provides that during the transitional period, which may not exceed five years, the Panels of Section I for War Crimes and Section II for Organised Crime, Economic Crime and Corruption are to be composed of national and international judges. The Criminal and Appellate Divisions may be composed of several international judges. The international judges may not be citizens of Bosnia and Herzegovina or any other neighboring state. International judges are to act as panel judges in accordance with the relevant provisions of the Criminal Procedure Code of Bosnia and Herzegovina and in accordance with the provisions of the Law on the Protection of Witnesses and Vulnerable Witnesses of Bosnia and Herzegovina and may not be criminally prosecuted, arrested or detained, nor are they liable in civil proceedings for an opinion expressed or decision made in the scope of their official duties. 43. The High Representative ‘... in the exercise of the powers vested in the High Representative by Article V of Annex 10 (Agreement on Civilian Implementation of the Peace Settlement) to the General Framework Agreement for Peace in Bosnia and Herzegovina, ... under which the High Representative shall facilitate, as the High Representative deems necessary, the resolution of any difficulties arising in connection with civilian implementation..., noting that the communiqué of the Steering Board of the Peace Implementation Council issued at Sarajevo on 26 September 2003 stated that the Board took note of the UN Security Council Resolution 1503, which, inter alia, called on the International Community to support the work of the High Representative in setting up the war crimes chamber..., noting the Joint Recommendation for the Appointment of International Judges signed by the Registrar of the Registry ... and President of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina...,, [and] bearing in mind the relevant provisions of the [State Court Act 2000],’ on 24 February and 28 April 2005, took Decisions on the Appointment of International Judges Finn Lynghjem and Pietro Spera to Section I for War Crimes of the Criminal and Appellate Divisions of the [State Court]. 44. Under the aforementioned Decisions on Appointment, international judges are to serve for a term of two years and are eligible for reappointment as prescribed by law. International judges may not discharge duties which are incompatible with their judicial service. All other requirements concerning the judicial duty referred to in the [State Court Act 2000] apply to these appointments to the greatest extent possible. The international Registrar of the Registry shall inform the High Representative of any event which may prevent the judge from discharging his/her duties. During the mandate, the judge is to comply with all standards relating to professional conduct as prescribed by the [State Court]. The appointed international judge is to discharge his/her duties in accordance with the laws of Bosnia and Herzegovina and take decisions on the basis of his/her knowledge [and] skills and in a conscientious, responsible and impartial manner, strengthening the rule of law and protecting individual human rights and freedoms as guaranteed by the Constitution of Bosnia and Herzegovina and the European Convention. ... 46. The competences of the Divisions of the [State Court] to which international judges are appointed include, beyond any doubt, certain matters derived from international law. The acknowledgment of the supranational nature of international criminal law, established through the case-law of the Nuremberg and Tokyo Military Tribunals, the Tribunal in The Hague and the Tribunal for Rwanda, also includes international criminal tribunals. This certainly includes the situation in which a certain number of international judges are appointed to national courts. The High Representative appointed international judges to the [State Court] in accordance with the powers vested in him according to the UN Security Council’s resolutions, adopted in accordance with Chapter VII of the UN Charter and the Recommendation of the Registry pursuant to the Agreement of 1 December 2004, which was also signed by the President of the High Judicial and Prosecutorial Council; it is particularly important that the High Judicial and Prosecutorial Council, an independent body competent to appoint national judges, was involved in the procedure preceding the appointment. 47. The Constitutional Court holds that the international judges who were members of the Panel which rendered the contested verdict were appointed in a manner and in accordance with a procedure which complied with the standards concerning a fair trial provided for in Article 6 of the European Convention. In addition, the [State Court Act 2000], the Agreement of 1 December 2004 and the decisions on [their] appointment created the prerequisites and mechanisms which secure the independence of [the] judges from interference or influence by the executive authority or international authorities. Judges appointed in this manner are obliged to respect and apply all the rules which generally apply in national criminal proceedings and which comply with international standards. Their term of office is defined and their activities are monitored during this period. The reasoning behind their appointment was the need to establish and strengthen national courts in the transitional period and to support the efforts of these courts in establishing responsibility for serious violations of human rights and ethnically motivated crimes. It is therefore aimed at securing the independence and impartiality of the judiciary and administering justice. Even the fact that the manner of appointment was changed by the subsequent Agreement of 26 September 2006, so that the High Judicial and Prosecutorial Council of Bosnia and Herzegovina has become responsible for the appointment of international judges, does not in itself automatically imply that their original appointments, in the manner provided for at the time of the contested verdicts, were contrary to the principles of independence of the court in terms of Article 6 § 1 of the European Convention. The Constitutional Court holds that the appellant failed to submit convincing arguments and evidence in support of the allegations relating to a lack of independence on the part of the international judges. As to the appellant’s allegations concerning the lack of independence of the national judge, on the ground that he is a person with ‘insufficient experience’, the Constitutional Court finds that these allegations are prima facie ill-founded and do not require any extensive examination. Taking all of the above into account, the Constitutional Court concludes that the appellant’s allegations concerning the lack of independence and related violation of the standards relating to the right to a fair trial under Article II(3)(e) of the Constitution of Bosnia and Herzegovina and Article 6 of the European Convention are unfounded. ... 60. One of the appellant’s key arguments refers to the relationship between the criminal proceedings in issue and Article 7 of the European Convention, namely the fact that, as the appellant stated, he was sentenced under the [2003 Criminal Code] rather than under the [1976 Criminal Code], valid at the time of the offence, which provided for a more lenient sanction. ... 65. In this particular case, the appellant acknowledges that, under the regulations applicable at the material time, the offence for which he was convicted constituted a criminal offence when it was committed. However, he expressly refers to the application of the substantive law in his case and examines primarily the concept of a ‘more lenient punishment’, i.e. ‘more lenient law’. He considers that the [1976 Criminal Code], in force when the criminal offence for which he was convicted was committed, and in respect of which, inter alia, the death penalty was prescribed for the severest forms, was a more lenient law than the [2003 Criminal Code], which prescribes a punishment of long-term imprisonment for the severest forms of the criminal offence in question. ... 69. In this context, the Constitutional Court finds that it is simply not possible to ‘eliminate’ the more severe sanction applicable under both the earlier and later laws, and apply only the other, more lenient, sanctions, with the effect that the most serious crimes would in practice be inadequately punished. However, the Constitutional Court will not provide detailed reasons or analysis of these regulations, but will focus on the exemptions to the obligations arising under Article 7 § 1 of the European Convention, which are regulated, as is generally accepted, by Article 7 § 2. 70. In such a situation, the Constitutional Court notes that Article 7 § 2 of the European Convention refers to ‘the general principles of law recognized by civilised nations’, and Article III (3) (b) of the Constitution of Bosnia and Herzegovina establishes that ‘the general principles of international law shall be an integral part of the law of Bosnia and Herzegovina and the Entities.’ It follows that these principles constitute an integral part of the legal system in Bosnia and Herzegovina, even without the special ratification of Conventions and other documents regulating their application, and thus also include the 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former SFRY. 71. Further, the Constitutional Court draws attention to the fact that the Constitution of Bosnia and Herzegovina is part of an international agreement and, while this fact does not diminish the Constitution’s importance, it clearly indicates the position of international law within the legal system of Bosnia and Herzegovina, so that a number of international conventions, such as the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) and the Additional Protocols I-II (1977), have a status equal to that of constitutional principles and are directly applied in Bosnia and Herzegovina. It should be mentioned that the former SFRY was signatory to the said Conventions, and that Bosnia and Herzegovina, as an internationally recognised subject which declared its independence on 6 March 1992, accepted all of the Conventions ratified by the former SFRY and, thereby, the aforementioned Conventions, which were subsequently included in Annex 4, that is, the Constitution of Bosnia and Herzegovina. 72. The wording of Article 7 § 1 of the European Convention is limited to those cases in which an accused person is found guilty and convicted of a criminal offence. However, Article 7 § 1 of the European Convention neither prohibits the retrospective application of laws nor includes the non bis in idem principle. Further, Article 7 § 1 of the European Convention could not be applied to cases such as those referred to in the United Kingdom’s War Damages Act 1965, which amended with retrospective effect the common-law rule granting compensation for private property in certain wartime circumstances. 73. The Constitutional Court notes that Article 7 § 1 of the European Convention concerns criminal offences ‘under national or international law’. The Constitutional Court also notes, in particular, the interpretation of Article 7 provided in a number of texts dealing with this issue, which are based on the European Court’s position that a conviction resulting from a retrospective application of national law does not constitute a violation of Article 7 of the European Convention where such a conviction is based on an act which was a crime under ‘international law’ when committed. This position is particularly relevant in respect of the present case, and of similar cases, given that the main point of the appeal refers to the application of primarily international law, that is, the Convention on the Prevention and Punishment of the Crime of Genocide (1948) and the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) and the Additional Protocols I ‑ II (1977), rather than to the application of one or another text of criminal law, irrespective of their content or stipulated sanctions. 74. In addition, with regard to the retrospective application of criminal legislation, the Constitutional Court stresses that Article 7 of the European Convention was formulated immediately after World War II with the particular intention of encompassing the general principles of law recognised by civilised nations, where the notion of ‘civilised nations’ was adopted from Article 38 of the Statute of the International Court of Justice (ICJ), the case-law of which is generally recognized as the third formal source of international law. In other words, the Statute of the International Court of Justice is applicable in respect of member states of the ICJ, and the rules established by it are regarded as a source of law, which concern even municipal authorities. Both the Statute of the International Court of Justice and Article 7 of the European Convention exceed the framework of national law, and refer to ‘nations’ in general. Accordingly, the Constitutional Court holds that the standards for their application should be looked for in this context, and not merely within a national framework. 75. The Constitutional Court further notes that the travaux préparatoires refer to the wording in paragraph 2 of Article 7 of the European Convention, which is calculated to ‘make it clear that Article 7 does not have any effect on the laws which were adopted in certain circumstances after World War II and intended for punishment of war crimes, treason and collaboration with the enemy, and it is not aimed at either moral or legal disapproval of such laws’ (see X v. Belgium, no. 268/57, Yearbook 1 (1957); ... compare De Becker v. Belgium no. 214/56), Yearbook 2 (1958)). In fact, the wording of Article 7 of the European Convention is not restrictive and must be construed dynamically so to encompass other acts which imply immoral behaviour that is generally recognized as criminal under national laws. In view of the above, the United Kingdom’s War Crimes Act 1991 confers retrospective jurisdiction on the UK courts in respect of certain grave violations of the law, such as murder, manslaughter or culpable homicide, committed in German-held territory during the Second World War 76. In the Constitutional Court’s opinion, all of the above confirms that war crimes are ‘crimes according to international law’, given the universal jurisdiction to conduct proceedings, so that convictions for such offences would not be inconsistent with Article 7 § 1 of the European Convention under a law which subsequently defined and determined certain acts as criminal and stipulated criminal sanctions, where such acts did not constitute criminal offences under the law that was applicable at the time the criminal offence was committed. On 4 May 2000 the European Court of Human Rights issued a decision in the case of Naletilić v. the Republic of Croatia (no. 51891/99). It follows from that decision that the applicant was charged by the Prosecutor’s Office of the International Criminal Tribunal for the former Yugoslavia with war crimes committed in the territory of Bosnia and Herzegovina, and that he submitted complaints that were identical to those of the appellant in the present case, i.e. he called for the application of ‘more lenient law’. He argued that the Criminal Code of the Republic of Croatia stipulated a more lenient criminal sanction than the Statute of the International Criminal Tribunal for the former Yugoslavia, and called for application of Article 7 of the European Convention. In its decision, the European Court of Human Rights considered the application of Article 7 and emphasised the following: ‘As to the applicant’s contention that he might receive a heavier punishment by the ICTY than he might have received by domestic courts if the latter exercised their jurisdiction to finalise the proceedings against him, the Court notes that, even assuming Article 7 of the Convention to apply to the present case, the specific provision that could be applicable to it would be paragraph 2 rather than paragraph 1 of Article 7 of the Convention. This means that the second sentence of Article 7 paragraph 1 of the Convention invoked by the applicant could not apply. It follows that the application is manifestly ill-founded ... and, therefore, must be rejected ...’ 77. Finally, the Constitutional Court points out that the Nuremberg and Tokyo War Crimes Trials were conducted in 1945 and 1946, after World War II, in respect of crimes that were only subsequently, i.e. by the Geneva Convention, defined as acts amounting to war crimes, crimes against humanity, crimes of genocide, etc. Aggressive war was defined as an ‘international crime’, as confirmed by the International Law Commission in its Yearbook of 1957, Vol. II. Related discussions on the principle of nullum crimen nulla poena sine lege were also held at that time. This is also valid in respect of the 1993 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the former SFRY. 78. It is quite clear that the concept of individual criminal responsibility for acts committed contrary to the Geneva Convention or appropriate national laws is very closely related to that of human rights protection, since human-rights and related conventions concern the right to life, the right to physical and emotional integrity, prohibition of slavery and torture, prohibition of discrimination, etc. In the Constitutional Court’s opinion, it seems that an absence of protection for victims, i.e. inadequate sanctions for perpetrators of crime, is not compatible with the principle of fairness and the rule of law as embodied in Article 7 of the European Convention, paragraph 2 of which allows this exemption from the rule set out in paragraph 1 of the same Article. 79. In view of the above, and having regard to the application of Article 4a of the [2003 Criminal Code] in conjunction with Article 7 § 1 of the European Convention, the Constitutional Court concludes that, in the present case, the application of the [2003 Criminal Code] in the proceedings conducted before the [State Court] does not constitute a violation of Article 7 § 1 of the European Convention.” 16. The relevant part of the dissenting opinion of Judge Mato Tadić, attached to that decision, reads as follows: “Pursuant to Article 41 § 2 of the Rules of the Constitutional Court of Bosnia and Herzegovina ( Official Gazette of Bosnia and Herzegovina No. 60/50), I hereby give my separate dissenting opinion, in which I dissent from the opinion of the majority of the Judges of the Constitutional Court of Bosnia and Herzegovina in the aforesaid decision, for the following reasons: ... It is my opinion that the more lenient law should be applied before the domestic courts, i.e. the law which was in force when the criminal offence was committed. It is not easy to give an answer as to which law is more lenient, and this legal issue is much more complex than it appears. Taking into account around ten criteria that have been developed through theory and practice, one may conclude that in the instant case the prescribed penalty is a key factor which is relevant to the question of which law is the more lenient. Given that the same criminal offence existed (Article 142 of the [1976 Criminal Code]) under the criminal legislation of the former Yugoslavia, which Bosnia and Herzegovina inherited by its 1992 Decree, and which provided for a penalty of five years’ imprisonment or the death penalty, while the new criminal legislation applied in the instant case (Article 173 of the [2003 Criminal Code]) provides for a penalty of ten years’ imprisonment or long-term imprisonment, the basic question is which law is more lenient. At first sight, the [2003 Criminal Code] is more lenient, since it does not provide for the death penalty. However, taking into account that subsequent to the entry into force of the Washington Agreement and the Constitution of the Federation of Bosnia and Herzegovina in 1994, the death penalty was abolished, as was merely confirmed by the Constitution of Bosnia and Herzegovina from 1995, and taking into account the positions of the ordinary courts in Bosnia and Herzegovina, the Entities and the Brčko District (Supreme Court of the Federation of Bosnia and Herzegovina, Supreme Court of the Republika Srpska and Appellate Court of the Brčko District) that the death penalty was not to be pronounced (this position was also taken by the Human Rights Chamber in the case of Damjanović and Herak v. Federation of Bosnia and Herzegovina ), it appears that the 1992 law is more lenient. According to the above-mentioned court positions and the law, the maximum term of imprisonment that can be pronounced for this criminal offence is 20 years. Reference to Article 7 § 2 of the European Convention is irrelevant in the instant case. Article 7 § 2 of the European Convention has the primary task of providing a basis for criminal prosecution for violations of the Geneva Conventions before the international bodies established to deal with such cases, for example the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and to provide a legal basis for cases pending before domestic courts where the domestic legislation failed to prescribe the actions in question as criminal offences. In other words, this is the case where the legislature failed to include all of the elements characterising the said offences as referred to in the Geneva Conventions. This case does not raise that issue. The criminal offence in question existed in the domestic legislation, both when the offence was committed and at the time of trial, and therefore all of the mechanisms of criminal law and safeguarded constitutional rights should be consistently applied, including the rights guaranteed under the European Convention. The Naletelić case is irrelevant here, because it concerned an international prosecutor who accused [the applicant] before an international tribunal which had been established on a special basis and is vested with the powers defined by the Resolution of the United Nations and its Statute; it does not apply national legislation, but rather its own procedures and sanctions/penalties. If it were otherwise, a very small number of accused persons would respond to summons for proceedings before that court. Thus, I am of the opinion that the position of the European Court of Human Rights in the Naletelić case was absolutely correct, but that this position cannot be applied in the instant case. I consider that extensive reference to an international court is absolutely unnecessary, such as reference to its jurisdiction, etc., since the issue here is simply the domestic court conducting a trial in compliance with national legislation, and does not involve a case which was transferred to an international tribunal. For the most part, the Naletelić decision deals with history (Nuremberg, Tokyo) and, generally, an international aspect which is completely unnecessary in the instant case, because our national legislation, as pointed out above, incorporated this criminal offence and, when the offence was committed, the sanction was already prescribed, unlike the Nuremberg case. Moreover, the appellant is not challenging the aforesaid. It is in fact the appellant himself who pointed out that the national legislation had the incriminated acts coded as a criminal offence and sanctioned, and the appellant is only asking that it be applied. He also stated that, on account of the failure to apply Article 142 of the inherited [1976 Criminal Code] instead of the [2003 Criminal Code], there had been a violation of the Constitution and of Article 7 § 1 of the European Convention. Wishing to keep this explanation brief, I will recollect the opinion of Mr Antonio Cassese, the esteemed professor of Florence State University, who was appointed President of the International Criminal Tribunal in The Hague. In a 2003 document entitled ‘Opinion on the Possibility of Retroactive Application of Some Provisions of the New Criminal Code of Bosnia and Herzegovina’, Professor Cassese concluded as follows: ‘Finally, let us deal with the issue whether the [State Court] should apply the more lenient sanction in the event of a crime for which the new criminal code prescribes a graver penalty than that envisaged by the former law. The reply to this question can only be affirmative. This conclusion rests on two legal bases: first, there is a general principle of international law according to which, if a single crime is envisaged in two successive provisions with one imposing a less strict penalty, that penalty should be determined according to the favor libertatis principle; secondly, this principle is explicitly mentioned in Article 7 § 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, wherein it is stated that no heavier penalty shall be imposed than the one that was applicable at the time the criminal offence was committed. Accordingly, the [State Court] should always apply the more lenient penalty whenever there is a difference in length of penalty when the former is compared with the new criminal provision. It is clear that retroactive application of criminal code is related to the penalty only and not to other elements of this Article.’ ... For the aforesaid reasons, I could not agree fully with the opinion of the majority which is presented in this decision.” 17. On 12 June 2009 the applicant completed his sentence and left the country soon afterwards. C. The facts concerning Mr Damjanović 18. Mr Damjanović was born in 1966. He is still serving his sentence in Foča Prison. 19. On 2 June 1992, in the course of the war in Bosnia and Herzegovina, he played a prominent part in the beating of captured Bosniacs in Sarajevo, in an incident which lasted for one to three hours and was performed using rifles, batons, bottles, kicks and punches. The victims were afterwards taken to an internment camp. 20. On 17 October 2005 a Pre-Trial Chamber of the State Court decided to take over this case from the Sarajevo Cantonal Court, where it had been pending for years, in consideration of its sensitivity (the case concerned torture of a large number of victims) and the better facilities available for witness protection at the State Court (a higher risk of witness intimidation at the Entity level). It relied on the criteria set out in paragraph 40 below and Article 449 of the 2003 Code of Criminal Procedure. 21. On 26 April 2006 the applicant was arrested. 22. On 18 June 2007 a Trial Chamber of the State Court convicted him of torture as a war crime and sentenced him to eleven years’ imprisonment for that crime under Article 173 § 1 of the 2003 Criminal Code. An Appeals Chamber of the same court upheld that judgment on 19 November 2007. The second-instance judgment was served on the applicant on 21 December 2007. 23. On 20 February 2008 the applicant lodged a constitutional appeal. It was dismissed as out of time on 15 April 2009. | Both applicants in this case had been convicted by the Court of Bosnia and Herzegovina of war crimes committed against civilians during the 1992-1995 war. They complained in particular that a more stringent criminal law, namely the 2003 Criminal Code of Bosnia and Herzegovina, had been applied to them retroactively than that which had been applicable at the time they committed the offences – in 1992 and 1993 respectively – namely the 1976 Criminal Code of the Socialist Federal Republic of Yugoslavia. |
323 | Obligation on States to protect the victims of trafficking | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants, Bangladeshi migrants living in Greece without a work permit, were recruited on different dates between October 2012 and February 2013 in Athens and other places, to work on the region ’ s biggest strawberry farm, at Manolada, a village of two thousand inhabitants in the regional district of Elis, in the western part of the Peloponnese peninsula. In that area there are a number of production units, of various sizes, specialising in the intensive cultivation of strawberries. Exports account for 70% of the local production, which covers 90 % of the Greek market. Most of the workers are irregular migrants from Pakistan and Bangladesh. Some are employed on the farms permanently and others only on a seasonal basis. 6. The production unit in question was run by T.A. and N.V., the applicants ’ employers. The applicants were among a total of 150 workers divided into three teams, each one headed by a Bangladeshi national who reported to T.A. 7. The workers had been promised a wage of 22 euros (EUR) for seven hours ’ work and three euros for each hour of overtime, with three euros per day deducted for food. They worked in greenhouses every day from 7 a.m. to 7 p.m. picking strawberries under the supervision of armed guards employed by T.A. They lived in makeshift shacks made of cardboard, nylon and bamboo, without toilets or running water. According to them, their employers had warned them that they would only receive their wages if they continued to work for them. 8. On three occasions – in late February 2013, mid- March 2013 and on 15 April 2013 – the workers went on strike demanding payment of their unpaid wages, but without success. On 17 April 2013 the employers recruited other Bangladeshi migrants to work in the fields. Fearing that they would not be paid, between one hundred and one hundred and fifty workers from the 2012-2013 season who worked in the fields started moving towards the two employers, who were on the spot, in order to demand their wages. One of the armed guards then opened fire against the workers, seriously injuring thirty of them, including twenty-one of the applicants (listed under numbers 4, 6, 7, 8, 9, 14, 15, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 33, 38, 39 and 42). The wounded were taken to hospital and were subsequently questioned by police. 9. On 18 and 19 April 2013 the police arrested N.V. and T.A., together with the guard who had fired the shots and another armed overseer. During the preliminary investigation by the local police, a number of other Bangladeshis, including some who had worked with the suspects, were used as interpreters. 10. On 19 April 2013 the Amaliada public prosecutor charged the four suspects with attempted murder and other offences, and also, in response to a request from the prosecutor at the Court of Cassation, with human trafficking under Article 323A of the Criminal Code. The charge of attempted murder was subsequently reclassified as grievous bodily harm. 11. On 22 April 2013 the Amaliada public prosecutor acknowledged that thirty-five workers – including four team-leaders –, who had all been injured during the incident, were victims of human trafficking, thus making them lawful residents under section 12 of Law no. 3064/2002 ( on the repression of human trafficking, crimes against sexual freedom, child pornography, and more generally sexual exploitation). 12. On 8 May 2013 one hundred and twenty other workers, including the twenty-one applicants who had not been injured ( listed under numbers 1, 2, 3, 5, 10, 11, 12, 13, 16, 17, 18, 27, 30, 31, 32, 34, 35, 36, 37, 40 and 41), applied to the Amaliada public prosecutor for charges of human trafficking, attempted murder and assault, in respect of them also, to be brought against the four defendants. They stated that they had been employed on the farm run by T.A. and N.V. in conditions of human trafficking and forced labour and that they were part of the group which had come under fire. Relying on the Additional Protocol to the United Nations Convention against Transnational Organised Crime, known as the “Palermo Protocol”, of December 2000 ( “ to Prevent, Suppress and Punish Trafficking in Persons” ), they asked the public prosecutor to bring charges under Article 323A of the Criminal Code against their employers, accusing them of exploiting them in a work -related context. They further alleged that, on 17 April 2013, they had also been present at the scene of the incident and that they had gone there to demand their unpaid wages, with the result that they were also victims of the offences committed against the other thirty-five complainants. 13. The police questioned each of the above-mentioned twenty-one applicants, who signed a record containing their statements, which had been given under oath and were accompanied by their photos, and they forwarded the statements to the public prosecutor. 14. In decision 26/2014 of 4 August 2014, the Amaliada public prosecutor rejected the application of the one hundred and twenty workers. He emphasised that those workers had been sought in order to give testimony during the preliminary investigation and that only one hundred and two of them had been traced and interviewed (including the twenty-one applicants mentioned in paragraph 12 above ). He noted that it transpired from their statements and other material in the file that their allegations did not correspond to the reality. He explained that if they had really been the victims of the offences complained of, they would have gone to the police immediately on 17 April 2013, like the thirty-five other workers had done, and would not have waited until 8 May 2013. In his view, the claim that the complainants had been afraid and had left their huts was not credible because they had been close to the scene of the incident and, when the police arrived, they could have returned to make their complaints known. He further noted that only four out of the hundred and two complainants interviewed had stated they had been injured and that, unlike the thirty-five workers mentioned above, none of those four workers had gone to hospital. Lastly, he observed that all the complainants had stated that they had made statements to the police after learning that they would receive residence permits as victims of human trafficking. 15. On 28 January 2015 the public prosecutor at Patras Court of Appeal dismissed the appeals of the one hundred and twenty workers against decision no. 26/2014 on the grounds that the material in the case file did not substantiate their allegations and that they had sought to present themselves as victims of human trafficking in order to obtain residence permits (decision no. 3/2015). 16. The accused were committed to stand trial in Patras Assize Court. Only N.V. was charged with committing the offence of human trafficking. The three other defendants, namely T.A. and the two armed overseers, were charged with aiding and abetting that offence. The hearings began on 6 June 2014 and ended on 30 July 2014. The thirty-five workers mentioned above joined the proceedings as civil parties and were represented by their lawyers V. Kerasiotis and M. Karabeïdis, whose fees were paid by the Greek Council for Refugees and the Hellenic League for Human Rights. 17. In his oral submissions the public prosecutor pointed out that the applicants who had been injured in the incident had been living and working in Greece without any permit, at the mercy of networks which exploited human beings and in conditions which enabled them to be characterised as victims of human trafficking. In his view both the material element and the mental element of this offence were made out in the present case. 18. The public prosecutor further emphasised that exploitation in a labour context was part of the notion of exploitation provided for in European and other international law instruments as a means of committing the offence of human trafficking. He indicated that Article 4 of the Convention and Article 22 of the Greek Constitution prohibited forced or compulsory labour. He explained that the notion of exploitation through work included all acts which constituted a breach of employment law, such as the provisions concerning working hours, working conditions and workers ’ insurance. In his view, that form of exploitation also obtained through the performance of work for the benefit of the offender himself. 19. Referring to the facts of the case, the public prosecutor explained that the employer, N.V., had not paid the workers for six months, that he had only paid them a very small sum for food, deducted from their wages, and had promised to pay the rest later. He observed as follows: that the defendants were unscrupulous and imposed themselves by making threats and carrying weapons; the workers laboured in extreme physical conditions, had to work long hours and were constantly humiliated; on 17 April 2013, N.V. had informed the workers that he would not pay them and would kill them, with the help of his co-accused, if they did not carry on working for him; as the workers had not given in to the threats, he had told them to leave and said that he would take on another team in their place and that he would burn down their huts if they refused to leave. He lastly noted that, when he recruited them, N.V. had promised the complainants makeshift shelters and a daily wage of EUR 22 – which in his view was the only solution for the victims to be sure of a means of subsistence – and that N.V. had thus succeeded, at that point, in obtaining their consent in order to be able to exploit them subsequently. 20. The public prosecutor asserted that the incident of 17 April 2013 was illustrative of a situation of over-exploitation and barbaric treatment to which the major landowners in the region had subjected the migrant workers. He took the view that the incident had been a barbaric and armed aggression by Greek employers against the migrants, conjuring up images of a “southern slave-trade” which had no place in Greece. 21. At the hearing, one of the witnesses, an officer from the police station of Amaliada, stated that one or two days before the incident of 17 April 2013 some workers had gone to the police station to complain that their employers had refused to pay them their wages and that one of his colleagues had subsequently had a telephone conversation with N.V. on this subject. 22. In a judgment of 30 July 2014, the Assize Court acquitted the four defendants on the charge of trafficking in human beings, on the ground that the material element of the offence was not made out in the present case. It convicted one of the armed guards and T.A. of grievous bodily harm and unlawful use of firearms, sentencing them to prison for terms of fourteen years and seven months and eight years and seven months, respectively. As regards the overseer who had been responsible for the shots, it took the view that he had not intended to kill those who were attacked in the incident and that he had been trying to make them move away so that the newly recruited workers would not be approached by them. As to N.V., it acquitted him on the ground that it had not been established that he was one of the workers ’ employers (and therefore that he was obliged to pay them their wages) or that he had been involved as an instigator of the armed attack against them. The Assize Court commuted their prison sentences to a financial penalty of 5 euros per day of detention. It also ordered the two convicted men to pay the sum of EUR 1,500 to the thirty-five workers who were recognised as victims (about EUR 43 per person). 23. The Assize Court noted that the workers ’ conditions of employment had provided that they would receive: EUR 22 for seven hours of work and EUR 3 for each additional hour; food, of which the cost would be deducted from their wages; and materials for the construction of electrified huts next to their plantations, at their employers ’ expense, to satisfy their basic accommodation needs – while allowing them the option of living elsewhere in the region. It noted that these conditions had been brought to the knowledge of the workers by their fellow countrymen who were team-leaders. 24. The Assize Court thus observed that the workers had been informed of their conditions of employment and that they had accepted them after finding them satisfactory. As to the amount of the wages, it found that this was the usual amount paid by the other producers in the region and the workers had not been obliged to accept it. In the court ’ s view, the information provided to the workers by their team-leaders and their compatriots working for other employers about the reliable payment of wages constituted a major factor in the choice of T.A. as employer. The Assize Court further noted that, until the end of February 2013, the workers had not made any complaint about their employer, whether concerning his conduct or the payment of wages, and they had only started to complain at the end of February or the beginning of March 2013 about a delay in payment. 25. Moreover, the Assize Court rejected the workers ’ allegations that they had not received any wages and had been subjected to a threatening and intimidating attitude, on the part of the defendants, throughout the duration of their work, on the following grounds: those allegations had been expressed for the first time at the hearing, and not at the stage of the preliminary enquiries or investigation; certain intimidating acts had led the complainants to leave their place of work; and the description of these acts was particularly imprecise and vague. The Assize Court also noted that it transpired from the testimony of the workers that, during their free time, they were able to move freely around the region, do their shopping in shops which operated by agreement with the defendants, play cricket and take part in an association set up by their compatriots. It added that it had not been shown that T.A. had, under false pretences and by means of promises, coerced the workers into agreeing to work for him by taking advantage of their situation of vulnerability, especially as it found that they were not in such a situation. 26. The Assize Court took the view that it had also been shown that the relations between the workers and their employers had been governed by a binding employment relationship and its conditions were not intended to trap the workers or to lead to their domination by the employers. On that point, it explained that the conditions had not led the complainants to live in a state of exclusion from the outside world, without any possibility for them to abandon this relationship and look for another job. It further noted that the workers had been in a position to negotiate their conditions of employment at the time of their recruitment and that their unlawful presence in Greece had not been used by their employers as a means of coercion to force them to continue working. 27. The Assize Court indicated that, for the notion of vulnerability to be constituted, the victim had to be in a state of impoverishment such that his refusal to submit to the offender would appear absurd; in other words the victim had to be in a state of absolute weakness preventing him from protecting himself. It added that the victim would be exploited, as a result of his vulnerability, if he unconditionally submitted himself to the offender and was cut off from the outside world, which in the court ’ s view was not the case here since: (a) the relations between the workers and their employers had been governed by a binding employment relationship, and (b) its conditions were not intended to trap the workers or to lead to their domination by the employers, such that the workers might be cut off from the outside world and find it impossible to withdraw from the employment relationship and find another job. The Assize Court further observed that most of the workers had stated that they would have continued to work for their employers had they been paid their wages. 28. Lastly, as to the workers ’ allegation that they had received death threats from the defendants – an allegation that it did not accept –, the Assize Court took the view that, if that statement had been true the workers would have left their place of work without hesitation. The fact of fearing for their lives would have prevailed over any other consideration (such as: their unpaid wage demands; their need to earn a living, which allegedly could not have been satisfied in view of the objective inability to find another job; and all the other arguments that the workers had put forward to justify the fact that they had continued to work). 29. On 30 July 2014 the convicted defendants appealed against the judgment of the Assize Court. The appeal, which is still pending before that same court, has suspensive effect. 30. On 21 October 2014 the workers ’ lawyers lodged an application with the public prosecutor at the Court of Cassation asking him to appeal against the Assize Court judgment. In their application they submitted that the Assize Court had not adequately examined the charge of human trafficking. They took the view that, in order to determine whether that court had properly applied Article 323A of the Criminal Code, it was necessary to examine whether the accused had taken advantage of any vulnerability of the foreign nationals in order to exploit them. 31. On 27 October 2014 the prosecutor refused to lodge an appeal. He gave reasons for his decision, indicating only that the statutory conditions for an appeal on points of law were not met. As a result of this decision, the part of the 30 July 2014 judgment concerning human trafficking became “irrevocable” ( αμετάκλητη ). IV. REPORTS CONCERNING THE SITUATION IN MANOLADA A. The Ombudsman 48. The Ombudsman of Greece drew up a report dated 22 April 2008 following the publication of several articles in the print and electronic media reporting on numerous cases of large-scale exploitation of foreigners in the district of Ilia. In his report, addressed to several government departments and agencies, and to the public prosecutor ’ s office, he commented on the situation in Manolada and made recommendations for improvement. 49. The Ombudsman reported that hundreds of economic migrants lived in impoverished conditions in improvised camps in the region. He said that, in addition to being subjected to poor working conditions, the migrants appeared to be deprived of their liberty because, according to press reports, their employers – owners of strawberry greenhouses referred to as the “ greenhouses of shame ” – had imposed supervision of their activities, even during their free time. 50. Referring to the same press reports, the Ombudsman also stated that: the migrants were poorly paid, were working in unacceptable conditions and were obliged to pay their wages – which were said to be very low – to their employers to be able to purchase commodities and services from them (rent for a ‘ hovel ’, rudimentary provision of water and sometimes electricity, purchase of staple foods); the dirty waters from the camps were polluting the Katochi lagoon, a protected natural area in the European Natura 2000 network; poor hygiene was a concern not only for the health of migrants but also for that of the local population; in the camps, employers illegally set up shops in which migrants were obliged to buy basic goods to cater for their immediate needs; at the end of the work period, some employers denounced irregular migrants to the police in order to avoid paying them their wages. 51. The Ombudsman stated that the labour relations were characterised by an uncontrolled exploitation of migrants, which was reminiscent of the early years of the Industrial Revolution, and that they were governed by the physical and economic domination of the employers. He noted that groups of vulnerable people were affected and noted that the State was completely inactive. 52. The Ombudsman called upon the various national authorities to carry out inspections and he advocated the adoption by them of a whole series of measures which he considered appropriate. 53. In a letter of 26 May 2008, the Minister for Employment informed the Ombudsman that eleven inspections had been carried out. They had revealed eight cases where the wages paid did not correspond to those provided for in collective agreements, and two cases of child labour. He added that one company had had its licence temporarily suspended for having committed several offences and for ignoring the instructions of the labour inspectors. B. Facts reported by the Re-integration Centre for Migrant Workers with the support of the European Commission 54. A report on Greece, prepared as part of a project entitled “ Combating trafficking in human beings – going beyond ” (2011) by the Re-integration Centre for Migrant Workers with the support of the European Commission, reported the reaction of the authorities following the revelation of the situation experienced by migrants working in the strawberry fields of Manolada. The report refers to a large number of press articles published in 2008. It contains the following information. 55. The situation of migrant workers in Manolada was brought to the attention of the public in the spring of 2008 in a long article entitled “ Red gold: a sweet taste with bitter roots ”, published in the Epsilon supplement of the Sunday edition of the newspaper Elefterotypia. The article, describing in detail the working conditions of the migrant workers in Manolada and denouncing the practice of human trafficking, provoked a debate in the Greek Parliament. As a result of this publication, the Minister for Employment asked the Labour Inspectorate to carry out inspections. In addition, the Health Minister ordered health checks and the Minister of the Interior stated that he was preparing a decision that would oblige employers to provide decent accommodation for seasonal workers. 56. The Minister for Employment also found that inspections had taken place in 2006 and 2007 and had led to unsuccessful prosecutions. As regards the fresh inspections ordered by this Minister, they had not had any consequences: most of the strawberry producers had managed to hide the migrant workers, and only a few of them had been prosecuted for employing irregular migrants (one or two producers) or minors (two producers). 57. According to the press reports on which the report was based, in April 2008 1,500 workers refused to work and gathered in the village square to demand payment of their wages and a pay rise to EUR 30 per day. On the second day of the “ strike ” action, trade unionists from the Communist Party supported the migrants, and the producers ’ armed overseers attacked and struck the trade unionists, who they considered responsible for the attitude of the migrants, and also journalists. The latter, discouraged from continuing to write articles on the subject, even allegedly received death threats. That evening, the armed guards destroyed the migrants ’ huts and fired shots into the air to intimidate them. The police did not make any arrests. The migrants took refuge on the coast and spent the night there. | The applicants – 42 Bangladeshi nationals – were recruited in Athens and other parts of Greece between the end of 2012 and early 2013, without a Greek work permit, to work at the main strawberry farm in Manolada. Their employers failed to pay the applicants’ wages and obliged them to work in difficult physical conditions under the supervision of armed guards. The applicants alleged that they had been subjected to forced or compulsory labour. They further submitted that the State was under an obligation to prevent their being subjected to human trafficking, to adopt preventive measures for that purpose and to punish the employers. |
378 | Ill-treatment by prison officers | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1974 and 1981 respectively and live in Podgorica. 6. At the relevant time they were in detention ( u pritvoru ) at the Institution for the Execution of Criminal Sanctions ( Zavod za izvršenje krivičnih sankcija, hereinafter “IECS”), where they shared a cell with five other detainees. A. The events of 27 October 2009 and subsequent events 7. On 27 October 2009 the first applicant was to be transferred to a disciplinary unit ( disciplinsko odjeljenje ) and the cell in which he was detained was to be searched. The submissions of the applicants and the Government as to what exactly happened on that occasion differ. 8. The first applicant submitted that after having entered his cell, several guards had grabbed him and thrown him on to the concrete floor of the corridor outside the cell. They had handcuffed him, beaten him using batons and their fists, and sworn at him. In addition, two rows of guards positioned along the corridor had beaten him as he was being taken away. 9. The second applicant submitted that he had protested against this abuse. In response, four guards had started to kick him and had beaten him with their fists and batons. After that he had been taken into the corridor outside the cell, where eight other guards had continued to beat him. The beating had continued after he had returned to the cell. 10. The Government, for their part, submitted that the applicants had resisted the actions of the prison guards and had tried to prevent them from performing their duties, which had triggered the guards ’ intervention. In particular, when they had entered the cell the second applicant had attacked one of the guards without any reason and had injured him. 11. The first applicant had refused to be examined by a prison doctor as he doubted his impartiality. On the same day, however, he had talked to the doctor and, in answer to the doctor ’ s question whether he was feeling well and whether he had any injuries, he had apparently said “No, doctor, I am healthy and both physically and psychologically stable, and I do not consent to an examination; there is no need for it as I have not been ill-treated either physically or psychologically by the security forces”. 12. The second applicant had been examined by the prison doctor after the Deputy Ombudsman had made a request to that effect. It would appear that the doctor made two reports in this regard. The Ombudsman, who obtained the reports from the IECS, described them as barely legible and apparently referring to the same subject matter in two different ways. 13. On 30 October 2009 the first applicant ’ s representative in the domestic criminal proceedings reported the incident to the prison governor and requested that the appropriate responsible bodies be informed, that his client be provided with medical assistance, and that no further punitive measures be taken against him. 14. On an unspecified date before 4 November 2009 the State prosecutor ( Osnovno državno tužilaštvo ) asked the Court of First Instance ( Osnovni sud ) in Danilovgrad to establish the elements of criminal offences of torture and ill-treatment ( predlog radi utvrđivanja elemenata bića krivičnog djela mučenje i zlostavljanje ). Acting upon this an investigating judge ( istražni sudija ) from the Court of First Instance requested, inter alia, the medical examination of both applicants by an external forensic doctor, and ordered evidence to be heard from a number of individuals, including the prison guards, and the second applicant. 15. On 4 November 2009 an external forensic doctor examined the second applicant. He confirmed in his report that the second applicant had light body injuries, namely a 10-day old haematoma ( krvni podliv ) measuring 8 x 15 cm on the back of his left thigh and a haematoma on the lower lid of each eye. The doctor added that there was an undated medical report in the second applicant ’ s file confirming the presence of bruises around his eyes. He emphasised that the medical documentation provided by the IECS was “largely illegible”. The first applicant refused an examination by the external forensic doctor, as the examination had apparently been ordered when his bruises were already fading. 16. On 5 November 2009, the first applicant ’ s mother – during a visit – observed bruises on his face and haematomas on visible parts of his body. She reported this immediately to the prison administration ( Upravi zavoda ). On 9 November 2009 she lodged a criminal complaint ( krivična prijava ) with the competent State prosecutor against persons unknown, stating that the first applicant had two bruises, one on his left temple – which was already fading – and another on one of his legs, and that he had also complained that he was having difficulty sitting. 17. On an unspecified date the second applicant ’ s mother – who had been informed by one of the detainees about what had happened – reported the incident to the Ombudsman and visited her son. She observed that his eyes were closed and his face and visible parts of his body were covered in bruises. She reported this to the prison administration and asked that it be investigated. On 6 November 2009 she lodged a criminal complaint with the police ( Upravi policije ) against persons unknown. 18. On 5 November and 10 November 2009 the State prosecutor asked the Court of First Instance in Danilovgrad to investigate the complaints lodged on behalf of the second and first applicants respectively ( predlog za preduzimanje istražnih radnji ). Acting upon this the investigating judge requested, inter alia, a video-recording from the prison, the identification of all the guards who had been involved in the cell search, and that the evidence be heard from a number of individuals, including the prison guards, other detainees in the cell, the first applicant, and the first applicant ’ s representative in the domestic criminal proceedings. 19. The requested questioning (see paragraphs 14 in fine and 18 in fine above) took place between 4 November and 9 December 2009. Two of the detainees stated that they had seen the first applicant being beaten. Some of the guards stated that the first applicant had resisted being handcuffed by “attempting to get out of [their] hands, cursing and swearing” and, when on the floor, by kicking out (“ gicao se i mlatio nogama i rukama ”). One of the guards admitted “hitting [the first applicant] once with a baton, as he continued to resist and kick”. Another guard, who had seen the first applicant several days after the incident, had observed a cut below his left eye as well as a visible injury to one of his legs. 20. When visiting his client several days after the incident, the first applicant ’ s representative in the domestic criminal proceedings had observed a bruise under one of his eyes, and a bruise on the calf of his left leg with a diameter of about 20 cm. He described him as frightened and “mentally broken”. 21. One of the guards stated that the second applicant had grabbed the collar of one of his colleagues from behind, following which the guard in question had fallen over a bench. The guard had pushed him away and the second applicant had hit the wall and sunk to the floor ( pao je na zid i spustio se dolje na sjedalo ). The guard stated that his colleague had not hit the second applicant. Three other guards confirmed this. The prison doctor stated that he had noticed a haematoma under the second applicant ’ s eye. Three detainees confirmed that the second applicant had been beaten by several guards both in the cell and in the corridor. The applicants, for their part, repeated their allegations. 22. On 12 February 2010 the State prosecutor rejected ( odbacio ) the criminal complaints against two guards, I.M. and R.T., on the ground that even though they had used force by hitting the first applicant three times and the second applicant once with a baton, they had done so in order to overcome the applicants ’ resistance and thus acted within their powers ( u granicama službenog ovlašćenja ). While the first applicant had not been examined by a doctor, the medical documentation of the second applicant confirmed that he had sustained light injuries. That being so, the prosecutor concluded that the force used had not infringed human dignity and that there were no elements of any criminal offence entailing prosecution ex proprio motu. The prosecutor ’ s decision also identified other guards who had participated in the cell search. At the same time, the applicants were informed that they could pursue a subsidiary prosecution by lodging an indictment ( optužni predlog ) with the Court of First Instance. 23. On 23 February 2010 the lawyer retained by the applicants in respect of the complaints of alleged ill-treatment lodged an indictment for torture and ill-treatment which had resulted in severe bodily injuries ( teške tjelesne povrede ) against 16 prison guards named in the previous decision, including I.M. and R.T. 24. On 16 March 2010 the lawyer was informed by the first applicant that the video-recording obtained from the IECS by the Court of First Instance did not show the entire incident, namely it omitted his being beaten by two rows of guards in the corridor. He claimed, however, that another camera in the corridor must have recorded the beating and that the recording should be obtained from the prison authorities. 25. On 30 March 2010 the lawyer asked the court to obtain a recording from another camera, but apparently without success. 26. On 22 April 2010 the Court of First Instance decided that the applicants ’ indictment was to be treated as a criminal complaint and, as such, was to be lodged with the State prosecutor. 27. On 10 May 2010 the applicants appealed against the above decision. At the same time they also lodged a criminal complaint with the State prosecutor. 28. On 13 September 2010 the High Court rejected the applicants ’ appeal on the ground that the State prosecutor had delivered a decision only in respect of I.M. and R.T. and not the other guards. 29. On 19 October 2010 the State prosecutor rejected the applicants ’ criminal complaint on the ground that there were no elements of any criminal offence entailing prosecution ex proprio motu. At the same time the applicants were notified that they could pursue a subsidiary criminal prosecution by lodging a request for an investigation ( zahtjev za sprovođenje istrage ) with the Court of First Instance. 30. On 12 November 2010 the applicants lodged a request for an investigation with the Court of First Instance. 31. On 10 February 2011 the Constitutional Court rejected ( odbacuje se ) a constitutional appeal by the applicants against the above decisions of the Court of First Instance and the High Court on procedural grounds. In particular, it considered that the applicants ’ complaints were in substance about the criminal prosecution of other individuals and that – pursuant to the Court ’ s case-law – such complaints were incompatible ratione materiae with the Convention. It was also concluded that the decision of the Court of First Instance did not represent an “individual decision” in respect of which the Constitutional Court would be competent, but rather a procedural decision establishing whether the conditions were met for conducting an investigation in response to a direct indictment lodged by the applicants. In the impugned proceedings the courts had not decided on the merits of the request itself, but rather had ruled that the request should be treated as a criminal complaint. 32. On 18 March 2011 the Court of First Instance dismissed the applicants ’ request for an investigation on the grounds of lack of reasonable suspicion ( osnovana sumnja ) that the guards had tortured and ill-treated the applicants and that the force they had used had been necessary to overcome the applicants ’ resistance. On 13 June 2011 the High Court upheld this decision. B. Ombudsman ’ s involvement 33. On 30 October and 12 November 2009 the Deputy Ombudsman visited the applicants. She also spoke with other detainees from the same cell, who confirmed the first applicant ’ s allegations. She noted that the second applicant, who had “visible injuries on his head, especially around the eyes” as well as on his legs, had asked that he be allowed to lodge a criminal complaint and to be examined by the prison doctor. 34. In its response to an inquiry from the Ombudsman, the IECS stated that the second applicant had unjustifiably resisted and physically attacked guards who, in response, had used force and a baton to the extent necessary to overcome his resistance. The IECS also provided the doctor ’ s reports in respect of the second applicant, which were described by the Ombudsman as barely legible and from which it could be concluded that they dealt with the same subject matter, but had a different content. 35. In an opinion of 29 March 2010, the Ombudsman found that the applicants ’ rights had been violated on 27 October 2009. The opinion stated that they had offered no resistance and that there had been no justification for the use of force ( sredstva prinude ), especially not to the extent and in the manner alleged. At the same time the Ombudsman recommended that the IECS institute disciplinary proceedings against the guards responsible and report to the Ombudsman within 20 days on the measures taken. 36. On 1 April 2010 disciplinary proceedings were instituted against three prison guards, I.M., I.B. and R.T. On 31 May 2010 they were found responsible and fined 20% of their salaries in October 2009 for abusing their position or exceeding their authority ( zloupotreba položaja ili prekoračenje ovlašćenja ) as they had used excessive force disproportionate to the resistance offered by the applicants on 27 October 2009. In particular, I.M. had hit both applicants once with a rubber baton, I.B. had kicked the first applicant, and R.T. had hit the second applicant on the lower part of the body with the baton. The applicants ’ families and the Ombudsman were informed about the outcome of the disciplinary proceedings and the applicants ’ lawyer attended the hearing before the disciplinary commission. 37. Four other staff members who had participated in the cell search on the stated date, in relation to whom it was not proved that force had been used against the applicants, had apparently been transferred to other posts in other IECS units. 38. On 5 May 2010, during the parliamentary hearing of the prison governor (see paragraph 47 below), the Ombudsman confirmed that the IECS administration had duly acted upon his recommendations within the set time-limit. C. Civil proceedings 39. On 15 March 2011 the applicants lodged a compensation claim against the IECS relying, inter alia, on Article 3 of the Convention, and seeking 15,000 euros (EUR) each for non-pecuniary damage caused by torture on 27 October 2009. 40. On 7 November 2013, after a remittal, the Court of First Instance in Podgorica ruled partly in favour of the applicants by awarding EUR 1,050 each for non-pecuniary damage on account of violations of their rights and EUR 397 for the costs of the proceedings. The court based its decision on section 166 of the Obligations Act (see paragraph 62 below). In its reasoning the court took into account the statements of the applicants and the prison guards, medical findings, the video-recording, the fact that the three prison guards had been found responsible in disciplinary proceedings for the disproportionate use of force and had been fined, and the fact that the applicants had offered resistance, thus contributing to the non-pecuniary damage. The court found that the guards had exceeded their powers but also explicitly held that such actions could not be qualified as torture or inhuman or degrading treatment. 41. On 29 May 2014 the High Court upheld this judgment. In so doing it did not disagree with the conclusion of the first-instance court as to the qualification of the impugned incident. 42. On 23 October 2014 the Supreme Court partly overturned the previous decisions by awarding the applicants 1,500 EUR each for non-pecuniary damage, together with the statutory interest. In so doing the Supreme Court held, inter alia, that the use of force by prison guards could not be justified by the applicants ’ resistance and held that such action was in breach of fundamental values of every democratic society and degraded human dignity, but that it did not constitute torture or inhuman treatment. The applicants received this decision on 25 November 2014. D. Other relevant information 43. The applicants also maintain that they were threatened or abused between 23 December 2009 and 15 January 2010, in which regard their mothers lodged criminal complaints on 18 January 2010. On 22 June 2011 the State prosecutor ( Osnovni državni tužilac ) rejected the criminal complaint as regards the threat against the first applicant on the ground that no such incident had taken place. The criminal complaint in respect of the abuse alleged by the second applicant would appear to be still pending. 44. Between 27 April and 5 May 2010 the first applicant went on hunger strike, the reason being that disciplinary proceedings, with regard to the events of 27 October 2009, had been instituted against only three guards, who – according to him – were those least responsible for what had happened to him. 45. On an unspecified date in early May 2010 the first applicant had a meeting with the prison governor. On that occasion he apparently suggested to show the prison governor the camera which had recorded the entire incident of 27 October 2009. The governor allegedly suggested that the first applicant draw a sketch instead. 46. On at least two occasions the applicants complained to their lawyer that their ill-treatment had been continuous, and on at least one occasion they threatened to commit suicide if the pressure on them did not ease. The lawyer informed the High Court, the Minister of Justice, and the prison governor, requesting that disciplinary proceedings be instituted against those responsible. 47. On 5 May 2010 and 14 June 2011 the prison governor was questioned by the parliamentary Human Rights Committee. 48. On 25 June 2011 the parliamentary Human Rights Committee submitted its report to Parliament, one of its conclusions being that “there had been no torture or systemic violations of human rights in the IECS and that all the reported cases of the use of force and exceeding of powers had been sanctioned”. 49. The applicants also submitted that they had been deprived of an effective domestic remedy because one of the deputy State prosecutors at the time was the prison governor ’ s daughter and the Deputy Supreme State Prosecutor was his wife. 50. The first applicant is currently serving four prison sentences. He had been convicted eight times prior to this for various criminal offences. During his detention he had been subject to disciplinary sanctions four times, and twice more while serving his prison sentence. | The applicants complained that they had been ill-treated by prison guards – they submitted that the latter had beaten them with rubber batons during a search of their cell – and that the ensuing investigation into their complaints had been ineffective. According to the Montenegrin Government, the guards had had to use force against the applicants to overcome their resistance on entering their cell. |
1,064 | Right to a fair trial (Article 6 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 7. Mr Michel Bendenoun is a French citizen who lives in Zürich and is a dealer in coins. On 1 July 1973 he formed a public limited company under French law, ARTSBY 1881, with its head office in Strasbourg, for the purpose of dealing in old coins, objets d ’ art and precious stones. He owned the greater part of its capital (993 out of a total of 1,000 shares) and acted as its chairman and managing director. As a result of his activities, three sets of proceedings - customs, tax and criminal proceedings - were brought against him, and they progressed more or less in parallel. A. The customs proceedings 8. Between 3 June and 26 September 1975 the National Head Office of Customs Investigations ( Belfort frontier zone) carried out a check on imports made by ARTSBY 1881; they were acting on information received from an anonymous informer. The main events during the investigation were that Mr Bendenoun was questioned and documents were seized (3-6 June), clients were questioned (6 June), employees and former employees of the company and an expert were interviewed (8-17 September) and Mr Bendenoun himself was arrested in Metz (26 September). 9. On the basis of the evidence thus gathered the applicant was prosecuted for various customs and exchange-control offences. A composition was reached on 6 January 1978, however, whereby Mr Bendenoun admitted the offences and paid a fine of 300,000 French francs (FRF) and the customs returned the seized items to him. 10. During the proceedings the applicant had access to all the documents in the customs file, which contained 24 reports and 353 other documents. The reports were the following: no. 73/1: questioning of Mr Bendenoun (Strasbourg, 3 June 1975); no. 73/2: searches of the premises of ARTSBY 1881 and of Mr Bendenoun ’ s home, and interviewing of Mr Bendenoun ( Strasbourg, 3 June); no. 73/3: arrest of an employee of ARTSBY 1881 ( Strasbourg, 3 June); no. 73/4: arrest of an employee of ARTSBY 1881 ( Strasbourg, 3 June); no. 73/5: sealing of a bank strongbox ( Strasbourg, 3 June); no. 73/6: arrest of an employee of ARTSBY 1881 ( Strasbourg, 3 June); no. 73/7: opening of the bank strongbox ( Strasbourg, 4 June); no. 73/8: seizure of old coins, cash and a vehicle ( Strasbourg, 4 June); no. 73/9: interviewing of Mr Bendenoun ( Strasbourg, 4 June); no. 73/10: interviewing of Mr Bendenoun ( Strasbourg, 6 June); no. 73/11: interviewing of Mr Bendenoun ( Strasbourg, 6 June); no. 73/12: interviewing of one of ARTSBY 1881 ’ s clients (Pfastatt, 6 June); no. 73/13: interviewing of one of ARTSBY 1881 ’ s clients ( Colmar, 6 June); no. 73/14: interviewing of an employee of ARTSBY 1881 ( Strasbourg, 8 September); no. 73/15: interviewing of one of ARTSBY 1881 ’ s clients ( Strasbourg, 8 September); no. 73/16: interviewing of a former employee of ARTSBY 1881 ( Strasbourg, 10 September); no. 73/17: interviewing of a former employee of ARTSBY 1881 ( Strasbourg, 10 September); no. 73/18: interviewing of a numismatist ( Paris, 15 September); no. 73/19: interviewing of a former representative of ARTSBY 1881 ( Strasbourg, 17 September); no. 73/20: interviewing of a former chairman of ARTSBY 1881 ( Strasbourg, 24 September); no. 73/21: arrest and interviewing of Mr Bendenoun ( Metz, 26 September); no. 73/22: interviewing of a representative of ARTSBY 1881 ( Metz, 26 September); no. 73/23: interviewing of Mr Bendenoun ( Metz, 26 September); no. 73/24: interviewing of a witness ( Metz, 26 September). Mr Bendenoun received a copy of eight of them (nos. 73/1, 73/2, 73/8, 73/9, 73/10, 73/11, 73/21 and 73/23). The 353 documents comprised a register bearing the title "Invoice control" (sealed document no. 1), seized on ARTSBY 1881 ’ s premises on 3 June 1975, and invoices and authentication certificates (sealed documents nos. 2 to 353), seized on the same day at the applicant ’ s home. 11. At some time - according to the Government - before 31 August 1976 and pursuant to Article 1987 of the General Tax Code (which became Article L 83 of the Code of Tax Procedure on 1 January 1982), the customs sent the file to the Revenue. B. The tax proceedings 1. Before the tax authorities 12. From 31 August to 28 September 1976 the Head Office of the Bas-Rhin Revenue carried out an inspection of ARTSBY 1881 ’ s accounts. 13. On 30 November 1976 the inspector sent two supplementary tax assessments to Mr Bendenoun as chairman and managing director of the company. One of them related to corporation tax and the other to value-added tax. They set out in detail the manner in which the inspector had determined what receipts had not been entered in the accounts and he confirmed them on 4 April 1977 after receiving comments from the applicant. On the same date he also sent Mr Bendenoun personally a supplementary income-tax assessment, which he confirmed on 11 May 1977. Under the supplementary assessment the applicant was required to pay an additional FRF 841,366, including FRF 422,534 in penalties. The company was required to pay additional tax and penalties amounting to FRF 157,752 and FRF 309,738 in respect of the value-added tax and FRF 270,312 and FRF 260,660 in respect of corporation tax. 14. The inspector then drew up a nineteen-page report, ending with a request that criminal proceedings should be taken against the applicant, and these were instituted on 30 November 1977 (see paragraph 25 below). 15. On 6 December 1977 ARTSBY 1881, in the person of its chairman and managing director, lodged two appeals with the Regional Commissioner of Revenue in Strasbourg in respect of the corporation tax and the value-added tax. Mr Bendenoun filed a third appeal, in his own name, concerning the income tax. The Regional Commissioner refused the first two appeals on 20 April 1978 and the third on 3 April 1979. 2. In the administrative courts (a) The Strasbourg Administrative Court 16. On 16 June 1978 Mr Bendenoun, acting on behalf of ARTSBY 1881, made two applications to the Strasbourg Administrative Court concerning the corporation tax and the value-added tax. On 7 June 1979 he made a further application to the same court, this time in his own name, challenging the supplementary tax assessment on his income. 17. The Revenue annexed to its two sets of pleadings dated 5 April 1979 four customs reports (nos. 73/9, 73/10, 73/16 and 73/17 - see paragraph 10 above) and two letters from ARTSBY 1881 dated 30 May 1975 and June 1976. 18. On 29 May 1979 Mr Bendenoun ’ s lawyer sent two identically worded letters to the President of the court. They read as follows: "On 17 April 1979 you kindly forwarded to me the Regional Commissioner of Revenue ’ s pleadings of 5 April 1979. These pleadings refer several times to a file opened on Mr Michel Bendenoun, the chairman and managing director of the ARTSBY company, by the customs authorities. Six documents from that file are annexed to the Revenue ’ s pleadings. It would seem essential for the whole of the file to be sent to the court and the undersigned. The scale of the customs investigation was very large indeed and a number of reports, whose existence has not been mentioned by the authorities, are directly relevant to the present dispute. ..." On 29 June 1979 the President of the court wrote to the Strasbourg public prosecutor to this end: "For the purposes of preparing for trial a case concerning tax files relating to the ARTSBY company, I should be obliged if you would kindly produce to the Administrative Court the file on Mr Bendenoun, the chairman and managing director of the company. A number of reports are directly relevant to the case, and the National Head Office of Customs Investigations has informed me that the file in question was sent to you on 15 April 1978..." In a letter of 11 July 1979 the public prosecutor replied as follows: "... I am unable to send you the file opened on Michel Bendenoun in connection with the criminal investigation on charges of tax evasion. I would point out that the Revenue is a civil party to the criminal proceedings and therefore may, since it has access to the case file, apply for a copy of it if it sees fit. ..." 19. On 19 July 1979 counsel for the applicant wrote again to the President of the court: "... ... [my] request was not for production of the tax-evasion file but of a customs file which has not been the subject of any judicial investigation involving the Strasbourg public prosecutor ’ s office as a composition was reached between Mr Bendenoun and the customs authorities. ... I would add that production is being sought at my request and not at that of the Revenue, since it is precisely the Revenue that is relying on documents from the customs investigation, and unless he has been able to inspect the customs file in its entirety Mr Bendenoun cannot make any sensible comments." 20. On 9 December 1980 Mr Bendenoun ’ s lawyer sent another letter to the President of the court: "... To date, I have ... not been able to study the customs file. The Revenue, however, relies on certain reports taken from a large mass of reports. I should therefore be obliged if you would let me know how I am to be able to study the whole customs file. I should also be glad if you would kindly extend the time allowed me for submitting comments until the customs file has been made available to me, as requested as early as 1979." The President of the Administrative Court sent the public prosecutor a letter dated 30 December 1980 in which he said: "For the purposes of preparing for trial a case concerning tax files on the ARTSBY company, I should be obliged if you would kindly produce to the Administrative Court the documents relating to the customs file on the criminal investigation into Mr Bendenoun, the chairman and managing director of the company. This customs file is directly relevant to the tax case, which is before the Administrative Court also." The request went unanswered. 21. On 30 November 1981 the Administrative Court delivered three judgments in which it dismissed ARTSBY 1881 ’ s and Mr Bendenoun ’ s applications. It did not mention the decisions given in the case by the criminal courts (see paragraphs 28 and 30 below). (b) The Conseil d ’ État 22. On 1 March 1982 Mr Bendenoun, acting on his own behalf and on behalf of ARTSBY 1881, appealed to the Conseil d ’ État against the three Administrative Court judgments. 23. In supplementary pleadings filed on 1 July 1982 he set out the following ground of appeal: "Although the tax authorities made ample use of items in the customs file which in their view showed that the supplementary assessments in issue were justified, while ignoring those which clearly would have provided grounds for setting them aside, they deliberately decided not to meet the appellant ’ s requests to inspect that customs file in its entirety. ... Compliance with the adversary principle precludes accepting an argument which the opposing side cannot be aware of and which thus cannot be sensibly challenged by them." 24. The Conseil d ’ État dismissed the appeals in three judgments on 28 May 1986. The reasons given for the one concerning value-added tax for the period from 1 July 1973 to 31 December 1975 (no. 40482) were worded as follows: "The lawfulness of the judgment appealed against It appears from the pre-trial preparations that the applicant company was put in a position to inspect all the documents in the file that were likely to have a bearing on the resolution of the dispute, including the customs reports establishing the existence of concealed receipts. That being so, the ground of appeal alleging that the judgment at first instance was unlawful because the ‘ ARTSBY 1881 ’ company was unable, during the course of the proceedings at first instance, to inspect all the documents in the customs file must be rejected. The lawfulness of the assessment procedure and the burden of proof It appears from the pre-trial preparations that in June 1975 the customs seized invoices for a total of FRF 1,676,710 at the home of Mr Bendenoun, the chairman and managing director of the public limited company ‘ ARTSBY 1881 ’, which trades in old coins and nearly all of whose capital was owned by Mr Bendenoun from 1974 onwards. It appears from the findings of fact made by the Colmar Court of Appeal in a judgment that was given in criminal proceedings on 13 May 1981 and has become final (findings which are binding erga omnes) that Mr Bendenoun, ‘ who did not have sufficient financial resources personally to carry out ’ the transactions recorded in the invoices seized at his home, ‘ deliberately decided, with the aim of evading tax on part of the company ’ s receipts, to conceal about 25% of the company ’ s turnover by not entering it in the company ’ s books and taking care to keep the copies of the relevant invoices at home... ’. These findings establish that the bookkeeping of the ‘ ARTSBY 1881 ’ company was not reliable. That being so, the Revenue was legally entitled to rectify of its own motion the figure of the company ’ s turnover for the period from 1 July 1973 to 31 December 1974. It is consequently for the company to show that the basis taken by the Revenue for making the disputed assessments was too high. The amount of the assessments ... The penalties The applicant company intended, by means of a systematic process of concealment, to evade payment of value-added tax on transactions made in 1974 and 1975. The authorities were therefore entitled to regard it as having been guilty of deception and subsequently to increase the tax due by 200% as provided in Articles 1729 and 1731 of the General Tax Code taken together." The same reasoning was adopted in the other two judgments (nos. 40480 and 40481). C. The criminal proceedings 1. The judicial investigation 25. By means of two applications made on 30 November 1977 the Head Office of the Bas-Rhin Revenue lodged a complaint against Mr Bendenoun with the Strasbourg public prosecutor ’ s office. The applications were accompanied by a series of supporting documents. 26. On 3 March 1978 the investigating judge instructed the police to obtain the customs file. This was received on 19 April 1978 and contained copies of the 24 reports, sealed document no. 1 drawn up by officials of the National Head Office of Customs Investigations and the 352 other sealed documents in a hardback file. The whole customs file remained at the court throughout the judicial investigation and counsel for the accused had access to it on each occasion that his client was questioned (12 January 1978, 8 February 1978 and 12 February 1980) and again before the trial. 27. On 21 May 1980 the public prosecutor applied for Mr Bendenoun to be committed for trial. 2. The trial and the appeals (a) The Strasbourg Criminal Court 28. On 21 November 1980 the Strasbourg Criminal Court delivered two judgments (nos. 6776/80 and 6780a/80) concerning the accused, the first in his capacity as chairman and managing director of ARTSBY 1881 (corporation tax and value-added tax), the second in his personal capacity (income tax). In each judgment he was given a suspended sentence of fifteen months ’ imprisonment for tax evasion, both sentences to run concurrently, and was ordered to be imprisoned for one year in the event of non-payment of the sums owed. (b) The Colmar Court of Appeal 29. Mr Bendenoun appealed against these judgments to the Colmar Court of Appeal. In his submissions he complained that the documents relating to the customs proceedings were no longer in the file. 30. In two judgments on 13 May 1981 (nos. 615/81 and 616/81) the Criminal Division of the Court of Appeal upheld the decisions of the trial court and also sentenced Mr Bendenoun to a fine of FRF 30,000. In the first judgment it dismissed the ground of appeal based on the fact that documents were missing from the file: "... (d) knowledge of [the documents in the customs file] is in no way necessary or even helpful for the discovery of the truth, since the statements lawfully obtained from the accused during the present proceedings and the documents that he himself submitted at the trial provided ample evidence in respect of the sole difficulty on which his guilt depends; and (e) the rights of the defence have thus not been prejudiced in any way." (c) The Court of Cassation 31. Mr Bendenoun appealed on points of law against the two judgments. In particular, he alleged that the rights of the defence had been infringed in that the customs file had not been put before the Court of Appeal. 32. The Court of Cassation dismissed his appeals in two judgments on 24 May 1982. It rejected the ground of appeal just referred to in the following terms, identical in both judgments: "... In finding Bendenoun guilty of fraudulently evading assessment or payment of taxes, the Court of Appeal stated that the defendant did not ‘ dispute the existence of the invoices discovered ’; that it was thus ‘ unnecessary to be acquainted with all the documents in the customs proceedings ’; that it was apparent from the facts established in the judicial investigation that Bendenoun had evaded the payment of corporation tax by the ARTSBY 1881 company by concealing taxable sums exceeding the statutory allowances; and that the defendant ’ s explanation that the transactions in question had been effected in the course of a private, unregistered business as a dealer in coins were unacceptable owing to the circumstances set out and analysed by the court below. Given these findings and statements, which adequately and consistently show that all the ingredients of tax evasion - as regards both the actus reus and the mens rea - have been made out against Bendenoun, and seeing also that it is apparent from this that the court below based its decision solely on evidence which was put before it during the trial and was the subject of adversarial argument before it in accordance with the provisions of Article 427 of the Code of Criminal Procedure and did not in any way infringe the rights of the defence, the grounds of appeal, which merely attempt to call in question the unfettered discretion of the courts below to assess this evidence, must fail." | In 1973 the applicant, a dealer in coins, formed a public limited company under French law for the purpose of dealing in old coins, objets d’art and precious stones. He owned the greater part of its capital and acted as its chairman and managing director. As a result of his activities, three sets of proceedings – customs, tax and criminal proceedings – were brought against him, and they progressed more or less in parallel. The applicant complained in particular that he had not had a fair trial in the administrative courts in respect of the tax surcharges that had been imposed on him. While the Revenue had carefully chosen, unilaterally, the incriminating documents and produced them to the administrative courts, he himself had not had access to the whole of the file compiled by the customs, which included not only the reports but also the information on which they were based. |
153 | Medically-assisted procreation | I. THE CIRCUMSTANCES OF THE CASE 9. The applicants were born in 1966, 1962, 1971 and 1971 respectively and live in L. and R. 10. The first applicant is married to the second applicant and the third applicant to the fourth applicant. 11. The first applicant suffers from fallopian-tube-related infertility ( eileiterbedingter Sterilität ). She produces ova, but, due to her blocked fallopian tubes, these cannot pass to the uterus, so natural fertilisation is impossible. The second applicant, her husband, is infertile. 12. The third applicant suffers from agonadism ( Gonadendys genesie ), which means that she does not produce ova at all. Thus, she is completely infertile but has a fully developed uterus. The fourth applicant, her husband, in contrast to the second applicant, can produce sperm fit for procreation. 13. On 4 May 1998 the first and third applicants lodged an application ( Individual antrag ) with the Constitutional Court ( Verfassungs gerichtshof ) for a review of the constitutionality of sections 3(1) and 3(2) of the Artificial Procreation Act ( Fortpflanzungs medizingesetz – see paragraphs 27-34 below). 14. The applicants argued before the Constitutional Court that they were directly affected by the above provisions. The first applicant submitted that she could not conceive a child by natural means; thus, the only way open to her and her husband would be in vitro fertilisation using sperm from a donor. That medical technique was, however, ruled out by sections 3(1) and 3(2) of the Artificial Procreation Act. The third applicant submitted that she was infertile. As she suffered from agonadism, she did not produce ova at all. Thus, the only way open to her of conceiving a child was to resort to a medical technique of artificial procreation referred to as heterologous embryo transfer, which would entail implanting into her uterus an embryo conceived with ova from a donor and sperm from the fourth applicant. However, that method was not allowed under the Artificial Procreation Act. 15. The first and third applicants argued before the Constitutional Court that the impossibility of using the above-mentioned medical techniques for medically assisted conception amounted to a breach of their rights under Article 8 of the Convention. They also relied on Article 12 of the Convention and on Article 7 of the Austrian Federal Constitution, which guarantees equal treatment. 16. On 4 October 1999 the Constitutional Court held a public hearing in which the first applicant, assisted by counsel, participated. 17. On 14 October 1999 the Constitutional Court decided on the first and third applicants’ request. It found that their request was partly admissible in so far as the wording concerned their specific case. In this respect, it found that the provisions of section 3 of the Artificial Procreation Act, which prohibited the use of certain procreation techniques, was directly applicable to the applicants’ case without it being necessary for a decision by a court or administrative authority to be taken. 18. As regards the merits of their complaints, the Constitutional Court considered that Article 8 of the Convention was applicable in the applicants’ case. Although no case-law of the European Court of Human Rights existed on the matter, it was evident, in the Constitutional Court’s view, that the decision of spouses or a cohabiting couple to conceive a child and make use of medically assisted procreation techniques to that end fell within the sphere of protection under Article 8. 19. The impugned provisions of the Artificial Procreation Act interfered with the exercise of this freedom in so far as they limited the scope of permitted medical techniques of artificial procreation. As for the justification for such an interference, the Constitutional Court observed that the legislature, when enacting the Artificial Procreation Act, had tried to find a solution by balancing the conflicting interests of human dignity, the right to procreation and the well-being of children. Thus, it had enacted as leading features of the legislation that, in principle, only homologous methods – such as using ova and sperm from the spouses or from the cohabiting couple itself – and methods which did not involve a particularly sophisticated technique and were not too far removed from natural means of conception would be allowed. The aim of the legislature was to avoid the forming of unusual family relationships, such as a child having more than one biological mother (a genetic mother and one carrying the child), and to avoid the risk of the exploitation of women. 20. The use of in vitro fertilisation as opposed to natural procreation raised serious issues as to the well-being of children thus conceived, their health and their rights, and also touched upon the ethical and moral values of society and entailed the risk of commercialisation and selective reproduction ( Zuchtauswahl ). 21. However, applying the principle of proportionality under Article 8 § 2 of the Convention, such concerns could not lead to a total ban on all possible medically assisted procreation techniques, as the extent to which public interests were concerned depended essentially on whether a homologous technique (having recourse to the gametes of the couple) or heterologous technique (having recourse to gametes external to the couple) was used. 22. In the Constitutional Court’s view, the legislature had not overstepped the margin of appreciation afforded to member States when it established the permissibility of homologous methods as a rule and insemination using donor sperm as an exception. The choices the legislature had made reflected the then current state of medical science and the consensus in society. It did not mean, however, that these criteria were not subject to developments which the legislature would have to take into account in the future. 23. The legislature had also not neglected the interests of men and women who had to avail themselves of artificial procreation techniques. Besides strictly homologous techniques it had accepted insemination using donor sperm. Such a technique had been known and used for a long time and would not bring about unusual family relationships. Further, the use of these techniques was not restricted to married couples but also included cohabiting couples. However, the interests of the individuals concerned had to give way to the above-mentioned public interest when a child could not be conceived by having recourse to homologous techniques. 24. The Constitutional Court also found that for the legislature to prohibit heterologous techniques, while accepting as lawful only homologous techniques, was not in breach of the constitutional principle of equality which prohibits discrimination. The difference in treatment between the two techniques was justified because, as pointed out above, the same objections could not be raised against the homologous method as against the heterologous one. As a consequence, the legislature was not bound to apply strictly identical regulations to both. Also, the fact that insemination in vivo with donor sperm was allowed while ovum donation was not, did not amount to discrimination since sperm donation was not considered to give rise to a risk of creating unusual family relationships which might adversely affect the well-being of a future child. 25. Since the impugned provisions of the Artificial Procreation Act were in line with Article 8 of the Convention and the principle of equality under the Federal Constitution, there had also been no breach of Article 12 of the Convention. 26. This decision was served on the first and third applicants’ lawyer on 8 November 1999. | This case concerned two Austrian couples wishing to conceive a child through IVF. One couple needed the use of sperm from a donor and the other, donated ova. Austrian law prohibits the use of sperm for IVF and ova donation in general. |
128 | Internet | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1986. 7. On 15 March 1999 an unidentified person or persons placed an advertisement on an Internet dating site in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time, which showed his picture, as well as his telephone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older “to show him the way”. 8. The applicant became aware of the advertisement on the Internet when he received an e-mail from a man, offering to meet him and “then to see what you want”. 9. The applicant ’ s father requested the police to identify the person who had placed the advertisement in order to bring charges against that person. The service provider, however, refused to divulge the identity of the holder of the so-called dynamic Internet Protocol ( IP ) address in question, regarding itself bound by the confidentiality of telecommunications as defined by law. 10. The police then asked the Helsinki District Court ( käräjäoikeus, tingsrätten ) to oblige the service provider to divulge the said information pursuant to section 28 of the Criminal Investigations Act ( esitutkintalaki, förundersökningslagen; Act no. 449/1987, as amended by Act no. 692/1997). 11. In a decision issued on 19 January 2001, the District Court refused since there was no explicit legal provision authorising it to order the service provider to disclose telecommunications identification data in breach of professional secrecy. The court noted that by virtue of Chapter 5a, section 3, of the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslagen; Act no. 450/198 7 ) and section 18 of the Protection of Privacy and Data Security in Telecommunications Act ( laki yksityisyydensuojasta televiestinnässä ja teletoiminnan tietoturvasta, lag om integritetsskydd vid telekommunikation och dataskydd inom televerksamhet; Act no. 565/1999) the police had the right to obtain telecommunications identification data in cases concerning certain offences, notwithstanding the obligation to observe secrecy. However, malicious misrepresentation was not such an offence. 12. On 14 March 2001 the Court of Appeal ( hovioikeus, hovrätten ) upheld the decision and on 31 August 2001 the Supreme Court ( korkein oikeus, högsta domstolen ) refused leave to appeal. 13. The person who had answered the dating advertisement and contacted the applicant was identified through his e-mail address. 14. The managing director of the company which provided the Internet service could not be charged, because in his decision of 2 April 2001 the prosecutor found that the alleged offence had become time-barred. The alleged offence was a violation of the Personal Data Act ( henkilötietolaki, personuppgiftslagen; Act no. 523/99, which came into force on 1 June 1999 ). More specifically, the service provider had published a defamatory advertisement on its website without verifying the identity of the sender. V. THIRD - PARTY SUBMISSIONS 33. The Helsinki Foundation for Human Rights submitted that the present case raises the question of balancing the protection of privacy, honour and reputation on the one hand and the exercise of freedom of expression on the other. It took the view that the present case offers the Court an opportunity to define the State ’ s positive obligations in this sphere and thereby to promote common standards in the use of the Internet throughout the member States. 34. It pointed out that the Internet is a very special method of communication and one of the fundamental principles of its use is anonymity. The high level of anonymity encourages free speech and expression of various ideas. On the other hand, the Internet is a powerful tool for defaming or insulting people or violating their right to privacy. Due to the anonymity of the Internet, the victim of a violation is in a vulnerable position. Contrary to traditional media, the victim cannot easily identify the defaming person due to the fact that it is possible to hide behind a pseudonym or even to use a false identity. | This case concerned an advertisement of a sexual nature posted about a 12-year old boy on an Internet dating site. Under Finnish legislation in place at the time7, the police and the courts could not require the Internet provider to identify the person who had posted the ad. In particular, the service provider refused to identify the person responsible, claiming it would constitute a breach of confidentiality. |
873 | Disclosure of personal data | 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. | This case concerned the disclosure to the media of footage filmed in a street by a closed-circuit television (CCTV) camera installed by the local council, showing the applicant cutting his wrists. |
54 | Applications lodged by the abducting parent | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1974 and now resides in Australia. She is a Latvian national, who, in 2007, also acquired Australian nationality. 10. After meeting T. and beginning a relationship with him at the beginning of 2004, she moved into his flat at the end of that year, although she was still married to another man, R.L., whom she divorced on 24 November 2005. 11. On 9 February 2005 the applicant gave birth to a daughter, E. The child’s birth certificate does not give the father’s name, and no paternity test was carried out. The applicant, who was still living with T., subsequently received single-parent benefits. In spite of the deterioration in their relationship, the applicant continued to live with T. as a tenant. 12. On 17 July 2008 the applicant left Australia for Latvia with her daughter, then aged three years and five months. A. The proceedings in Australia 13. On 19 August 2008 T. submitted an application to the Family Court in Australia to establish his parental rights in respect of the child. In support of his claim, he testified in a sworn affidavit that he had been in a relationship with the applicant since 2004 and the latter had always indicated that he was the father of the child, the rental agreement with the applicant for the flat was a sham and had been a mutual decision, and he had made false statements to the social security services in order to enable the applicant to receive single-parent benefit. T. asserted that the applicant had left Australia with the child without his consent, in violation of Article 3 of the Hague Convention, and had gone to an unknown place of residence in Latvia. In support of his claim, he submitted e-mail correspondence with members of his family. 14. The applicant, although apparently invited by various means to attend the hearing or follow it by telephone, was not present. 15. By a judgment of 6 November 2008, the Australian Family Court recognised T.’s paternity in respect of E. and held that the applicant and T. had had joint parental responsibility for their child since her birth. The judge added that examination of the case would be continued once the child had been returned to Australia, while stating as follows: “... however, it is not of course for me to say whether the child’s presence in Latvia is the consequence of a wrongful removal or retention. With all due respect, it is for the Latvian judge to rule on that question.” 16. The applicant did not appeal against that decision. B. The proceedings in Latvia 17. On 22 September 2008 the Ministry of Children and Family Affairs, which was the Latvian Central Authority responsible for implementing the Hague Convention, received from their Australian counterpart a request from T. seeking the child’s return to Australia on the basis of that Convention. The return request was accompanied by a sworn affidavit setting out the applicable Australian law and certifying, without prejudice to the issue of paternity, that on the date on which the child had been removed from Australia T. had exercised joint parental authority over her within the meaning of Article 5 of the Hague Convention. 18. On 19 November 2008 the Riga City Zemgale District Court (“the District Court”) examined the request in the presence of both T. and the applicant. 19. At the hearing the applicant contested T.’s request. She explained that he had no grounds for being recognised as the father, since she had still been married to another man at the time of the child’s birth and T. had never expressed a wish to have his paternity recognised prior to her departure from Australia. She alleged that as T. had become hostile and sometimes aggressive towards her she had requested that persons who had visited her in Australia be called as witnesses. The applicant also submitted that T. had initiated the proceedings only in order to benefit from them in criminal proceedings that had allegedly been brought against him in Australia. 20. The representative of the Bāriņtiesa, a guardianship and curatorship institution established by Riga City Council, called for T.’s request to be dismissed, arguing, on the one hand, that the applicant had been a single mother when the child was removed from Australia and, on the other, that the child had developed ties with Latvia. 21. By a judgment of 19 November 2008, the District Court granted T.’s request and ordered that the child be returned to Australia immediately and, in any event, not later than six weeks after its decision. In its reasoning, noting that the Australian courts had established that the applicant and T. exercised joint parental responsibility, the court held, firstly, that the Latvian courts could neither reverse that decision, nor interpret and apply the Australian law. It further held that, in application of Articles 1 and 14 of the Hague Convention, the Latvian courts did not have jurisdiction to rule on T.’s parental responsibility for the child, but only on the child’s departure from Australia and her possible return. It considered that the child’s removal had been wrongful and had been carried out without T.’s consent. As to the application of Article 13 of the Hague Convention, it held, in the light of photographs and copies of e-mails between the applicant and T.’s relatives, that he had cared for the child prior to her departure for Latvia. While noting that witness statements referred to arguments between the parties and to the fact that T. had behaved irascibly towards the applicant and the child, it held that this did not enable it to conclude that T. had not taken care of the child. Lastly, the court dismissed as unfounded the allegation that the child’s return posed a risk of psychological harm. 22. The applicant lodged an appeal, arguing that when they had left Australia she had been the child’s sole guardian in law and in practice and, further, that her daughter’s return to Australia would expose the child to psychological harm. In support of the latter point, she submitted a certificate prepared by a psychologist at her request after the first-instance court’s judgment. This certificate, based on an examination of E. on 16 December 2008, stated: “Although it is clear from the examination that her development is adequate in terms of knowledge and language, the child is unable, on account of her age, to say which place of residence she prefers ... Bearing in mind the child’s age and her close emotional ties to her mother, which is normal for her age, her emotional well-being is primarily based on and closely linked to [the applicant’s] psychological balance ... The child needs the daily presence of her mother and to live with her permanently in the same place. Given her age – three years and ten months – an immediate separation from her mother is to be ruled out, otherwise the child is likely to suffer psychological trauma, in that her sense of security and self-confidence could be affected.” 23. The applicant also maintained on appeal that Latvian was the child’s mother tongue, that she had attended pre-school activities in Latvia, that she had no ties in Australia and that she needed her mother’s presence. She alleged that T. had never helped them financially and had ill-treated them. In addition, she criticised the lower court for refusing to request information from the Australian authorities about T.’s criminal profile, previous convictions and the charges of corruption allegedly brought against him. She also contended that, were she to return to Australia, she would be unemployed and would have no income, and criticised the District Court for failing to provide for protection measures in the event of return. 24. On 6 January 2009, on an application by the applicant, the District Court ordered a stay of execution of the decision of 19 November 2008 ordering the child’s return pending completion of the appeal proceedings. Relying on the Preamble to the Hague Convention, it held that the child’s best interests had to take priority over an immediate return, that the child was attached to her mother and that, according to the psychological report submitted by the applicant, a sudden interruption of contact with her mother would traumatise her. 25. On 26 January 2009, after a hearing in the presence of both the applicant and T., the Riga Regional Court ( Rīgas Apgabaltiesa ) upheld the first-instance judgment. It held that T.’s request had complied with the Hague Convention, noting the short time-limits set out in it and observing that no formality or analysis was necessary in order to recognise the Australian court’s decision. In addition, it held that the lower court had correctly found, on the basis of all the relevant evidence, especially the letters and photographs that had been submitted, that T. had cared for the child. With regard to the argument by the applicant and the representative of the Bāriņtiesa concerning the alleged lack of information about the child’s situation in the event of her return to Australia, it considered that “there are no grounds for doubting the quality of welfare and social protection provided to children in Australia, given that, according to the [sworn affidavit], Australian legislation provides, inter alia, for the security of children and [their] protection against ill-treatment within the family”. 26. With regard to the applicant’s allegations, it held as follows: “[The Court] dismisses ... the allegation that [T.] ill-treated [the applicant] and the child, as well as [the allegation] that he was liable to a prison sentence for [criminal charges brought against him] as no evidence has been submitted which could, even indirectly, support the allegations. Neither can the conclusion of the [psychological assessment] of 16 December 2008 serve as evidence against returning the child to the requesting State. Although the conclusion stated that the child was in need of her mother and that immediate termination of contact between the mother and the child should be ruled out, the issue raised before this Court does not concern custody rights ... Pursuant to Article 19 of the Hague Convention, a decision under this Convention concerning the return of a child shall not be taken to be a determination on the merits of any custody issue. [The Court] considers that ... [the child] ... has not reached an age or level of maturity which would allow her to formulate an opinion concerning a return to Australia.” 27. On 5 February 2009 a bailiff instructed the applicant to comply with the decision ordering her to return the child by 19 February 2009 at the latest. The applicant refused to do so. 28. On an unspecified date a bailiff lodged an application with the District Court for execution of the order to return the child. At the same time the District Court, having received a request from the applicant for a stay of execution of the return order for a period of six to twelve months, scheduled a hearing on 16 April 2009. 29. On 6 March 2009, at T.’s request, the Latvian Central Authority asked the Bāriņtiesa to verify the child’s living conditions and to inform the applicant of T.’s request to see the child. 30. On 14 March 2009 T. met the applicant and E. unexpectedly near a shopping centre. Taking advantage of this situation, he took E. and drove her to Tallinn (Estonia), then began the return journey to Australia. On 16 March 2009 the Latvian Central Authority, in response to a request from its Estonian counterpart and with a view to authorising T. to take a flight to Helsinki, supplied information concerning T.’s right to return to Australia with his daughter. 31. A complaint subsequently filed by the applicant for abduction was dismissed, as was a disciplinary appeal against the Latvian Central Authority; the applicant’s request for a stay of execution of the return order became devoid of purpose. C. The situation in Australia since the child’s return 32. In September 2009 the Australian Family Court set aside all prior decisions relating to the parents’ rights and ruled that T. had sole parental responsibility for the child. While prohibiting the applicant from making any public statement about matters concerning the child or T., it authorised her to visit her daughter under the supervision of a social worker. The court also prohibited her from speaking to the child in Latvian and ruled that, until the child reached the age of eleven, the applicant was restrained from visiting or communicating by any means with any childcare facility, pre-school or school attended by her daughter, or with a parent of any other child attending the same institution. 33. Before the Grand Chamber, the Government, referring to an article published in the Latvian press in October 2011 which contained, in particular, statements by the applicant’s sister, indicated that the applicant had returned to live in Australia, had found accommodation and was working in a State welfare institution. They also noted that she was in regular contact with her daughter, meeting her twice a week in a welfare centre, and that she had been able to see her without a social worker being present. | This case concerned the procedure for the return of a child to Australia, her country of origin, which she had left with her mother at the age of three years and five months, in application of the Hague Convention of 25 October 1980, and the mother’s complaint that the Latvian courts’ decision ordering that return had breached her right to respect for her family life within the meaning of Article 8 of the Convention. |
405 | Deprivation of liberty / Restriction on the freedom of movement | I. CIRCUMSTANCES OF THE CASE 6. The applicants, Mahad, Lahima, Abdelkader and Mohammed Amuur, are Somali nationals. They are brothers and sister born respectively in 1970, 1971, 1973 and 1975. A. Refusal of leave to enter French territory and of applications for refugee status 7. The applicants arrived at Paris- Orly Airport on 9 March 1992 on board a Syrian Airlines flight from Damascus ( Syria ), where they had stayed for two months after travelling there via Kenya. They asserted that they had fled Somalia because, after the overthrow of the regime of President Siyad Barre, their lives were in danger and several members of their family had been murdered. Five of their cousins and thirteen other Somali nationals (including eleven children) also arrived, some on the same flight and others from Cairo on 14 March. However, the airport and border police refused to admit them to French territory, on the ground that their passports had been falsified, and held them at the Hôtel Arcade, part of which had been let to the Ministry of the Interior and converted for use as a waiting area for Orly Airport. According to the applicants, police officers would drop them off at the airport ’ s Espace lounge very early in the morning and take them back to the Hôtel Arcade in the evening. 8. On 12 March, in accordance with Article 12 of Decree no. 82-442 of 27 May 1982 (see paragraph 16 below), the Minister of the Interior considered an application by the applicants for leave to enter under the right of asylum. The applicants were granted legal aid as from 24 March, when CIMADE, a humanitarian organisation, which had in the meantime inquired about their situation, put them in contact with a lawyer. 9. On 25 March the applicants asked the French Office for the Protection of Refugees and Stateless Persons ("the OFPRA") to grant them refugee status pursuant to the Geneva Convention of 28 July 1951. On 31 March the OFPRA ruled that it lacked jurisdiction because the applicants had not obtained a temporary residence permit. 10. On 26 March the applicants applied to the urgent applications judge at the Créteil tribunal de grande instance at short notice seeking an order for their release from confinement at the Hôtel Arcade, which, they asserted, constituted a flagrantly unlawful act ( voie de fait). B. The applicants ’ return to Syria 11. On 29 March at 1.30 p.m., after the Minister of the Interior had refused them leave to enter, the applicants were sent back to Syria, which, according to the Government, had agreed to take them. The other eighteen Somali nationals (see paragraph 7 above), who had not been sent back, were recognised as political refugees by the OFPRA in a decision of 25 June 1992. On 10 June the United Nations High Commissioner for Refugees ("the HCR") sent the Ministry of the Interior the following fax: "The four persons were allowed to re-enter Syrian territorywithout difficulty, the French Embassy having obtained guaranteesto that effect from the relevant Syrian authorities. The four Somali nationals were supposed to get in touch with our officelater for their status to be determined, but to date we haveheard nothing from them. We shall keep you informed of anyfurther developments." Before the Commission the applicants alleged that these guarantees had been given after their expulsion from France. The Government stated at the hearing before the Court that on 29 July 1992 they had received from the HCR a further fax, worded as follows: "The Damascus delegation of the United Nations High Commissionerfor Refugees has just informed us that the four members of theAmuur family had recently been recognised as refugees by the HCR,under paragraph 68 of its Statute ... As Syria grants asylum topersons recognised as refugees by the HCR under its Statute,these Somali nationals were not in danger of being refused entryand sent to their country of origin." C. The order of the Créteil tribunal de grande instance 12. On 31 March the Créteil tribunal de grande instance issued an order under the expedited procedure in which it ruled that the applicants ’ detention was unlawful and directed that they be released. The relevant part of the court ’ s decision reads as follows: "Although the lawfulness of refusals to admit aliens ... cannotbe reviewed by an urgent applications judge, ... the currentdetention by order of the Minister of the Interior on premises which are, moreover, not situated in the international zone, isnot provided for by any legislation, as is indeed implicitlyacknowledged by the Minister of the Interior. Furthermore, under the legislative and constitutional provisionscurrently applicable in France, detention may not be ordered bythe administrative authorities in cases other than those providedfor in Article 35 bis of the 1945 Ordinance, which in any event makes such detention subject to supervision by the ordinary courts. In French law as it stands at present, therefore, and whateverthe factual circumstances surrounding the entry of the aliens concerned, the applicants must be considered to have been arbitrarily deprived of their liberty; it follows that a flagrantly unlawful act is being committed which it is the dutyof the urgent applications judge to bring to an end. The Minister of the Interior is accordingly ordered to release the applicants." No appeal against the above order was lodged by State Counsel ’ s Office. D. The appeal to the Refugee Appeals Board 13. In the meantime, on 30 March, the applicants had appealed to the Refugee Appeals Board. They sought a ruling that the Minister of the Interior ’ s decision refusing them leave to enter French territory and the order that they be sent back to Syria were contrary to section 5 (b) of the Law of 25 July 1952 on the suspensive effect of appeals to the Appeals Board, Article 31 para. 1 of the Geneva Convention, which prohibited the imposition of criminal penalties for the unlawful entry or residence of refugees, and Article 33 para. 1 of the same Convention, which prohibited turning away a refugee to a country where his life would be in peril. 14. On 17 April 1992 the Appeals Board found against the applicants. It ruled that the decisions to remove them from French territory were not incompatible with the rule that appeals had a suspensive effect as the appeal had been lodged after the decisions had been carried out, the applicants had not been prosecuted and the French Government had obtained assurances concerning the applicants ’ life and liberty from the Syrian authorities. III.2.1. Holding in the international zone In practice international zones are to be found mainly at certainports and airports. ... At airports the international zone means the sealed-off area (or one that can be sealed off) used for the arrival of internationalflights and situated between the passengers ’ point of arrival andthe police checkpoints. Alternatively, a hotel situated in the immediate proximity of theport or airport may be used to accommodate aliens refused entryto whom Article 35 bis of the Ordinance of 2 November 1945 hasnot been applied, but transfer thereto shall not be deemed toconstitute entry into the territory. The aliens concerned shallbe informed of the above conditions. ... Where aliens who have been refused leave to enter are held in theinternational zone, the immigration control authorities shallcarry out appropriate surveillance, but this may in nocircumstances take the form of total isolation in a locked room. ... III.2.3. Aliens ’ rights ... Consequently, in all cases, an alien who has been refused entrywill have the possibility, once the relevant decision has beentaken, of informing or sending word to the person living at theaddress to which he has indicated that he intends to travelaccording to the statements recorded at the time of notification,to his consulate or to a lawyer of his own choice. In practice,the services that have refused entry will be responsible forenabling the alien concerned to communicate with the personslisted above. You will therefore allow him access to a telephoneand let him use it to seek the information he may require, itbeing understood that calls outside France will not be permittedand that the conversation must remain reasonable in length. ... III.2.5. Asylum-seekers ... While it is not necessary to describe the procedure forprocessing an application for asylum at the frontier, no orderfor administrative detention may be issued in respect of theperson concerned until a refusal of leave to enter, if there isone, has been served on him. Where an alien declares that he seeks political asylum when hehas already been served with refusal of leave to enter, but hasnot yet entered the territory, the request shall be regarded asan application for asylum at the frontier and brought as soon aspossible to the attention of the Department of Public Freedomsand Legal Affairs which, after investigating the case, will makeknown the decision taken pursuant to the provisions of Article 12of Decree no. 82-442 of 27 May 1982. ..." 2. The Law of 6 September 1991 20. The Law of 6 September 1991 amending the Ordinance of 2 November 1945 on aliens ’ conditions of entry into France and residence there was the first attempt to legislate on the question of transit zones. When the draft version of section 8 of the Law of 6 September 1991 was presented to Parliament, the Minister of the Interior declared: "aliens in that situation are not detained ( retenus ), since they are not on French territory, as they are free to leave at any time" (Official Gazette, 19 December 1991, p. 8256). Section 8 (1) of the Law inserted into the above-mentioned Ordinance an Article 35 quater, which provided: "... an alien who has been refused leave to enter Frenchterritory at an airport or port, or who has sought asylum there,may be held in the transit zone of that airport or port for thetime strictly necessary to arrange his departure or to considerhis application for leave to enter the territory, and for notmore than twenty days. This zone, whose limits shall be laiddown in a decision of the Prefect, shall extend from the pointsof embarkation or disembarkation on French territory to thecheckpoints for persons entering and leaving the territory. Itmay be enlarged to include within its perimeter one or moreplaces of accommodation ... The order to hold in the transitzone shall be made in a reasoned written decision of the head ofimmigration control or an official having the rank of sergeantdesignated by him. This decision shall be entered in a registerrecording the alien ’ s civil status and the holding conditions;... the alien shall be free to leave the transit zone at any timefor any foreign destination of his choice ..." 3. The Constitutional Council ’ s decision of 25 February 1992 21. The Constitutional Council, on an application by the Prime Minister under Article 61 of the Constitution, ruled on 25 February 1992 that section 8 of the Law of 6 September 1991 was unconstitutional for the following reasons: "It should be noted in this connection that holding an alien inthe transit zone under the conditions laid down in Article 35quater (I), inserted in the Ordinance of 2 November 1945 bysection 8 (1) of the referred law, does not entail a degree ofrestriction of movement comparable with that which would result from placing him in a detention centre under Article 35 bis of the Ordinance. However, holding an alien in the transit zone does nevertheless,through the combined effect of the degree of restriction ofmovement it entails and its duration, impinge on the personalliberty of the person concerned within the meaning of Article 66of the Constitution. Although the power to order an alien to beheld may be conferred by law on the administrative authorities,the legislature must make appropriate provision for the courtsto intervene, so that they may carry out their responsibilitiesand exercise the supervisory power conferred on them. Whatever the safeguards under the provisions of Article 35 quateras regards the holding of aliens in the transit zone, thoseprovisions contain no requirement that the courts must interveneto decide whether or not a person should be held for longer, suchas would enable them to determine, on the facts of the case,whether such a measure was necessary. In any event, a personcannot be held for more than a reasonable period. It follows that, as it confers on the administrative authorities the power to hold an alien in the transit zone for a lengthy period, without providing for speedy intervention by the courts,Article 35 quater, as inserted into the Ordinance of 2 November 1945 by section 8 (1) of the referred law, is, as itstands, unconstitutional." 4. The judgment of the Paris tribunal de grande instance of 25 March 1992 22. On 25 March 1992 the Paris tribunal de grande instance, giving judgment in an action for damages brought by three asylum-seekers who had been held in the international zone, in the Hôtel Arcade at Roissy Airport, ruled as follows: "... holding an alien on the premises of the Hôtel Arcade,given the degree of restriction of movement it entails andits duration - which is not laid down by any provision anddepends solely on an administrative decision, without anyjudicial supervision whatsoever - impinges on the libertyof the person concerned. Total deprivation of freedom tocome and go is not necessary for an infringement of thatfreedom to be made out; it is enough if, as in the instantcase, a person ’ s liberty has been seriously restricted asa result of the relevant decision. ... we reject as ill-founded the defendant ’ s submissionthat the complaint of an interference with personal libertyshould be dismissed because the alien was merely preventedfrom entering France, as he was detained in a place whichhad to be regarded as an ‘ extension ’ of the airport ’ sinternational zone. No evidence has been adduced of theexistence of any provision of national or international lawconferring any extraterritorial status on all or part ofthe premises of the Hôtel Arcade - which lies, moreover,outside the airport ’ s perimeter and the area under customscontrol. ... as matters stand, this zone, which is a legal fiction,cannot be exempted from the fundamental principles ofpersonal liberty. ... the indisputable prerogative of the administrativeauthorities, who in the field of immigration control haveexclusive authority to refuse leave to enter Frenchterritory - even, subject to the conditions set out inArticle 12 of the Decree of 27 May 1982, in the case of anapplication for asylum - does not, however, allow theMinister of the Interior to restrict the liberty of analien save in the circumstances and under the conditionsprescribed by law. ... ... under present French legislation on aliens, theadministrative authorities may not temporarily deprive analien of his freedom to come and go except in thecircumstances and in accordance with the procedures laiddown in Article 5 (last paragraph) and Article 35 bis ofthe Ordinance of 2 November 1945. These provisions apply,in particular, to refusal of leave to enter France. Theyfix the maximum period of administrative detention( rétention ) and provide that it cannot be extended beyondtwenty -four hours without the authorisation of thePresident of the tribunal de grande instance. ... in the absence of any specific rules governing the holdingof an asylum-seeker in the international zone for the timestrictly necessary for the administrative authorities to considerwhether his application is admissible, those authorities are not,moreover, entitled to invoke to their advantage a necessary,general right to hold an alien in that supervised zone." State Counsel ’ s Office appealed against the above judgment to the Paris Court of Appeal. However, on 23 September 1992 the case was struck out of the list on the ground that the appellant had not submitted final pleadings within the time-limit. 5. The Law of 6 July 1992 23. Following the above-mentioned decision of the Constitutional Council (see paragraph 21 above), Parliament adopted Law no. 92-625 of 6 July 1992, which was itself amended by Law no. 94-1136 of 27 December 1994. This text, which - like the previous version (see paragraph 20 above) - inserted an Article 35 quater into the Ordinance of 2 November 1945, provides: "I. An alien who arrives in France by rail, sea or air and who(a) is refused leave to enter French territory or (b) applies forasylum may be held in a waiting zone situated at a railwaystation open to international traffic and designated byregulation, a port or an airport, for the time strictly necessaryto arrange his departure and, if he is an asylum-seeker, toinvestigate whether his application is manifestly ill-founded. He shall be informed immediately of his rights and duties, ifnecessary through an interpreter. This shall be recorded in theregister mentioned below, which shall be countersigned by theperson concerned. The limits of the waiting zone shall be laid down by the State ’ srepresentative in the département. It shall extend from thepoints of embarkation or disembarkation to the immigrationcontrol checkpoints. It may include within its perimeter, ornear the station, port or airport, one or more places ofaccommodation providing the aliens concerned with hotel-type services. II. The order to hold in the waiting zone, for a period whichmay not exceed forty-eight hours, shall be made in a reasonedwritten decision of the head of immigration control or anofficial having the rank of sergeant designated by him. This decision shall be entered in a register recording the alien ’ scivil status and the date and time when the decision to hold wasserved on him. State Counsel shall be informed of the decision without delay. It may be renewed under the same conditions andfor the same period. The alien shall be free to leave the waiting zone at any time forany destination situated outside France. He may request theassistance of an interpreter and a doctor and communicate witha lawyer or any person of his choice. III. Holding in the waiting zone after four days have elapsedsince the initial decision may be authorised, by the Presidentof the tribunal de grande instance, or a judge delegated by him,for a period not exceeding eight days. The administrativeauthority shall set out in its application the reasons why it hasnot been possible to repatriate the alien or, if he has appliedfor asylum, to admit him, and the time necessary to ensure hisdeparture from the waiting zone. The President of the tribunalde grande instance or his delegate shall give a ruling in theform of an order, after hearing the person concerned in thepresence of his lawyer, if any, or after the lawyer has been dulyinformed. The alien may request the President or his delegate to assign him a lawyer under the legal-aid scheme. He may alsoask the President or his delegate for the assistance of aninterpreter and for a copy of his file. The President or hisdelegate shall rule at the seat of the tribunal de grande instance, except in the districts designated by decree issuedafter consultation of the Conseil d ’ Etat. In such a case,without prejudice to the application of Article 435 of the New Code of Civil Procedure, he shall give his ruling in public ina hearing room specially created inside the perimeter of the station, port or airport. An appeal shall lie against the order to the President of theCourt of Appeal or his delegate, who must rule on the appeal, forwhich there is no particular required form, within forty- eighthours. Appeals may be lodged by the person concerned, State Counsel ’ s Office and the representative of the State in thedépartement. The appeal shall not have suspensive effect. IV. Exceptionally, holding in the waiting zone may be renewedbeyond twelve days, under the conditions laid down insection III, by the President of the tribunal de grande instanceor his delegate, for a period which he shall determine, which maynot exceed eight days. V. During the whole of the time that the alien is held in thewaiting zone, he shall enjoy the rights set forth in the secondparagraph of section II. State Counsel and, after the first fourdays, the President of the tribunal de grande instance or hisdelegate may visit the waiting zone in order to verify theconditions of his confinement and inspect the register mentionedin section II. The conditions for access to the waiting zone of the delegate ofthe United Nations High Commissioner for Refugees or hisrepresentatives and humanitarian associations shall be laid downin a decree issued after consultation of the Conseil d ’ Etat. VI. Where holding in the waiting zone is not extended beyond thelimit fixed by the last decision to hold, the alien shall beauthorised to enter French territory on an eight-day visa. Hemust have left French territory by the time this limit expires,unless he obtains a provisional residence permit or a receipt fora residence permit application. VII. The provisions of the present Article shall also apply toan alien who is in transit at a station, port or airport, wherethe carrier which was to have conveyed him to his country ofdestination refuses to let him embark or where the authoritiesof the country of destination have refused him leave to enter andhave sent him back to France. VIII. Where the alien ’ s departure from French territory cannotbe arranged from the station, port or airport to which thewaiting zone where he is being held is attached, he may betransferred to a waiting zone attached to any station, port orairport from which he can leave. Where the transfer decision must be taken within four days fromthe initial decision to hold in the waiting zone, it shall betaken under the conditions laid down in section II of the present Article. Where transfer is envisaged after four days have elapsed sincethe initial decision to hold, the administrative authority shallinform the President of the tribunal de grande instance or hisdelegate at the time when it applies to them under the conditionslaid down in sections III and IV of the present Article. In cases where authorisation has been given to prolong or renewholding in the waiting zone, the administrative authority shallinform the President of the tribunal de grande instance or hisdelegate and State Counsel of the necessity of transferring thealien to another waiting zone and carry out that transfer. For the purpose of determining the length of a prolongation orrenewal of holding in the waiting zone, time shall continue torun notwithstanding a transfer of the alien to another waiting zone." More precisely, the law of 27 December 1994 extended and relaxed the rules introduced by the Law of 6 July 1992. The procedure laid down in Article 35 quater of the 1945 Ordinance became applicable to aliens arriving in France by rail. The railway stations concerned, which must be "open to international traffic", are designated by an order of the Minister of the Interior and the limits of waiting zones are laid down by the State ’ s representative in the département. In addition, the waiting zone is no longer defined as a disembarkation and control zone, exceptionally extended to immediately adjacent areas; it can now include, either within the perimeter or close to the station, port or airport, one or more places of accommodation providing aliens with hotel-type services. Moreover, in order to avoid all confusion between waiting zones as provided for in Article 35 quater of the 1945 Ordinance and the administrative detention centres mentioned in Article 35 bis thereof, the Law of 27 December 1994 specifies that the premises used for these two categories must be physically distinct and separate. 6. The Decree of 15 December 1992 24. Decree no. 92-1333 of 15 December 1992 lays down the procedural rules applicable to actions brought in accordance with Article 35 quater of the Ordinance of 2 November 1945 and provides for legal aid for aliens who are the subject of such proceedings. Under this decree authorisation to hold an alien in the waiting zone for more than four or twelve days (see paragraph 23 above) must be sought from the President of the tribunal de grande instance having jurisdiction, in a reasoned application, which must be dated, signed and accompanied by all the relevant documents, from the head of the immigration control service. He must inform the alien of his right to choose a lawyer or have one assigned to him under the legal-aid scheme if the alien so requests. The application and the accompanying documents may be inspected by the alien ’ s lawyer as soon as they are received by the registry. They may also be inspected, before the hearing, by the alien himself, who may be assisted by an interpreter if he does not understand French sufficiently well. 7. The Decree of 2 May 1995 25. Decree no. 95-507 of 2 May 1995 lays down the conditions for access by the HCR delegate or his representatives and by humanitarian associations to the waiting zone of railway stations open to international traffic, ports and airports, as defined by Article 35 quater of the Ordinance of 2 November 1945 (see paragraph 23 above). In particular, it makes provision for representatives of the HCR and humanitarian associations, whose access to the waiting zone is conditional upon individual authorisation by the Minister of the Interior, to hold confidential interviews with the persons held there, and for these representatives and the Minister of the Interior to meet once a year to discuss the way the waiting zones are run. III. WORK DONE BY THE COUNCIL OF EUROPE A. The Parliamentary Assembly ’ s report of 12 September 1991 on the arrival of asylum-seekers at European airports 26. On 12 September 1991 the Parliamentary Assembly of the Council of Europe drew up a report on the arrival of asylum-seekers at European airports. The report, which briefly surveyed the current situation in six large European airports visited by its author, included the following comments about Roissy -Charles-de-Gaulle Airport, Paris : "Asylum-seekers present the request for asylum to border policeand the French Office for the Protection of Refugees andStateless Persons (Office français de protection des réfugiés etapatrides (OFPRA)) decides on the refugee status. Neither interpreters nor legal assistance are available forasylum -seekers immediately after presenting the asylum request:assistance is allowed only after entry into France. Asylum-seekers are detained in a so-called international zone atthe airport, which means that they are not yet on Frenchterritory and the French authorities are therefore not under alegal obligation to examine the request as they would be if arequest was made by someone already on French territory. The international zone has no legal background and must be considered as a device to avoid obligations. During detention, no access to social workers and in fact nocommunication with the outside world exists. Moreover,asylum -seekers do not always have access to telephones. Onpermission from the border police, a chaplain can visitasylum -seekers. No recreational or educational facilities areput at the asylum-seekers ’ disposal. No legal basis for detention exists and a maximum term is notprescribed by law. The French authorities claim thatasylum -seekers stay in this zone for a maximum of one week andthat children are seldom held. Some asylum-seekers have claimed to have spent six weeks waiting for the Ministry of the Interiorto decide whether their application is to be passed on to OFPRAor whether they will be sent back. Asylum-seekers in the international zone sleep on the floor and on the plastic chairs. The airport provides them with meals andthere are a few showers for their use in the middle of the nightwhen they are not being used by others. Due to lack of space at the airport itself, the international zone is extended to one of the floors of the nearby Arcade Hotel." B. Recommendation No. R (94) 5 of the Committee of Ministers on guidelines to inspire practices of the member States of the Council of Europe concerning the arrival of asylum-seekers at airports, of 21 June 1994 27. In a recommendation adopted on 21 June 1994 the Committee of Ministers invited the member States of the Council of Europe to apply the following guidelines: "... Taking into account that the particular position ofasylum -seekers at the airports may entail specific difficulties,linked to the reception itself as well as the handling of their requests; Considering that, without prejudice to other principlesapplicable in this field, guidelines based on the fundamentalprinciples in the field of human rights should inspire thepractices of member states with regard to the protection ofasylum -seekers at airports, and contribute to the development oflegislation and the establishment of an administrativeinfrastructure concerning the reception of asylum-seekers in newhost countries, ... 3. ... each State preserves the possibility of sending anasylum -seeker to a third country subject to respect to theprovisions of the Geneva Convention Relating to the Status ofRefugees, in particular its Article 33, and with respect to theEuropean Convention on Human Rights, in particular its Article 3(art. 3). ... 5. The request shall be examined with all diligence required inorder not to prolong the stay of the applicant at the airportbeyond a period strictly necessary for the handling of such arequest. ... 9. When the asylum-seeker has to stay at the border pending adecision, he or she shall be received and accommodated in anappropriate place, whenever possible provided to that effect. 10. The asylum-seeker can be held in such a place only under theconditions and for the maximum duration provided for by law. ..." C. Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment of 4 June 1992 28. During its visit to France from 27 October to 8 November 1991 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the CPT") visited a number of premises for the detention of aliens, including the border police posts at Roissy -Charles-de-Gaulle Airport and the Hôtel Arcade. In its report, adopted on 4 June 1992, it made the following observations in particular: "However, unlike the position where administrative detention( rétention ) is concerned, there seems to be no legislativeprovision for any judicial supervision or statutory limit on thelength of time spent in the waiting zone in respect of personsrefused entry. ... on 1 October 1991 the Government set up a humanitarian aidbody - the International Migration Office ("the OMI"). The CPT wishes to emphasise how important it is that an effectiveappeal should lie against any refusal of leave to enter,particularly in order to protect the persons concerned againstthe risk of being turned away to a State where there are seriousreasons to believe they might be subjected to ill- treatment.Consequently, the CPT would like to be given information aboutthe possibility of appealing against a refusal of leave to enter.In addition, it would like to have information about the averagelength of time spent on premises where persons refused entry areheld and the exact role of the OMI." 29. On 19 January 1993 the French Government supplied the CPT with the following information: "... 2. The situation of persons refused entry: waiting zones in ports and airports 2.1. The Law of 6 July 1992 on waiting zones in ports andairports (Article 35 quater of the Ordinance of 2 November 1945,as amended, see Appendix 10), as was mentioned in the generalremarks above, laid down very precise conditions for the holdingof an alien refused leave to enter the territory. 2.2. The enactment in question affords aliens a number ofsafeguards concerning (a) the length of time for which persons may be held in the waiting zone: this is strictly supervised by the ordinary courts and may not exceed the "reasonable" time prescribed by law. A court order is needed where a person is to be held for more than four days, and in no circumstances may the twenty-day limit be exceeded. It should be noted in this connection that the original period of twenty days that could elapse before the ordinary courts intervened has been reduced by this Law to four days only. In addition, the total maximum period has been substantially reduced, from thirty days to twenty days; (b) the physical and legal conditions of holding in the waiting zone: holding a person entails a reasoned written decision of the head of immigration control, which must be entered in a register, the immediate notification of State Counsel and, after four days, a decision by the President of the tribunal de grande instance, the right of those two judicial officers to enter the waiting zone, the right to communicate with any person of one ’ s choice, the right to assistance by an interpreter and a lawyer and the right to legal aid. 3. Judicial supervision and the length of time for which a person may be held in the waiting zone 3.1. As mentioned above, after four days a ruling must be givenby an ordinary court. It must reach its decision afterproceedings attended by all the safeguards expressly prescribed by law, and authorisation to hold may not be given for a period exceeding eight days. Exceptionally, the court may renew authorisation for a further eight days. In either case, an appeal against its decision will lie. 3.2. The practical effects of the Law, which came into force on13 July 1992, can already be assessed. At the request of theMinister of the Interior and Public Safety, a large number oforders (nearly forty) demarcating waiting zones have been issuedby the prefects of the départements in which there areinternational ports and airports. 3.3. As regards the time spent in the waiting zone, the twocategories of alien concerned should be distinguished. 3.4. Aliens refused entry and aliens whose journeys have beeninterrupted (no papers): 3.5. Before the Law was passed the time aliens in this categoryspent in the international zone was already less than four days.The general average, which is still less than four days at eachof the checkpoints concerned, is now 1.8 days. 3.6. In that respect the Law on waiting zones has hardlyaffected the length of time spent in them, as time is inevitablyneeded to find a place on a departing plane or ship. ..." | The applicants, Somali nationals – three brothers and a sister – born between 1970 and 1975, arrived in France via Syria in March 1992. They asserted that, after the overthrow of the regime of President Siyad Barr, their lives were in danger in Somalia. They were not admitted onto French territory on the ground that their passports had been falsified. They complained that they had been held in the transit zone at Paris-Orly Airport for 20 days before being sent back to Syria. |
1,018 | Protection of property (Article 1 of Protocol No. 1) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 19... and lives in Budapest. 6. The applicant, civil servant for thirty years, had been in the service of a government ministry. On 27 May 2011 she was dismissed, with effect from 28 July 2011. Her dismissal was part of a wave of similar measures throughout the entire civil service. 7. On dismissal, the applicant was statutorily entitled to two months’ salary for June and July 2011 during which time she was exempted from working. In addition, she was to receive severance pay amounting to eight months’ salary in application of section 19(2) g) of Act no. XXIII of 1992 on the Status of Civil Servants, as well as to an unspecified sum corresponding to unused leave of absence. These benefits – in so far as they did not represent compensation for unused 2011 leave of absence – were subsequently taxed at 98% in their part exceeding 3.5 million Hungarian forints (HUF) [1]. The exceeding part was HUF 2.4 million [2]. This represented an overall tax burden of approximately 52% on the entirety of the severance, as opposed to the general personal income tax rate of 16% in the relevant period. The tax amount in question was never disbursed to the applicant, but was withheld by the employer and directly transferred to the tax authority. | This case concerned a civil servant who complained in particular that the imposition of a 98 per cent tax on part of her severance pay under a legislation entered into force ten weeks before her dismissal had amounted to an unjustified deprivation of property, with no remedy available. |
146 | Violence in school premises | 2. The applicants were born in 1948 and 1976 respectively and live in the village of Alapars. They were granted legal aid and were represented before the Court by Mr A. Zalyan, a lawyer practising in Vanadzor, and Ms J. Evans, Ms J. Gavron, Mr P. Leach and Ms K. Levine, lawyers from the European Human Rights Advocacy Centre in London. 3. The Government were represented by their Agent, Mr G. Kostanyan, and subsequently by Mr Y. Kirakosyan, Representative of the Republic of Armenia before the European Court of Human Rights. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The school incident 5. At the material time Derenik G., aged 10, was a fourth-grade pupil at School No. 5 in Charentsavan (“the school”). According to the applicants, he was in good health. 6. At 9.30 a.m. on 5 June 2010 the second applicant took Derenik G. to school, where a mathematics examination was scheduled to take place at 11 a.m. Before that time the children were to prepare for the examination. 7. The form teacher, S.K., seated the pupils in the classroom and wrote down the assignments on the blackboard. She then left the classroom to have a conversation with A.A., another teacher, who was the mother of one of the pupils. According to the Government, the form teacher left the classroom for only a few minutes. The applicants disagreed that this had been the case. 8. While the form teacher was away, the pupils had a fight, as a result of which Derenik G. was beaten up by two of his classmates, I.H. and V.H., who were brothers. During the fighting, Derenik G. and other pupils screamed loudly. 9. Having heard the noise, the janitor entered the classroom. Thereafter, the form teacher and other teachers came in. They found Derenik G. lying unconscious on the floor. Trying to revive him, they slapped his face, performed artificial respiration, sprinkled water on his face and tried to draw out his tongue. Since Derenik G. did not regain consciousness, they took him into the corridor, where another janitor joined them in their attempts to revive him. As their attempts were unsuccessful, the janitors took Derenik G. out of the school building. After further unsuccessful attempts to bring him back to consciousness, he was taken to hospital. 10. Derenik G. was already dead when he was admitted to hospital. The initial investigation 11. On the same day the police ordered a forensic medical examination to determine the cause of Derenik G.’s death, the existence of any injuries on his body, their location and type, the time and method of their infliction and their gravity. The expert was also asked to determine whether Derenik G. had suffered from any illness while alive and, if so, in what way he had been affected by such illness, and what possible link it might have had with his death. 12. On 12 June 2010 the police took written statements ( բացատրություն ) from A.A. (see paragraph 7 above) and S.A., a military instructor working at the school. In her statement, A.A. mentioned that she had asked S.K. to come out of the classroom into the corridor to talk about her daughter, who was in the same class as Derenik G. While they spoke, she and S.K. had walked to the toilets on the same floor about twenty metres from the classroom. From there, she had gone to the staff room, while S.K. had returned to the classroom. S.A. stated that at around 9.30 a.m. on 5 June 2010, he had been outside the school with A.Av., the sports teacher. Suddenly, they had heard noises coming from the window and ran towards the school entrance. S.A. had then seen A.Av., who had reached the entrance first, carrying Derenik G. out of the school building, together with the janitors. They had laid him down and A.Av. had performed artificial respiration and cardiac massage while S.A. had started rubbing the boy’s feet to try to improve his blood circulation. Seeing that Derenik G. was not regaining consciousness, they had taken him to the school gates to put him in an ambulance. However, because the ambulance had been slow to arrive and in order not to waste time, they had taken Derenik G. to hospital using a van parked nearby. 13. On 6 July 2010 the forensic medical examination was completed. The expert mentioned in his report that since early childhood Derenik G. had received medical assistance on several occasions, mainly for infectious diseases. In June 2009 Derenik G. had been examined by a paediatrician. The parents had informed the paediatrician that the child had lost consciousness for no reason two weeks previously, during a sports class. They had also said that, two years earlier, he had fallen and hit his head at school, as a result of which he had lost consciousness. The paediatrician had referred Derenik G. to a children’s hospital in Yerevan for further examination, where he was eventually diagnosed with syncope (fainting) and active supervision had been recommended. Thereafter the parents had not complained of the child having fainted. The expert concluded that the cause of Derenik G.’s death was acute respiratory failure and acute oxygen deprivation, which were the consequence of a number of changes in his internal organs discovered during the forensic examination and confirmed by the forensic analysis of his tissues. The report stated that he had suffered from severe muscular dystrophy and fatty degeneration of the heart, conditions which were linked to the cause of his death. Furthermore, syncope (fainting) could have been a factor contributing to his death. A haemorrhage in the area of the left temple and cheek was also discovered. It was concluded that this had been caused by a blunt, hard object while he was still alive and was not directly linked to the cause of the death. 14. On 15 July 2010 the first applicant enquired of the Prosecutor General whether criminal proceedings had been instituted in respect of his grandson’s death and asked to be provided with a copy of the relevant decision. He also asked to be involved in the proceedings as his grandson’s legal heir. 15. On 21 July 2010 criminal proceedings were instituted under Article 118 of the Criminal Code in respect of the beating of Derenik G. 16. On 26 July 2010 the first applicant was joined in the proceedings as the victim’s legal heir. 17. On 20 August 2010 the second applicant was questioned by the investigator and stated, inter alia, that her son had been healthy. To the investigator’s question of whether there had been prior incidents of Derenik G. fainting, the second applicant mentioned two such episodes in the past. In reply to the investigator’s question as to whether she had requested Derenik G.’s teachers to be attentive towards him, the second applicant stated that she had never made such a request. 18. In September 2010 the first applicant lodged a complaint with the Prosecutor General, requesting that criminal proceedings be instituted in respect of Derenik G.’s death and not merely in relation to the beating prior to his death. He also complained that the police had not instituted criminal proceedings promptly and had not carried out the necessary investigative measures, such as questioning the witnesses or examining the scene of the incident. 19. On 15 September 2010 the first applicant requested that an additional forensic medical examination be conducted, on the grounds that the expert had not given conclusive answers to the questions asked. In particular, the exact time of the death and of the infliction of injuries and their gravity had not been determined and the connection between Derenik G.’s medical conditions and the cause of death had not been clearly established. In addition, the first applicant had not been provided with the decision to order a forensic medical examination and had not had an opportunity to put questions to the expert. That request was rejected. 20. During the investigation Derenik G.’s parents questioned two of his classmates in connection with the events of 5 June 2010 and recorded their answers. The two pupils questioned mainly confirmed that they had witnessed their classmates, brothers I.H. and V.H., beating up Derenik G. The recordings were submitted to the police. 21. On 8 October 2010 the investigator examined the recordings. 22. On 3 November 2010 the investigator sent a letter to the Chief of the State Education Inspectorate. Referring to the need to ensure a full and objective investigation of the case, he asked the State Education Inspectorate to examine the incident of 5 June 2010 in so far as the actions of the school’s administration and the teaching staff were concerned. 23. By a letter of 15 November 2010, the Chief of the State Education Inspectorate stated that Derenik G.’s death was not attributable to any inaction or omission on the part of the school’s administration or the teaching staff. The letter stated in particular that A.A., not finding it appropriate to have a conversation with S.K. in front of the entire class, had asked the latter to have a word outside the classroom. During S.K.’s absence several pupils, including Derenik G., had had a fight and hit each other. As to the observance of the requirement to ensure the safety of the pupils, point 1(9) of part 3 of the model contract for the provision of free schooling services between a State school and the parent of a pupil, as established by the Order of 26 December 2009 of the Minister of Education and Science (see paragraph 42 below), had been included in the internal rules of conduct of the school and the relevant contract had been signed with the parents of all pupils, including Derenik G.’s parents. The school had been renovated and the necessary conditions for ensuring the safety of the pupils were in place. 24. On 18 November 2010 the criminal proceedings were terminated. According to the police, Derenik G. had been beaten by I.H. and V.H. during a fight while S.K. was away from the classroom. After the fight Derenik G. had approached the blackboard to see more clearly what was written there. Upon returning to his desk, he had suddenly fallen to the floor and lost consciousness. The decision then referred to S.K.’s statement that she had been outside the classroom for only five minutes. It went on to say that I.H. and V.H. could not be prosecuted under Article 118 of the Criminal Code for beating Derenik G., since they had not attained the age of criminal responsibility. 25. On 27 November 2010 the first applicant lodged a complaint with the Prosecutor General against the investigator’s decision to terminate the criminal proceedings. His complaint was rejected. 26. On 7 December 2010 the first applicant lodged a complaint with the Kotayk Regional Court (“the Regional Court”) disputing the decision to terminate the criminal proceedings. He argued, in particular, that Derenik G. had died as a result of a fight among the children while they had been left alone in the classroom without a teacher’s supervision. The administration had not taken any measures to prevent the fight. Also, the police had not instituted separate criminal proceedings in respect of Derenik G.’s death. Although it had been established that Derenik G. had been beaten, the causal link between the beating and his death had not been properly examined. 27. On 18 March 2011 the Regional Court allowed the first applicant’s complaint and set aside the decision of 18 November 2010, finding that the police had failed to investigate a number of issues properly, such as the exact length of time the form teacher had been away from the classroom, the exact time when Derenik G. had been beaten, whether or not a physician had been available at the school at the time of the events, and whether it would have been possible to save his life had he received timely first aid. Also, no expert panel had carried out a forensic examination to find out the reason for the changes to Derenik G.’s internal organs and whether such changes were connected with the blows sustained by him or to determine the period of time between those changes and the time of his death, the type of intervention that would have been necessary to save his life, whether his death could have occurred in other circumstances, how his diseases might have progressed had he lived, and after how long they might have caused his death. 28. On 7 June 2011 the Criminal Court of Appeal, upon an appeal by the prosecutor, fully upheld the Regional Court’s decision. In addition to the findings of the Regional Court, it found that the cause of Derenik G.’s death had not been established in the course of the investigation and that it was still to be determined whether the blows sustained to different parts of his body during the fight were linked to his death or not. Furthermore, the investigator had referred the matter to the State Education Inspectorate instead of making his own legal assessment of the actions of the school’s administration. The further investigation 29. On 7 July 2011 the criminal proceedings were resumed. 30. On 22 July 2011 an additional forensic medical examination by an expert panel was ordered to determine the cause of Derenik G.’s death and the injuries discovered on his body, as well as the types of diseases he had suffered from and whether those diseases were linked to his death. The expert panel was further requested to determine whether Derenik G.’s injuries, if they had resulted from him having been beaten, were directly linked to his death and whether those injuries in any way aggravated, or could have aggravated, the diseases that were directly linked to his death. 31. On 16 November 2011 the additional forensic medical examination was completed. The relevant parts of the report issued by the expert panel read as follows: “... according to the results of the [initial] forensic medical examination of the body, a haemorrhage in the area of the left temple and cheek was discovered which had been caused while [Derenik G.] was still alive by a blunt, hard object, possibly as a result of one or more than one action ... While he was still alive, Derenik G. had suffered from tubular atrophy, mild ... infection of the liver and atrophic changes of the heart muscle which could possibly have progressed during [his] epileptic seizure of 5 June 2010 and its aftermath. The other pathological changes in his internal organs mentioned in [the expert report of 6 July 2010] ... could have developed during the epileptic seizure and upon his death. The medical evidence submitted and the material in the criminal case file [statements of the sport teacher and school janitors] also lead to the conclusion that in 2009 [Derenik G.] had had (two) seizures accompanied by a loss of consciousness, which, however, had not been diagnosed as epileptic seizures ..., having been recorded as syncope (fainting). ... As regards the link between the blows sustained by [Derenik G.], the sudden worsening of his state of health, his loss of consciousness accompanied by a seizure and his death, it should be noted that in view of the above-mentioned pathological changes in his internal organs which occurred while he was alive, the blows coupled with [Derenik G.’s] psychological and emotional state at the given moment could have contributed to the epileptic seizure and to the development of acute respiratory failure and cardiac function disorder connected with [the seizure], which caused [his] death.” 32. On 7 December 2011 the investigator decided to terminate the criminal proceedings. The decision stated, inter alia, that, although the conclusion of the panel of experts had established a causal link between Derenik G.’s death and his beating by I.H. and V.H., his assailants could not be prosecuted for homicide since the element of intention on their part was absent. In any event, I.H. and V.H. had not attained the age of criminal responsibility for any type of crime. The decision further stated that S.K. and the school principal had been unaware of Derenik G.’s epileptic seizures. In those circumstances they had not realised, and could not have realised, the danger inherent in their actions (or inaction). 33. The first applicant disputed the investigator’s decision before the prosecutor, who rejected the complaint. 34. On 9 January 2012 the first applicant lodged a complaint with the Regional Court against the investigator’s decision of 7 December 2011. He argued, in particular, that Derenik G. had died as a result of the failure on the part of the school’s administration to properly implement its duty to protect its pupils. He also complained that no separate criminal proceedings had been instituted in respect of Derenik G.’s death, notwithstanding the fact that the causal link between the beating and his death had been established. 35. On 22 February 2012 the Regional Court granted the first applicant’s complaint and set aside the decision to terminate the criminal proceedings. It referred to its previous decision of 18 March 2011 (see paragraph 27 above) and considered that, following the reopening of the proceedings, the police had still failed to find out whether or not a physician had been available at the school at the time of the incident and whether it would have been possible to save Derenik G.’s life had he received timely first aid. 36. On 1 March 2012 the prosecutor lodged an appeal, stating, in particular, that it had been revealed during the investigation that, in accordance with the relevant order by the director of the Charentsavan Medical Centre, one physician had been put in charge of the school in question and one other State school in Charentsavan. On the day of the events, in accordance with the schedule, the physician had been on duty at the other school. 37. On 3 April 2012 the Criminal Court of Appeal granted the prosecutor’s appeal and quashed the Regional Court’s decision of 22 February 2012. It found, inter alia, that the police had not addressed the question of whether it would have been possible to save Derenik G.’s life had he received timely first aid from a physician for objective reasons, given the fact that on 5 June 2010 the latter had been on duty at the other school. 38. On 3 May 2012 the first applicant lodged an appeal on points of law. He argued in detail that an effective investigation had not been carried out, mainly because the police had failed to take the necessary steps to find those responsible for Derenik G.’s death. He reiterated his previous arguments in relation to the fact that no separate criminal proceedings had been instituted in respect of Derenik G.’s death, although it had been established that the cause of the latter’s death was the beating by his classmates. 39. On 8 June 2012 the Court of Cassation declared the first applicant’s appeal inadmissible for lack of merit. | This case concerned the death of the applicants’ grandson and son respectively, at the age of ten in 2010 following a fight in the classroom in his school. It also concerned the subsequent investigation and legal proceedings. The applicants claimed, in particular, that the boy’s death had been a result of a failure by the school authorities to protect him while under their control and that the subsequent investigation had been ineffective. |
563 | Placement of Roma gypsy children in “special” schools | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants are of Romani origin and live with their families on the area of Psari, near Aspropyrgos, a municipality in the western part of the Attica region. A. The steps taken by the applicants to register their children for the 2004-2005 school year 6. On 24 June 2004, the Minister Delegate of Health, accompanied by the Secretary General of his ministry, visited the Roma camp in Psari. He had been informed, among other things, of the non- education of Romani children. On 2 August, the representatives of “European Roma Rights Centre” and of “Greek Helsinki Monitor” met with the Minister Delegate for National Education and Religious Affairs. Following this meeting, the Minister Delegate published a press release highlighting, among other things, the importance of integrating Romani children into the national education process. 7. The 2004-2005 school year began on 10 September 2004. On 17 September 2004, the Secretary of the Department of Education of Expatriate Greeks and Intercultural Education visited the Roma camps in Psari, in the company of two representatives of the Greek Helsinki Monitor, to register all the Romani children of schooling age. To this end, they visited the two primary schools of the municipality (the 10 th and 22th primary schools of Aspropyrgos). The respective school directors encouraged Romani parents to enrol their children in primary school. The Greek Helsinki Monitor subsequently informed the competent authorities of the Ministry of Education and Religious Affairs, who gave no follow-up. 8. The applicants confirm that on 21 September 2004, they visited the premises of the Aspropyrgos primary schools, with other Romani parents, to register their children. The directors of two schools had refused to enrol their children on the grounds that they had not received instructions to this effect from the relevant ministry. They had informed the parents concerned that upon receipt of the necessary instructions, they would invite them to complete the necessary formalities. Never afterwards were the parents invited to register their children. 9. According to the document no. Φ20.3/747 delivered on 5 June 2007 by the First Bureau of Primary Education in West Attica, at the request of the State Legal Council, the applicants presented themselves to the director of the 10 th primary school of Aspropyrgos to gather information on registering their children. The director reportedly showed them the documents necessary to register their children. According to the same documents, on 23 September 2004, the Departmental Director of Education of the Attica region convened an informal meeting with the competent authorities of the municipality of Aspropyrgos to address the problem of additional enrolment of students of Romani origin and the capacity of Aspropyrgos ’ primary schools. On one hand, it was decided that the students who had reached the age of first schooling would be accommodated into the existing premises of the 10 th and 11 th primary schools in Aspropyrgos. On the other hand, the meeting considered that integration of children who had reached an age higher than that of preliminary education into normal classes would be detrimental from a psychopedagogical point of view: the difference of age would not permit them to have an effective schooling. On this basis, the informal meeting decided to provide two additional preparatory classes in preparation for the integration of these students into ordinary classes. 10. On 13 and 18 September and on 2 October 2004, the Greek Helsinki Monitor referred to the Ombudsman of the Republic on behalf of the applicants of three applications concerning the difficulties of Romani children ’ s access to primary education for Romani children, inviting him to intervene. On 3 January 2005, the Ombudsman replied in writing that three representatives of his cabinet had, on an unspecified date, visited the Roma camp in Psari. In his response, the Ombudsman noted that there was not, on the part of the competent services, any systematic and unjustified refusal to enrol children of Romani origin in primary education. He noted that he had already informed teachers at Aspropyrgos ’ primary schools that domestic legislation provided for the possibility to enrol children in primary school with the simple declaration of those bearing parental authority, provided that they submit birth certificates in due course. The Ombudsman also referred to the conclusions of several meetings with the leaders of the municipality of Aspropyrgos and, more specifically, to their intention to build a separate building from the school closest to the Roma camp to accommodate the older Romani children in view of bringing them up to standard. The Ombudsman mentioned lastly the tensions that existed between the population of Aspropyrgos, composed mainly of those repatriated from states of the former Soviet Union, and the Romani minority, as an additional element preventing the integration of Romani children into the educational environment. 11. On the 1 October 2004, the Minister Delegate for National Education and Religious Affairs asked the company responsible for operating state real estate to grant some public land with two prefabricated cells to serve as classrooms for Romani children. On an unspecified date, the Minister rejected the request. 12. According to the Government, in November and December 2004 a delegation from teachers of primary schools no. 10 and 11 visited the Roma Camp in Psari in order to inform and convince the parents and their children, who were minors, of the necessity to enrol their children in preparatory classes. This approach would be in vain, the parents concerned not having registered their children for the current school year. 13. On 13 February 2005, the Association for the Coordination of Organisations and Communities for the Human Rights of Roma in Greece (SOKARDE) addressed an official letter to the Board of Directors of Primary Education of West Attica in which it requested information about the schooling of the Roma in Aspropyrgos. 14. On 17 February 2005, the Board of Directors replied that the case had experienced delays attributable to the Ministry of the Environment: it had been slow to resolve the issue of granting public land on which to construct rooms and prefabricated classrooms. The Board of Directors expressed its intention to make every effort to implement the enrolling of Romani children in primary school the following year. B. The registration of Romani children for the 2005-2006 school year 15. On 24 May 2005, SOKARDE sent a letter to the Minister Delegate of National Education and Religious Affairs stressing the need to take all of the necessary measures to assure the successful schooling of Romani children for the 2005-2006 school year. 16. A letter dated 1 July 2005 to SOKARDE states that the school authorities took various steps to inform Aspropyrgos ’ Romani families of the necessity of enrolling their children in primary school: radio messages, advertisements on the school walls informing Roma that they could register their children between 1 and 21 June 2005 and sending letters to interested parties on this subject. 17. On 9 June 2005, at the initiative of SOKARDE, twenty-three children of Romani origin, including the children of the applicants, were enrolled in the Aspropyrgos primary school for the 2005-2006 school year. According to the Government, the number of Romani children who were enrolled was fifty-four. C. Incidents against Romani children in September and October 2005 18. On 12 September 2005, the first day of the school year, the Romani parents, including the parents, accompanied their children to school. In front of the entrance, several non- Romani parents, most of them of Pontic origin, that is to say from the region of Pont-Euxin, on the southern shores of the Black Sea, were gathered, harassing people of Romani origin. They shouted, “There is not a single Roma child who will go to school. You will not have access here, that ’ s all.” Then, non- Romani parents blocked access to the school until Romani children were transferred to another building. 19. On 12 October 2005, the non- Romani parents blocked access to the school again. They hung a sign: “The school will remain closed because of the Gypsy problem; Wednesday 12.10.05”. 20. On 13 October, Romani children tried to access the school. They were once more confronted by a group of non- Romani parents. In particular, the president of the association showed, on camera of a television channel that had visited the scene, the medical files of children of Romani origin in order to prove that they had been inadequately vaccinated. Finally, with the assistance of the police, who had gone there, the Romani children were able to access the school. 21. As part of the judicial investigation of this incident, the police officer D.T. made a statement with the following passage: “On 13 September 2005, around 9.10, around two hundred parents of students of Greek Pontic origin protested outside schools against the schooling of children of Romani origin at the primary school ( ... ). A confrontation was avoided thanks to the prompt intervention of the police of Aspropyrgos ( ... ). On 15 and 16 September 2005, the association of parents organised a boycott of student participation in class. From the first day of the incidents, police were posted outside the school to secure the entry and exit of Romani students. On 10 October 2005, the association of parents blocked access to the school as a protest against the afternoon welcoming of Romani students in the same rooms which welcomed the other students in the morning. On 11 and 12 October, in the presence of police, students of Romani origin had access to classes without difficulty. On 13 October 2005, fifty to sixty non- Romani parents gathered to protest against the presence of Romani students and to encircle the school ’ s entrance in order to prevent access ( ... )”. 22. By a letter, dated 1 March 2006, the West Attica Police Board informed the Greek Helsinki Monitor that on 13, 14, 15, 16 and 19 September 2005 and on 10, 11, 12, 13, 17, 19, 21, 25, 26, 27, and 31 October 2005, police forces had been sent to the 10 th and 11 th primary schools in order to maintain order and to prevent illegal acts committed against Romani students. 23. As of 31 October 2005, the applicants ’ children were educated in a separate building from the main primary school of Aspropyrgos and the non- Romani parents stopped blocking the school. D. The schooling of the applicants ’ children 24. Under Act No. 39/ 20.9.2005 of the Peripheral Council for Primary Education, three preparatory classes were created to meet the educational needs of Romani children; the classes of one took place in the morning while the other two took place after 15.30. The Peripheral Council indicated that the Romani students of all ages who were confronted with problems pertaining to their learning capacity could take special preparatory classes, the aim being to allow their integration without hindrance into ordinary classes. 25. On 25 October 2005, the applicants signed a statement written by the teachers of Aspropyrgos School expressing their wish to have their children transferred to the building separate from the primary school. The applicants allege that they had signed the statement in question under pressure from the Minister of Education, non- Romani parents, and certain leaders of the Roma community. 26. On 31 May 2007, the first applicant swore in the Elefsina District Court that he would have preferred for his students to attend regular classes rather than special school. He clarified, however, that it was difficult for him to maintain this position when the integrity of his children was endangered by furious non- Romani residents and that the teachers indirectly encouraged him to consent to his children ’ s schooling in the “ghetto school”. 27. In the meantime, under Act No. 261/22.12.2005, the Prefect of Attica had decided that three classes of primary school No. 10 in Aspropyrgos would be accommodated in prefabricated rooms installed on land owned by the municipality of Aspropyrgos. 28. On 17 March 2006, the West Attica Primary Education Directorate sent a letter to the Ministry of National Education and Religious Affairs. She informed the Ministry that for the 2005-2006 school year, fifty-two new students of Romani origin had been enrolled in the 10 th primary school of Aspropyrgos. She noted that “ due to the lack of space in the main school building of the school, and with the parents ’ agreement, pupils of Romani origin had been accommodated in an annex located near the Roma camp”. 29. On 20 June 2006, the third constituency of the West Attica Primary Education Council sent a letter to the director of the outskirts of Attica. She informed him that for the 2005-2006 school year, fifty-four students of Roma origin had been enrolled in the 10 th primary school of Aspropyrgos. She stated that “preparatory classes [were] provided for the Romani students, in order to assure their adaptation to the schooling environment, given the deficiencies from which they suffered and various other reasons making it impossible for them to integrate into ordinary classes.” She added that “despite the progress made by Romani students in the preparatory classes, all of these students are not yet fit to integrate into ordinary classes.” 30. On 5 April 2007, prefabricated rooms of the 10 th primary school were set on fire by unknown people. It appears from the file that in September 2007, the two rooms were replaced but because of infrastructure problems, they were not operational. In September 2007, a 12 th primary school was created in Aspropyrgos, to which Romani children were transferred. The record shows that in October 2007, this school was not yet operational, because of the infrastructure problems. The Government alleges that the establishment of the 12 th primary school in Aspropyrgos was intended only to relieve congestion at the 10 th primary school. I. Structures 1. Educational policies for Romani /Gypsy children should be accompanied by the necessary means and flexible structures to reflect the diversity of the Roma/Gypsy population in Europe and to take into account Roma/Gypsy groups ’ itinerant or semi-itinerant way of life. In this respect, the use of a system of education at a distance, based on new communication technologies, could be considered. 2. Emphasis should be placed on better coordination at international, national, regional and local levels in order to avoid dispersion of efforts and to promote synergies. 3. Member states should, in this regard, make the Ministries of Education sensitive to the question of Romani /Gypsy children ’ s education. 4. Pre-school education should be widely developed and made accessible to Romani /Gypsy children, in order to ensure their access to schooling and education. 5. Special attention should also be paid to better communication with and between parents by using, when appropriate, mediators from the Roma/Gypsy community who would have the opportunity to access a specific professional career. Special information and advice would be provided to parents on the necessity for education and the support mechanisms that municipalities can offer to families. The exclusion and lack of knowledge and education (or even illiteracy) of parents also prevent children from benefiting from the education system. 6. Adequate support structures should be put in place to enable Romani /Gypsy children to benefit from equal opportunities in school, including through positive action. 7. Member states are invited to provide the necessary means to implement the aforementioned policies and measures in order to bridge the gap between Romani /Gypsy schoolchildren and those belonging to the majority population. II. School programmes and teaching materials 8. Educational measures for Romani /Gypsy children should be part of a wider intercultural policies and take into account the characteristics of Romanini culture and the disadvantaged position of many Roma/Gypsies in the Member States. 9. School curricula, as a whole, and teaching materials should be designed in a manner to respect the cultural identity of Romani /Gypsy children. The history and culture of the Roma should therefore be introduced in the educational materials in order to reflect the cultural identity of Romani /Gypsy children. The participation of representatives from Roma/Gypsy communities in the development of material on Roma/Gypsy history, culture, and language should be encouraged. 10. Member states should, however, ensure that these practices not lead to separate school curricula that can lead to creating separate classes. 11. Member states should equally encourage the development of educational materials based on examples of successful action in order to assist teachers in their daily work with Romani /Gypsy children. 12. In countries where the Romani language is spoken, Romani /Gypsy children should be offered the opportunity to take classes in their mother tongue. III. Recruitment and teacher training 13. Provision should be made for the introduction of specific education in programs preparing future teachers so that they can acquire the knowledge and training to better understand Romani /Gypsy schoolchildren. However, the education of Romani /Gypsy schoolchildren should remain and integral part of the overall education system. 14. The Roma/Gypsy community should be involved in the development of these programs and should be able to directly communicate this information to future teachers. 15. Recruitment and training of teachers from the Roma/Gypsy community should also be promoted ( ... )”. 2. The Parliamentary Assembly a) Recommendation No. 1203 (1993) on Gypsies in Europe 39. The general comments in this recommendation include: “One of the aims of the Council of Europe is to promote the formation of a true European cultural identity. Europe is home to many different cultures, all of which, including multiple minority cultures, contribute to its cultural diversity. Gypsies hold a special place among minorities. Living dispersed throughout Europe, unable to claim a country for their own, they constitute a true European minority who do not correspond to the definitions applicable to national or linguistic minorities. As a non-territorial minority, Gypsies contribute significantly to Europe ’ s cultural diversity, in multiple respects, be it through language and music or in their artisanal activities. Following the admission of new Member States from central and eastern Europe, the number of Gypsies living in the Council of Europe area has considerably increased. Intolerance towards Gypsies has always existed. However, outbreaks of racial or social hatred are occurring more and more regularly and strained relations between communities have contributed to creating the deplorable situation in which the majority of Gypsies live today. Respect for the rights of Gypsies, whether for their fundamental human rights, or their rights as a minority, is an essential condition for improving their situation. By guaranteeing equal rights, opportunities, and treatment, and by taking steps to improve the situation of Gypsies, it will be possible to revive their language and culture, thereby enriching European cultural diversity. It is important to guarantee to Gypsies the enjoyment of rights and liberties defined in Article 14 of the European Convention of Human Rights, as this enables them to assert their rights ( ... ).” 40. Concerning the area of education, the recommendation states: “existing European teacher training programs for Gypsies should be expanded; Special attention should be paid to the education of women in general and mothers with their young children; Gifted young Gypsies should be encouraged to study and act as intermediaries for Gypsies; ( ... ).” b) Recommendation No. 1557 (2002) on the legal situation of Roma in Europe 41. This recommendation states in particular : “ (...) 3. Today, Roma are still subject to discrimination, marginalisation and segregation. Discrimination is widespread in all areas of public and private life, including access to public service, education, employment, heath services and housing, as well as to crossing borders and access to asylum procedures. Economic and social marginalisation and segregation of Roma are turning into ethnic discrimination, which generally affects the most vulnerable groups in society. 4. Roma constitute a special group, minority for twofold reason: ethnically minority, they also very often belong to the socially disadvantaged strata of society ( ... ). 15. The Council of Europe can and must play an important role in improving the legal status of Roma, the level of equality they enjoy, and their living conditions. The Assembly calls on Member States to fulfil the following six general conditions, which are necessary to improve the situation of the Roma in Europe: ( ... ) c) guarantee equality of treatment of the Roma minority as an ethnic or national minority group or in the fields of education, employment, housing, health and public services. Member States should pay special attention: ( ... ) ii. to give Roma the opportunity to integrate into all educational structures, from kindergarten to university; iii. to develop positive measures to recruit Roma in public services of direct interest to Roma communities, such as primary and secondary schools, social welfare centres, local primary health care centres and local governments; iv. to eliminate any practice tending towards school segregation of Romani children, in particular the practice of referring them to schools or classes reserved for students with mental disabilities; d) to develop and implement positive action and preferential treatment for the socially disadvantaged classes, including the Roma, as a socially disadvantaged community, in the fields of education, employment, and housing ( ... ); e) to take specific measures and to create special institutions for the protection of Romani language, culture, traditions and identity; ( ... ) ii. to encourage Romani parents to send their children to primary and secondary school, and institutions of higher education and to correctly inform them of the importance of education; ( ... ) v. recruit Romani teachers, especially in areas where the Roma population is considerable; f) to combat racism, xenophobia, and intolerance, and to ensure non-discriminatory treatment towards Roma on local, regional, national and international levels: ( ... ) vi. to pay particular attention to phenomena of discrimination against the Roma, particularly in the fields of education and employment; ( ... ).” 3. The European Commission against Racism and Intolerance (ECRI) a) ECRI ’ s General Policy Recommendation No. 3: Combating racism and intolerance against Roma / Gypsies (adopted by ECRI on 6 March 1998) 42. The relevant portions of this recommendation read as follows: “The European Commission against Racism and Intolerance: (...) Recalling that the fight against racism, xenophobia, anti-Semitism and intolerance is an integral part of the protection and promotion of human rights, and that these rights are universal and indivisible, and are the rights of all human beings, without distinction of any kind; Stressing that the fight against racism, xenophobia, anti-Semitism and intolerance is aimed above all at protecting the rights of vulnerable members of society; Convinced that any action against racism and discrimination should begin from the point of view of the victim and seek to improve his or her situation; Noting that Roma/Gypsies throughout Europe today suffer from persistent prejudices against them, are victims of racism deeply rooted in society, are the target of demonstrations, sometimes violent, of racism and intolerance, and that their human rights are regularly violated are threatened; Noting further that the persistent prejudices towards Roma/Gypsies drive discrimination against them in many areas of social and economic life, and that this discrimination significantly fuels the process of social exclusion from which Roma and Gypsy people suffer; Convinced that the promotion of the principle of tolerance is a guarantee of the maintenance of open and pluralistic societies, making peaceful coexistence possible; Recommends to the governments of the member states the following: (...) – To ensure that discrimination as such as well as discriminatory practices are combatted by means of adequate legislation and to ensure that specific provisions are included in civil law, in particular in the areas of employment, housing and education; (...) – To fight vigorously all forms of school segregation of Roma and Gypsy children and to ensure effectively equal access to education; ( ... ).” b) ECRI ’ s General Policy Recommendation No. 7 on national legislation to combat racism and racial discrimination (Adopted by ECRI on 13 December 2002) 43. For the purposes of this recommendation, the following definitions apply: “ a) “ racism” the belief that grounds such as race, colour, language, religion, nationality or ethnic or national origin justifies contempt towards a person or group of people, or the idea of one ’ s superiority or of a group of people b) “ direct racial discrimination” means any difference of treatment based on grounds such as race, colour, language, religion, nationality or national or ethnic origin, which lacks reasonable or objective justification. A difference of treatment lacks reasonable and objective justification if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim pursued. c) “indirect racial discrimination” means the case where an apparently neutral factor such as a provision, criterion or practice cannot be so easily respected by persons belonging to a group distinguished by grounds such as race, colour, language, religion, nationality or national or ethnic origin, or disadvantages these persons, unless this factor has an objective and reasonable justification. This is so if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the intended purpose. 44. In the explanatory memorandum to this recommendation, it is noted (point 8) that the definitions of these concepts of direct and indirect discrimination contained in paragraph 1(b) and 9c) of the recommendation are based on those contained in Council Directive 2000/43/EC of the Council on the implementation of the principle of equal treatment between persons irrespective of racial or ethnic origin, and Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, as well as the case-law of the European Court of Human Rights. c) ECRI ’ s report on Greece made public on 8 June 2004 45. ECRI recalls in its report from 8 June 2004 that in its previous report it had drawn the attention of Greek authorities to the situation of the Roma, in particular to the problems of eviction from their homes and of discrimination in access to public services and underlined the importance of overcoming local resistant to initiatives in favour of Roma. 46. After having expressed its concern, ECRI considers in its report from 8 June 2004 that, since the adoption of its second report on Greece, the situation of Roma in Greece has not fundamentally changed and that in general they experience the same difficulties – including discrimination – in housing, employment, education, and access to public services. 4. The Commissioner for Human Rights The final report by Mr Alvaro Gil-Robles on the human rights situation of Roma, Sinti and Travelers in Europe (dated 15 February 2006) 47. In the third part of this report, dedicated to discrimination within education, the Commissioner observes that if a significant number of Romani children do not have access to quality education equal to that offered to other children, it is also because of discriminatory practices and prejudices. In this respect, he notes that segregation within the education system is a common characteristic of many member States of the Council of Europe. In some countries, there are isolated schools in isolated camps, in others special classes for Romani children in ordinary schools, or a clear overrepresentation of Romani children in classes for children with special needs. It is frequent that Romani children are placed in classes for children with special needs, without adequate psychological or pedagogical evaluation, the real criteria being their ethnicity. Placement in special schools or classes means that these children often have a less ambitious curriculum than those in normal classes, which reduces their educational prospects and hence their chances of finding a job at a later stage. Automatic placement of Romani children in classes for children with special needs specifically reinforces social stigma by labelling Romani children as less intelligent and less capable. At the same time, segregated education deprives Romani children and non- Romani children of the opportunity to know each other and to learn to live as equal citizens. It excludes Romani children from normal society from a very early age, increasing the risk of them being caught in the vicious cycle of marginalisation. 48. In conclusion, the Commissioner makes a number of recommendations in the area of education. According to him, when segregation in education still exists in one form or another, it must be replaced by an ordinary integrated education and, if necessary, prohibited by legislation. Adequate resources should be allocated to pre-school education, language training, and the training of school assistants to ensure the success of desegregation efforts. Then, an adequate assessment should be made before placing children in special classes, so that the only criteria for placement are the objective needs of the child and not his or her ethnicity.” | This case concerned the authorities’ failure to provide schooling for the applicants’ children during the 2004-2005 school year and their subsequent placement in special classes, in an annexe to the main Aspropyrgos primary school building, a measure which the applicants claimed was related to their Roma origin. |
476 | Internet | I. THE CIRCUMSTANCES OF THE CASE 10. The applicant company is a public limited liability company ( aktsiaselts ), registered in Estonia. A. Background to the case 11. The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia, and also operates in Latvia and Lithuania. 12. At the material time, at the end of the body of the news articles there were the words “ add your comment ” and fields for comments, the commenter ’ s name and his or her e-mail address (optional). Below these fields there were buttons labelled “ publish the comment ” and “ read comments ”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “ read comments ” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers ’ comments daily, the majority posted under pseudonyms. 13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (Estonian for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, comments that included certain stems of obscene words were automatically deleted. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately. 14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi ’ s website there were Rules on posting comments which included the following. “ The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit the comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ... Delfi prohibits comments whose content does not comply with good practice. These are comments that – contain threats; – contain insults; – incite hostility and violence; – incite illegal activities ... – contain off-topic links, spam or advertisements; – are without substance and/or off topic; – contain obscene expressions and vulgarities ... Delfi reserves the right to remove such comments and restrict their authors ’ access to the writing of comments ... ” The functioning of the notice-and-take-down system was also explained in the Rules on posting comments. 15. The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about the incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure freedom of expression as well as the protection of everyone ’ s honour and good name, including sections 1043 and 1046 of the Obligations Act ( Võlaõigusseadus ). B. Article and comments published on the Internet news portal 16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “ SLK Destroyed Planned Ice Road ”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “ SLK ” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. At the material time, L. was a member of the supervisory board of SLK and the company ’ s sole or majority shareholder. 17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed at L. 18. On 9 March 2006 L. ’ s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments. “ 1. ( 1) there are currents in [V]äinameri (2) open water is closer to the places you referred to, and the ice is thinner. Proposal – let ’ s do the same as in 1905, let ’ s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag 2. bloody shitheads... they ’re loaded anyway thanks to that monopoly and State subsidies and have now started to worry that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew! 3. good that [La. ’ s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven! 4. [ little L.] go and drown yourself 5. aha ... [I] hardly believe that that happened by accident... assholes fck 6. rascal !!! [ in Russian] 7. What are you whining for, knock this bastard down once and for all[ .] In future the other ones ... will know what they risk, even they will only have one little life. 8. ... is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn ’ t he. 9. “ a good man lives a long time, a shitty man a day or two ” 10. If there was an ice road, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will cross [the strait] anyway and if I drown, it ’ s your fault 11. and can ’ t anyone stand up to these shits? 12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope. 13. wonder whether [L.] won ’ t be knocked down in Saaremaa? screwing one ’ s own folk like that. 14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this. Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the State is powerless towards them – it is really them who govern the State), because they only live for today. Tomorrow, the flood. 15. this [V.] will one day get hit with a cake by me. damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that ... a pig is going to be slaughtered. no way 16. bastards !!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!! 17. Estonian State, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas ... and this cannot at all be compared to a ram ’ s Michaelmas. [1] Actually feel sorry for [L.] – he’s a human, after all ... :D :D :D 18. ... if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed ... will he [then] dare to act like a pig for the third time? :) 19. fucking bastard, that [L.]... could have gone home with my baby soon ... anyway his company cannot guarantee a normal ferry service and the prices are such that ... real creep ... a question arises whose pockets and mouths he has filled up with money so that he ’ s acting like a pig from year to year 20. you can ’ t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the State and [L.] do not care about the people ’ s opinion) ... just for fun, with no greed for money – I pee into [L. ’ s] ear and then I also shit onto his head. :) ” 19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company. 20. On 23 March 2006 the applicant company responded to the request from L. ’ s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages. C. Civil proceedings against the applicant company 21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company. 22. At the hearing of 28 May 2007, the representatives of the applicant company submitted, inter alia, that in cases like that concerning the “ Bronze Night ” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, on its own initiative. 23. By a judgment of 25 June 2007, L. ’ s claim was dismissed. The County Court found that the applicant company ’ s liability was excluded under the Information Society Services Act ( Infoühiskonna teenuse seadus ), which was based on Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ( Directive on electronic commerce ). The court considered that the comments section on the applicant company ’ s news portal was to be distinguished from its journalistic section. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them. 24. On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company ’ s liability was excluded under the Information Society Services Act. The County Court ’ s judgment was quashed and the case was referred back to the first-instance court for fresh consideration. 25. On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company. 26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal ’ s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had indicated on its website that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments. 27. The County Court found that the news article itself published on the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory, and impaired L. ’ s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L. ’ s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage. 28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court ’ s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims. 29. The Court of Appeal rejected the applicant company ’ s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to post comments. Thus, the applicant company was a provider of content services rather than of technical services. 30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal ’ s judgment in substance, but partly modified its reasoning. 31. The Supreme Court held as follows. “ 10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal ’ s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure. 11. The parties do not dispute the following circumstances: (a) on 24 January 2006 the defendant ’ s Internet portal ‘ Delfi ’ published an article entitled ‘ SLK Destroyed Planned Ice Road ’; (b) the defendant provided visitors to the Internet portal with the opportunity to comment on articles; (c) of the comments published [ avaldatud [2] ] on the aforementioned article, twenty contain content which is derogatory towards the plaintiff [L.]; (d) the defendant removed the derogatory comments after the plaintiff ’ s letter of 9 March 2006. 12. The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the content of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful content. 13. The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act]. According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to this provision, ‘ information society services ’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service. Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: ( a ) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; ( b ) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider ’ s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the content of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information. Since the Information Society Services Act is based on Directive 200 0 /31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by Recital 42 of the preamble to the Directive, according to which the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘ content services ’ who have control over the content of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive. The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments [ hinnangud ] and opinions (comments). In the comments section, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant ’ s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the author of the comments does not mean that the defendant has no control over the comments section. The defendant sets out the rules for the comments section and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant ’ s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not lead to the conclusion that the publishing of comments is not under the defendant ’ s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comments section, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case. 14. It is not disputed that the defendant is the publisher of an article entitled ‘ SLK Destroyed Planned Ice Road ’, published on the Delfi Internet portal on 24 January 2006. The County Court also found that the defendant must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the authors of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the authors of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant [Delfi]. The Chamber has explained the definitions of “ disclosure ” and “ discloser ” in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [ avaldamine ] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [ avaldamine ] of information in the media, the discloser/publisher [ avaldaja ] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ ajakirjanduslik tegevus ]. At the same time, because of the nature of Internet media [ internetiajakirjandus ], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [ trükiajakirjanduse väljaanne ]. While the publisher [ ( väljaandja ) of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [ väljaandja ] of printed media and an Internet portal operator are publishers/disclosers [ avaldajad ] as entrepreneurs. In cases concerning a value judgment [ väärtushinnang ] that prejudices and denigrates a person ’ s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning ... Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of the Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [ hinnangud ] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public). 15. In reply to the allegations in the defendant ’ s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following. The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone ’ s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person ’ s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person ’ s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person ’ s honour and good name. In the interests of the protection of a person ’ s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff ’ s honour was not justified and was therefore unlawful; as there was no discussion of the [news] topic in the comments, the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Obligations Act is interpreted in conformity with the Constitution, injuring a person ’ s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats. The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the authors of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1 )( 4) of the Obligations Act). 16. According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments ... are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant ’ s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless. On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful content. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person ’ s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant ’ s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [ süü ] (section 1050(1) of the Obligations Act). ” D. Subsequent developments 32. On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the Rules on posting comments. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the Rules on posting comments was monitored as well. According to the information published, the number of comments posted by Delfi ’ s readers in August 2009 had been 190,000. Delfi ’ s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The percentage of defamatory comments had been less than 0.5% of the total number of comments. | This was the first case in which the Court had been called upon to examine a complaint about liability for user-generated comments on an Internet news portal. The applicant company, which runs a news portal run on a commercial basis, complained that it had been held liable by the national courts for the offensive comments posted by its readers below one of its online news articles about a ferry company. At the request of the lawyers of the owner of the ferry company, the applicant company removed the offensive comments about six weeks after their publication. |
1,032 | Alleged risk of treatment contrary to Article 3 if a deportation order was to be enforced | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1942 and lives in Espoo. A. Applicant ’ s account of her circumstances in Russia 7. The applicant had a husband and two daughters in Russia. In 1988 one of the daughters moved to Finland and has lived there permanently since then. She is a Finnish citizen. The other daughter went missing in 2003 and is probably dead. The applicant raised her granddaughter, who was born in 1986, from the age of 3 or 4, when the child ’ s mother went missing. 8. In November 2006 the applicant suffered a stroke in Russia. Apparently her right side was then paralysed. At the time, she lived with her husband, until he died in 2007. Thereafter the applicant apparently lived with her granddaughter and her family near Vyborg. 9. On 7 December 2008 the applicant arrived in Finland with a tourist visa issued for a period of 30 days, without having lodged a prior application for a residence permit at a Finnish Representation. Since then she has been living with her daughter in Espoo. B. The proceedings in Finland 10. On 17 December 2008 the applicant applied for a residence permit on the basis of family ties to her daughter. 11. On 31 July 2009 the Finnish Immigration Service ( Maahanmuuttovirasto, Migrationsverket ) refused the applicant a residence permit and ordered her removal to Russia. 12. The applicant appealed to the Helsinki Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ), presenting new medical evidence about her state of health. 13. On 8 April 2010 the Helsinki Administrative Court quashed the Immigration Service ’ s decision and referred the case back to it for re ‑ examination as new evidence had been presented in the matter on which it could not take a stand as a first instance. 14. On 29 April 2010 the Immigration Service again refused the applicant a residence permit and ordered her removal to Russia. It found that, according to the domestic law, the applicant was not entitled to a residence permit on the basis of family ties as she was not a family member (a spouse or a minor child) of a person living in Finland. Other relatives than family members were issued a residence permit only in exceptional circumstances, mainly if the purpose was to continue close family life in Finland or if the relative was completely dependent on a Finnish citizen living in Finland. The applicant and her daughter had not had any family life since 1988 when the daughter had moved to Finland. A residence permit could not be granted on the basis of health reasons either. It did not appear that the applicant could not receive proper medical treatment or care in Russia. The applicant ’ s age, her state of health and the fact that her relative lived in Finland were not sufficient reasons to issue her a residence permit. 15. The applicant appealed to the Helsinki Administrative Court, requesting that the Immigration Service ’ s decision be quashed. She claimed, inter alia, that she had not received proper treatment in Russia and that such treatment could not be provided. She had no relatives in Russia who could take care of her. This meant that she would have to be put in a nursing home, the standard of which was generally poor in Russia. Her daughter could not move back to Russia either as she would have to leave her job in Finland and take her daughter with her. It was not even certain that they would be issued a residence permit in Russia. The applicant ’ s mental condition was such that she could not endure removal and separation from her daughter. Separation would lead to her death either through sickness or suicide. 16. On 27 May 2010 the Helsinki Administrative Court ordered a stay on removal for the duration of the proceedings before it. 17. On 16 September 2011 the Helsinki Administrative Court rejected the applicant ’ s appeal. In its reasons the court noted that the essential question was whether the applicant was completely dependent on her daughter who lives in Finland. The applicant ’ s state of physical and mental health was attested by proper medical certificates. However, it was not shown that the applicant could not receive proper medical treatment or care in Russia, in her own language. The applicant was thus not completely dependent on her daughter in Finland, nor did she have any close ties to Finland. The applicant had close ties to Russia where she could also receive treatment. The fact that treatment would be more expensive there was not a ground to grant a residence permit. The applicant ’ s daughter could help her financially and could also visit her in Russia. 18. The applicant appealed to the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ), requesting that she be granted leave to appeal and that the court order a stay on removal. 19. No stay on removal was ordered by the Supreme Administrative Court. 20. On 14 June 2012 the Supreme Administrative Court refused the applicant leave to appeal. | This case concerned the threatened removal from Finland of a 72-year-old Russian national. She claimed that she would not have access to medical care in Russia, it being impossible for her to obtain a place in a nursing home there, and because she would be separated from her daughter, a Finnish national. |
339 | Freedom of assembly (Article 11) | Circumstances of the present application 2. The applicant was born in 1967 and lives in Santovenia de Pisuerga. The applicant was represented by Mr J.A. Blanco Rodríguez, later replaced by Ms C. López Cedrón, lawyers practising in Valladolid. 3. The Government were represented by their Agent, Mr R.A. León Cavero, State Attorney. 4. On Sunday 2 February 2014 the applicant took part in a demonstration in Valladolid against budgetary cuts and high unemployment rates, among other social issues. The protest was organised by an association in favour of unemployed people’s rights (Asociación [emailprotected] en movimiento Valladolid). 5. The authorities had been notified in advance of the demonstration as required by Spanish legislation. The organisers themselves had requested the public-security resources needed to regulate road traffic and guarantee the proper progression of the demonstration. 6. The protest proceeded without incident until its official end. After that, a group of around fifty to sixty protesters continued marching in the streets of Valladolid city centre, mostly through pedestrian streets, and moved towards a square, Plaza de San Lorenzo. This protest was spontaneous and the authorities had not been informed of it. 7. On that same day, a political party was holding a congress in Valladolid. Some politicians were having lunch in a restaurant located in Plaza de San Lorenzo when the group of protesters gathered in the square. 8. The protesters stood in front of the restaurant holding a placard which read “stop the criminalisation of social protest” ( paremos la criminalización de la protesta social ) and denounced cases of corruption. 9. Immediately after the protesters stopped their march and stood in Plaza de San Lorenzo, the police approached them and asked the protesters to remove the placard they were displaying and to peacefully dissolve the protest and allow traffic to pass as normal. 10. Several police vans were parked in the roadways adjacent to the square. The police officers approached the protesters on foot. They were not wearing body armour or protective helmets, but they carried truncheons and their service pistols. They tried to remove the placard and held some of the protesters and pushed them away from the group in an attempt to dissolve the demonstration. 11. The protesters did not approach the entrance to the restaurant or enter its premises. 12. The protesters refused to put down the placard; the police then forced them to do so. They were forcefully separated, some of them tried to resist, and tension escalated. Some of the police officers’ interventions included pushing protesters to the ground, hitting protesters with truncheons, or kicking them, even when they were already lying on the ground. 13. One of the protesters tried unsuccessfully to take an officer’s gun out of its holster. He was subdued by the officer and arrested. Two other protesters were arrested for violent conduct or threats. A fourth protester’s arrest was ordered but he managed to escape from the police. Two police officers were also injured. 14. The applicant was not among the protesters who were arrested. She was holding the placard in the first line of the demonstration when she was struck violently by a police officer. The applicant suffered injuries to her mouth and her hand. She claimed that while protecting her head with her hand, her hand had been hit with a truncheon, which in turn had caused her to injure her mouth. She was taken to hospital for medical care. According to the medical report, she had suffered a direct trauma to her left hand, and had an open cut, bruises, a fracture and inflammation in her head. 15. According to a medical report issued on 3 June 2014 by the Institute of Legal Medicine of Valladolid, the applicant’s injuries had taken ninety days to heal, during which time she was not able to perform her usual activities. Another report, issued later, stated that the applicant’s injuries had completely impeded her return to her usual activities. On 15 February 2016 the applicant was given the status of “permanently incapacitated to perform her usual activities” as a consequence of her injuries. 16. According to the police report, the protesters repeatedly tried to enter the restaurant and succeeded in interrupting the traffic in the square. It noted furthermore that the applicant had been among the six protesters who had had to be taken to hospital for treatment of injuries. 17. On 22 February 2014 criminal proceedings were brought before Valladolid investigating judge no. 4 against ten police officers for causing bodily harm and against some of the protesters for disobedience, resisting police officers and assault. The applicant appeared before the investigating judge on 4 April 2014 to give a statement as a witness and victim. Criminal proceedings against police officers – the present application 18. On 23 and 31 May 2016 investigating judge no. 4 provisionally discharged ( sobreseimiento provisional ) the police officers under investigation and decided to continue the proceedings against four of the protesters ( auto de continuación del procedimiento por los trámites del procedimiento abreviado ). On 21 November 2016, after the charges had been presented by the public prosecutor, investigating judge no. 4 decided to address proceedings against four protesters (other than the applicant) and send them to the competent criminal judge for them to be examined on the merits ( auto de apertura del juicio oral ). 19. The defendants lodged appeals against the decisions of 23 and 31 May 2016 with the Audiencia Provincial of Valladolid. On 17 October 2016 the Audiencia Provincial confirmed the dismissal of the proceedings against the policemen. The Audiencia Provincial of Valladolid stated that the police intervention had been justified “not because the protesters [had] tried to enter [the restaurant], for which there [was] no evidence, but because the protesters [had been] holding a placard with which they [had] occupied a public road, preventing the movement of vehicles and people .... everything [had been] due to a police response to a situation of violence and disorder generated by people who [had] refused to abide by police orders to dissolve the demonstration and remove the placard ... [the individuals had refused to] identify themselves properly, kicked, struggled, insulted and pushed the police officers, who had had to repel that action, resulting in injuries on both sides. What differentiate[d] one action from another, obviously, [was] that the police [had] acted legitimately, while the demonstrators [had] opposed the actions of the police in an active and violent manner”. 20. On 15 November 2016 the applicant lodged an amparo appeal. She argued that her right to a fair trial had been violated by the refusal of the investigating judge and the Audiencia Provincial to further enquire into the alleged offences committed by the police officers against her and other protesters. She also claimed that her rights to freedom of thought, of expression and of assembly and association had been violated. 21. On 22 February 2017 the Constitutional Court declared the appeal inadmissible as the applicant had not duly complied with the obligation to prove that her appeal was one of “special constitutional relevance”. Other relevant facts that took place after the lodging of the present applicationCriminal proceedings against protesters Criminal proceedings against protesters Criminal proceedings against protesters 22. On 19 April 2019, a hearing was held before Valladolid criminal judge no. 3 against three of the accused protesters (no information has been submitted about why the case against the fourth protester was not heard on the same day). By a judgment of 20 April 2018 given by the same judge, the three protesters were acquitted (two of them because the public prosecutor had withdrawn the charges against them, and the third one because no evidence had been found incriminating him). 23. The judgment stated that “the events [had taken] place when the police [had] tried to take the placard away from those holding it ... it [could] be seen [in the footage] that police officers were kicking people”. The judge found that the attitude and behaviour of the protesters had not justified the indiscriminate use of force by the police against them. The judge furthermore pointed out that the protesters had not impeded the movement of traffic, threatened anyone or tried to enter the restaurant, and they had not attacked the police officers. He stated that “the right to freedom of assembly [had been] violated when the only response after the [end of the official demonstration] ... [had been] to use force even when there [had] been no danger to the physical integrity of the people inside the restaurant”. In his view, the protest had been violently dispersed without any prior warning to dissolve the demonstration or to put down the placard. 24. No criminal proceedings were ever initiated against the applicant. Administrative proceedings and judicial administrative proceedings for compensation for the injuries suffered. 25. On 16 January 2017, the applicant brought an administrative claim against the Ministry of the Interior for liability for the injuries suffered. It was rejected in a decision of the Ministry of Interior dated 28 August 2017. 26. The applicant then appealed to the Audiencia Nacional. In a judgment of 27 March 2019, the Audiencia Nacional found that the State was liable for the conduct of the police agents who had intervened in the dispersal of the protest, that the police intervention had been disproportionate in its response to the group of protesters and in view of the force used against the applicant, and that the applicant had no legal duty to bear the damage caused to her purely because she had taken part in the protest. Among other evidence such as videos provided and the statements of two witnesses, the Audiencia Nacional took into account the judgment of 20 April 2018 given by Valladolid criminal judge no. 3 and reproduced that text in full. The administration was ordered to pay to the applicant 10,000 euros. The amount was fixed by the Audiencia Nacional taking into account the standard harmonised amounts for redress established as guidelines for cases such as the present one in domestic legislation, the seriousness of the injuries, the number of days needed to heal, the damage to her appearance and the sequelae. | The applicant in this case, who had taken part in a demonstration against budgetary cuts and high unemployment rates, in Valladolid, in February 2014, complained that she had been left permanently injured after the police forcefully dispersed a spontaneous gathering that had taken place after the official demonstration. She alleged that the police’s use of force against her and other protesters had been grossly disproportionate. |
23 | Affiliation- and inheritance-related rights | A. Particular circumstances of the case 8. Alexandra Marckx was born on 16 October 1973 at Wilrijk, near Antwerp; she is the daughter of Paula Marckx, a Belgian national, who is unmarried and a journalist by profession. Paula Marckx duly reported Alexandra ’ s birth to the Wilrijk registration officer who informed the District Judge ( juge de paix ) as is required by Article 57 bis of the Belgian Civil Code ("the Civil Code") in the case of "illegitimate" children. 9. On 26 October 1973, the District Judge of the first district of Antwerp summoned Paula Marckx to appear before him (Article 405) so as to obtain from her the information required to make arrangements for Alexandra ’ s guardianship; at the same time, he informed her of the methods available for recognising her daughter and of the consequences in law of any such recognition (see paragraph 14 below). He also drew her attention to certain provisions of the Civil Code, including Article 756 which concerns "exceptional" forms of inheritance (successions" irrégulières "). 10. On 29 October 1973, Paula Marckx recognised her child in accordance with Article 334 of the Code. She thereby automatically became Alexandra ’ s guardian (Article 396 bis); the family council, on which the sister and certain other relatives of Paula Marckx sat under the chairmanship of the District Judge, was empowered to take in Alexandra ’ s interests various measures provided for by law. 11. On 30 October 1974, Paula Marckx adopted her daughter pursuant to Article 349 of the Civil Code. The procedure, which was that laid down by Articles 350 to 356, entailed certain enquiries and involved some expenses. It concluded on 18 April 1975 with a judgment confirming the adoption, the effect whereof was retroactive to the date of the instrument of adoption, namely 30 October 1974. 12. At the time of her application to the Commission, Ms. Paula Marckx ’ s family included, besides Alexandra, her own mother, Mrs. Victorine Libot, who died in August 1974, and a sister, Mrs. Blanche Marckx. 13. The applicants complain of the Civil Code provisions on the manner of establishing the maternal affiliation of an "illegitimate" child and on the effects of establishing such affiliation as regards both the extent of the child ’ s family relationships and the patrimonial rights of the child and of his mother. The applicants also put in issue the necessity for the mother to adopt the child if she wishes to increase his rights. B. Current law 1. Establishment of the maternal affiliation of an "illegitimate" child 14. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth: whilst the birth certificate recorded at the registry office suffices to prove the maternal affiliation of a married woman ’ s children (Article 319 of the Civil Code), the maternal affiliation of an "illegitimate" child is established by means either of a voluntary recognition by the mother or of legal proceedings taken for the purpose (action en recherche de maternité ). Nevertheless, an unrecognised "illegitimate" child bears his mother ’ s name which must appear on the birth certificate (Article 57). The appointment of his guardian is a matter for the family council which is presided over by the District Judge. Under Article 334, recognition, "if not inserted in the birth certificate, shall be effected by a formal deed". Recognition is declaratory and not attributive: it does not create but records the child ’ s status and is retroactive to the date of birth. However, it does not necessarily follow that the person effecting recognition is actually the child ’ s mother; on the contrary, any interested party may claim that the recognition does not correspond to the truth (Article 339). Many unmarried mothers - about 25 % according to the Government, although the applicants consider this an exaggerated figure - do not recognise their child. Proceedings to establish maternal affiliation (action en recherche de maternité ) may be instituted by the child within five years from his attainment of majority or, whilst he is still a minor, by his legal representative with the consent of the family council (Articles 341a-341c of the Civil Code). 2. Effects of the establishment of maternal affiliation 15. The establishment of the maternal affiliation of an "illegitimate" child has limited effects as regards both the extent of his family relationships and the rights of the child and his mother in the matter of inheritance on intestacy and voluntary dispositions. a. The extent of family relationships 16. In the context of the maternal affiliation of an "illegitimate" child, Belgian legislation does not employ the concepts of "family" and "relative". Even once such affiliation has been established, it in principle creates a legal bond with the mother alone. The child does not become a member of his mother ’ s family. The law excludes it from that family as regards inheritance rights on intestacy (see paragraph 17 below). Furthermore, if the child ’ s parents are dead or under an incapacity, he cannot marry, before attaining the age of twenty-one, without consent which has to be given by his guardian (Article 159 of the Civil Code) and not, as is the case for a "legitimate" child, by his grandparents (Article 150); the law does not expressly create any maintenance obligations, etc., between the child and his grandparents. However, certain texts make provision for exceptions, for example as regards the impediments to marriage (Articles 161 and 162). According to a judgment of 22 September 1966 of the Belgian Court of Cassation (Pasicrisie I, 1967, pp 78-79), these texts "place the bonds existing between an illegitimate child and his grandparents on a legal footing based on the affection, respect and devotion that are the consequence of consanguinity ... (which) creates an obligation for the ascendants to take an interest in their descendants and, as a corollary, gives them the right, whenever this is not excluded by the law, to know and protect them and exercise over them the influence dictated by affection and devotion". The Court of Cassation deduced from this that grandparents were entitled to a right of access to the child. (b) Rights of a child born out of wedlock and of his mother in the matter of inheritance on intestacy and voluntary dispositions 17. A recognised "illegitimate" child ’ s rights of inheritance on intestacy are less than those of a "legitimate" child. As appears from Articles 338, 724, 756 to 758, 760, 761, 769 to 773 and 913 of the Civil Code, a recognised "illegitimate" child does not have, in the estate of his parent who dies intestate, the status of heir but solely that of "exceptional heir" (" successeur irrégulier "): he has to seek a court order putting him in possession of the estate (envoi en possession). He is the sole beneficiary of his deceased mother ’ s estate only if she leaves no relatives entitled to inherit (Article 758); otherwise, its maximum entitlement - which arises when his mother leaves no descendants, ascendants, brothers or sisters – is three-quarters of the share which he would have taken if "legitimate" (Article 757). Furthermore, his mother may, during her lifetime, reduce that entitlement by one-half. Finally, Article 756 denies to the "illegitimate" child any rights on intestacy in the estates of his mother ’ s relatives. 18. Recognised "illegitimate" children are also at a disadvantage as regards voluntary dispositions, since Article 908 provides that they "may receive by disposition inter vivos or by will no more than their entitlement under the title ‘ Inheritance on Intestacy ’ ". Conversely, the mother of such a child, unless she has no relatives entitled to inherit, may give in her lifetime or bequeath to him only part of her property. On the other hand, if the child ’ s affiliation has not been established, the mother may so give or bequeath to him the whole of her property, provided that there are no heirs entitled to a reserved portion of her estate ( héritiers réservataires ). The mother is thus faced with the following alternative: either she recognises the child and loses the possibility of leaving all her estate to him; or she renounces establishing with him a family relationship in the eyes of the law, in order to retain the possibility of leaving all her estate to him just as she might to a stranger. 3. Adoption of "illegitimate" children by their mother 19. If the mother of a recognised" illegitimate" child remains unmarried, she has but one means of improving his status, namely, "simple" adoption. In such cases, the age requirements for this form of adoption are eased by Article 345 para. 2, sub-paragraph 2, of the Civil Code. The adopted child acquires over the adopter ’ s estate the rights of a "legitimate" child but, unlike the latter, has no rights on intestacy in the estates of his mother ’ s relatives (Article 365). Only legitimation (Articles 331-33 3) and legitimation by adoption (Articles 368-370) place an "illegitimate" child on exactly the same footing as a "legitimate" child; both of these measures presuppose the mother ’ s marriage. C. The Bill submitted to the Senate on 15 February 1978 20. Belgium has signed, but not yet ratified, the Brussels Convention of 12 September 1962 on the Establishment of Maternal Affiliation of Natural Children, which was prepared by the International Commission on Civil Status and entered into force on 23 April 1964. Neither has Belgium yet ratified, nor even signed, the Convention of 15 October 1975 on the Legal Status of Children born out of Wedlock, which was concluded within the Council of Europe and entered into force on 11 August 1978. Both of these instruments are based on the principle "mater semper certa est"; the second of them also regulates such questions as maintenance obligations, parental authority and rights of succession. 21. However, the Belgian Government submitted to the Senate on 15 February 1978 a Bill to which they referred the Court in their memorial of 3 July 1978 and subsequently at the hearings on 24 October. The official statement of reasons accompanying the Bill, which mentions, inter alia, the Conventions of 1962 and 1975 cited above, states that the Bill "seeks to institute equality in law between all children". In particular, maternal affiliation would be established on the mother ’ s name being entered on the birth certificate, which would introduce into Belgian law the principle "mater semper certa est". Recognition by an unmarried mother would accordingly no longer be necessary, unless there were no such entry. Furthermore, the Civil Code would confer on children born out of wedlock rights identical to those presently enjoyed by children born in wedlock in the matter of inheritance on intestacy and voluntary dispositions. | An unmarried Belgian mother complained that she and her daughter were denied rights accorded to married mothers and their children: among other things, she had to recognise her child (or bring legal proceedings) to establish affiliation (married mothers could rely on the birth certificate); recognition restricted her ability to bequeath property to her child and did not create a legal bond between the child and mother’s family, her grandmother and aunt. Only by marrying and then adopting her own daughter (or going through a legitimation process) would she have ensured that she had the same rights as a legitimate child. |
1,023 | Information on the measures taken and reasons given | I 1. The purpose of the Commission's request - to which is appended the Report drawn up by the Commission in accordance with the provisions of Article 31 (art. 31) of the Convention - is to submit the case of G.R. Lawless to the Court so that it may decide whether or not the facts of the case disclose that the Irish Government has failed in its obligations under the Convention. As appears from the Commission's request and from its Memorial, G.R. Lawless alleges in his Application that, in his case, the Convention has been violated by the authorities of the Republic of Ireland, inasmuch as, in pursuance of an Order made by the Minister of Justice under section 4 of Act No. 2 of 1940 amending the Offences against the State Act, 1939, he was detained without trial, between 13th July and 11th December 1957, in a military detention camp situated in the territory of the Republic of Ireland. 2. The facts of the case, as they appear from the Report of the Commission, the memorials, evidence and documents laid before the Court and the statements made by the Commission and by the Irish Government during the oral hearings before the Court, are in substance as follows: 3. G.R. Lawless is a builder's labourer, born in 1936. He is ordinarily resident in Dublin ( Ireland ). 4. G.R. Lawless admitted before the Commission that he had become a member of the IRA ("Irish Republican Army") in January 1956. According to his own statements, he left the IRA in June 1956 and a splinter group of the IRA in December 1956. II 5. Under the Treaty establishing the Irish Free State, signed on 6th December 1921 between the United Kingdom and the Irish Free State, six counties situated in the North of the Island of Ireland remained under British sovereignty. 6. On several occasions since the foundation of the Irish Free State, armed groups, calling themselves the "Irish Republican Army" (IRA), have been formed, for the avowed purpose of carrying out acts of violence to put an end to British sovereignty in Northern Ireland. At times the activities of these groups have been such that effective repression by the ordinary process of law was not possible. From time to time, the legislature has, therefore, conferred upon the Government special powers deal with the situation created by these unlawful activities; and such powers have sometimes included the power of detention without trial. On 29th December 1937 the Constitution at present in force in the Irish Republic was promulgated. In May 1938 all persons detained for political offences were released. When the political situation in Europe foreshadowed war, the IRA resumed its activities and committed fresh acts of violence. At the beginning of 1939 the IRA published documents described by it as a "declaration of war on Great Britain ". Following that declaration, the IRA, operating from territory of the Republic of Ireland, intensified its acts of violence on British territory. 7. In order to meet the situation created by the activities of the IRA, the Parliament of the Republic of Ireland passed the Offences against the State Act, 1939, which came into force on 14th June 1939. III 8. Part II of the 1939 Act defines the "activities prejudicial to the preservation of public peace and order or to the security of the State". Part III contains provisions relating to organisations whose activities come under the Act and any which may therefore be declared an "unlawful organisation" by order of the Government. Section 21 of the 1939 Act provides as follows: Section 21: "(1) It shall not be lawful for any person to be a member of an unlawful organisation; (2) Every person who is a member of an unlawful organisation in contravention of this section shall be guilty of an offence under this section and shall: (a) on summary conviction thereof, be liable to a fine not exceeding fifty pounds, or at the discretion of the court, to imprisonment for a term not exceeding three months or to both such fine and such imprisonment; or (b) on conviction thereof on indictment, be liable to imprisonment for a term not exceeding two years." Part IV of the 1939 Act contains various provisions relating to the repression of unlawful activities, including, in section 30, the following provision relating to the arrest and detention of persons suspected of being concerned in unlawful activities: Section 30: "(1) A member of the Gárda Síochána (if he is not in uniform on production of his identity card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act, or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid. (2) Any member of the Gárda Síochána (if he is not in uniform on production of his identity card if demanded) may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant. (3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Gárda Síochána station, a prison, or some other convenient place for a period of twenty-four, hours from the time of his arrest and may, if an officer of the Gárda Síochána not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours. (4) A person detained under the next preceding sub-section of this section may, at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence, or be released by direction of an officer of the Gárda Síochána, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub-section. (5) A member of the Gárda Síochána may do all or any of the following things in respect of a person detained under this section, that is to say: (a) demand of such person his name and address; (b) search such person or cause him to be searched; (c) photograph such person or cause him to be photographed; (d) take, or cause to be taken, the fingerprints of such person. (6) Every person who shall obstruct or impede the exercise in respect of him by a member of the Gárda Síochána of any of the powers conferred by the next preceding sub-section of this section or shall fail or refuse to give his name and address or shall give, in response to any such demand, a name or an address which is false or misleading shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months." Part V of the 1939 Act is concerned with the establishment of "Special Criminal Courts" to try persons charged with offences under the Act. Lastly, Part VI of the 1939 Act contained provisions authorising any Minister of State - once the Government had brought that Part of the Act into force - to order, in certain circumstances, the arrest and detention of any person whom he was satisfied was engaged in activities declared unlawful by the Act. 9. On 23rd June 1939, i.e. nine days after the entry into force of the Offences Against the State Act, the Government made an order under section 19 of the Act that the IRA, declared an "unlawful organisation", be dissolved. 10. About 70 persons were subsequently arrested and detained under Part VI of the Act. One of those persons brought an action in the High Court of Ireland, challenging the validity of his detention. The High Court declared the detention illegal and ordered the release of the person concerned by writ of habeas corpus. The Government had all the persons detained under the same clauses released forthwith. 11. Taking note of the High Court's judgment, the Government tabled in Parliament a Bill to amend Part VI of the Offences against the State Act, 1939. The Bill, after being declared constitutional by the Supreme Court, was passed by Parliament on 9th February 1940, becoming the Offences against the State (Amendment) Act, 1940 (No. 2 of 1940). This Act No. 2 of 1940 confers on Ministers of State special powers of detention without trial, "if and whenever and so often as the Government makes and publishes a proclamation declaring that the powers conferred by this Part of this Act are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this Act should come into force immediately" (section 3, sub-section (2) of the Act). Under section 3, sub-section (4) of the Act, however, a Government proclamation bringing into force the special powers of detention may be annulled at any time by a simple resolution of the Lower House of the Irish Parliament. Moreover, under section 9 of the Act both Houses of Parliament must be kept fully informed, at regular intervals, of the manner in which the powers of detention have been exercised. 12. The powers of detention referred to in the Act are vested in Ministers of State. Section 4 of the Act provides as follows: "(1) Whenever a Minister of State is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section. (2) Any member of the Gárda Síochána may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section. (3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens. (4) Whenever a person is detained under this section, there shall be furnished to such person, as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act, a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act". 13. Under section 8 of the Offences against the State (Amendment) Act, 1940, the Government is required to set up, as soon as conveniently may be after the entry into force of the powers of detention without trial, a Commission (hereinafter referred to as "Detention Commission") to which any person arrested or detained under the Act may apply, through the Government, to have his case considered. The Commission is to consist of three persons, appointed by the Government, one to be a commissioned officer of the Defence Forces with not less than seven years'service and each of the others to be a barrister or solicitor of not less than seven years'standing or a judge or former judge of one of the ordinary courts. Lastly, section 8 of the Act provides that, if the Commission reports that no reasonable grounds exist for the continued detention of the person concerned, such person shall, with all convenient speed, be released. IV 14. After several years during which there was very little IRA activity, there was a renewed outbreak in 1954 and again in the second half of 1956. In the second half of December 1956 armed attacks were made on a number of Northern Ireland police barracks and at the end of the month a policeman was killed. In the same month a police patrol on border roads was fired on, trees were felled across roads and telephone wires cut, etc. In January 1957 there were more incidents of the same kind. At the beginning of the month there was an armed attack on Brookeborough Police Barracks during which two of the assailants were killed; both of them came from the 26-county area. Twelve others, of whom four were wounded, fled across the border and were arrested by the police of the Republic of Ireland. Thereupon, the Prime Minister of the Republic of Ireland, in a public broadcast address on 6th January 1957, made a pressing appeal to the public to put an end to these attacks. Six days after this broadcast, namely, on 12th January 1957, the IRA carried out an armed raid on an explosives store in the territory of the Republic of Ireland, situated at Moortown, County Dublin, for the purpose of stealing explosives. On 6th May 1957, armed groups entered an explosives store at Swan Laois, held up the watchman and stole a quantity of explosives. On 18th April 1957, the main railway line from Dublin to Belfast was closed by an explosion which caused extensive damage to the railway bridge at Ayallogue in County Armagh, about 5 miles on the northern side of the border. During the night of 25th-26th April, three explosions between Lurgan and Portadown, in Northern Ireland, also damaged the same railway line. On the night of 3rd/4th July a Northern Ireland police patrol on duty a short distance from the border was ambushed. One policeman was shot dead and another injured. At the scene of the ambush 87 sticks of gelignite were found to have been placed on the road and covered with stones, with wires leading to a detonator. This incident occurred only eight days before the annual Orange Processions which are widespread throughout Northern Ireland on 12th July. In the past, this date has been particularly critical for the maintenance of peace and public order. V 15. The special powers of arrest and detention conferred upon the Ministers of State by the 1940 (Amendment) Act were brought into force on 8th July 1957 by a Proclamation of the Irish Government published in the Official Gazette on 5th July 1957. On 16th July 1957, the Government set up the Detention Commission provided for in section 8 of that Act and appointed as members of that Commission an officer of Defence Forces, a judge and a district Justice. 16. The Proclamation by which the Irish Government brought into force on 8th July 1957 the special powers of detention provided for in Part II of the 1940 Act (No. 2) read as follows: "The Government, in exercise of the powers conferred on them by sub-section (2) of section 3 of the Offences against the State (Amendment) Act, 1940, (No. 2 of 1940), hereby declare that the powers conferred by Part II of the said Act are necessary to secure the preservation of public peace and order and that it is expedient that the said part of the said Act should come into force immediately." 17. By letter of 20th July 1957 the Irish Minister for External Affairs informed the Secretary-General of the Council of Europe that Part II of the Offences against the State Act, 1940 (No. 2) had come into force on 8th July 1957. Paragraph 2 of that letter read as follows: "... Insofar as the bringing into operation of Part II of the Act, which confers special powers of arrest and detention, may involve any derogation from the obligations imposed by the Convention for the Protection of Human Rights and Fundamental Freedoms, I have the honour to request you to be good enough to regard this letter as informing you accordingly, in compliance with Article 15 (3) (art. 15-3) of the Convention." The letter pointed out that the detention of persons under the Act was considered necessary "to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution." The Secretary-General's attention was called to section 8 of the Act which provides for the establishment of a Commission to which any detained person can appeal. This Commission was set up on 16th July 1957. 18. Soon after the publication of the Proclamation of 5th July 1957 bringing into force the powers of detention provided for under the 1940 Act, the Prime Minister of the Government of the Republic of Ireland announced that the Government would release any person held under that Act who undertook "to respect the Constitution and the laws of Ireland" and "to refrain from being a member of or assisting any organisation declared unlawful under the Offences against the State Act, 1939". VI 19. G.R. Lawless was first arrested with three other men on 21st September 1956 in a disused barn at Keshcarrigan, County Leitrim. The police discovered in the barn a Thompson machine-gun, six army rifles, six sporting guns, a revolver, an automatic pistol and 400 magazines. Lawless admitted that he was a member of the IRA and that he had taken part in an armed raid when guns and revolvers had been stolen. He was subsequently charged on 18th October with unlawful possession of firearms under the Firearms Act, 1935 and under Section 21 of the Offences against the State Act, 1939. G.R. Lawless, together with the other accused, was sent forward for trial to the Dublin Circuit Criminal Court. On 23rd November 1956, they were acquitted of the charge of unlawful possession of arms. The trial judge had directed the jury that the requirements for proving the accussed's guilt had not been satisfied in that it not been conclusively shown that no competent authority had issued a firearm certificate authorising him to be in possession of the arms concerned. At the hearing before this Court on 26th October, the District Justice asked one of the accused, Sean Geraghty, whether he wished to put any questions to any of the policemen present. Sean Geraghty replied as follows: "As a soldier of the Irish Republican Army and as leader of these men, I do not wish to have any part in proceedings in this Court." When asked by the Justice whether he pleaded guilty or not guilty to the charge, he again said: "On behalf of my comrades and myself I wish to state that any arms and ammunition found on us were to be used against the British Forces of occupation to bring about the re-unification of our country and no Irishman or woman of any political persuasion had anything to fear from us. We hold that it is legal to possess arms and also believe it is the duty of every Irishman to bear arms in defence of his country." Subsequently, G.R. Lawless in reply to a question by the Justice said: "Sean Geraghty spoke for me." Lawless was again arrested in Dublin on 14th May 1957 under section 30 of the 1939 Act, on suspicion of engaging in unlawful activities. A sketch map for an attack of certain frontier posts between the Irish Republic and Northern Ireland was found on him bearing the inscription "Infiltrate, annihilate and destroy." On the same day his house was searched by the police who found a manuscript document on guerrilla warfare containing, inter alia, the following statements: "The resistance movement is the armed vanguard of the Irish people fighting for the freedom of Ireland. The strength of the movement consists in the popular patriotic character of the movement. The basic mission of local resistance units are the destruction of enemy installations and establishments that is TA halls, special huts, BA recruiting offices, border huts, depots, etc. Attacks against enemy aerodromes and the destruction of aircraft hangars, depots of bombs and fuel, the killing of key flying personnel and mechanics, the killing or capture of high-ranking enemy officers and high officials of the enemy's colonial Government and traitors to our country in their pay, that is, British officers, police agents, touts, judges, high members of the Quisling party, etc." After being arrested, G.R. Lawless was charged: (a) with possession of incriminating documents contrary to section 12 of the 1939 Act; (b) with membership of an unlawful organisation, the IRA, contrary to section 21 of the 1939 Act. On 16th May 1957, G.R. Lawless was brought before the Dublin District Court together with three other men who were also charged with similar offences under the 1939 Act. The Court convicted Lawless on the first charge and sentenced him to one month's imprisonment; it acquitted him on the second charge. The Court record showed that the second charge was dismissed "on the merits" of the case but no official report of the proceedings appears to be available. The reasons for this acquittal were not clearly established. G.R. Lawless was released on about 16th June 1957, after having served his sentence in Mountjoy Prison, Dublin. 20. G.R. Lawless was re-arrested on 11th July 1957 at Dun Laoghaire by Security Officer Connor when about to embark on a ship for England. He was detained for 24 hours at Bridewell Police Station in Dublin under section 30 of the 1939 Act, as being a suspected member of an unlawful organisation, namely the IRA. Detective-Inspector McMahon told the Applicant on the same day that he would be released provided that he signed an undertaking in regard to his future conduct. No written form of the undertaking proposed was put to G.R. Lawless and its exact terms are in dispute. On 12th July 1957, the Chief Superintendent of Police, acting under section 30, sub-section 3 of the 1939 Act, made an order that G.R. Lawless be detained for a further period of 24 hours expiring at 7.45 p.m. on 13th July 1957. At 6 a.m. on 13th July 1957, however, before Lawless'detention under section 30 of the 1939 Act had expired, he was removed from the Bridewell Police Station and transferred to the military prison in the Curragh, Co. Kildare (known as the "Glass House"). He arrived there at 8 a.m. on the same day and was detained from that time under an order made on 12th July 1957 by the Minister for Justice under section 4 of the 1940 Act. Upon his arrival at the "Glass House", he was handed a copy of the above-mentioned detention order in which the Minister for Justice declared that G.R. Lawless was, in his opinion, engaged in activities prejudicial to the security of the State and he ordered his arrest and detention under section 40 of the 1940 Act. From the "Glass House", G.R. Lawless was transferred on 17th July 1957 to a camp known as the "Curragh Internment Camp", which forms part of the Curragh Military Camp and Barracks in County Kildare, and together with some 120 other persons, was detained there without charge or trial until 11th December 1957 when he was released. 21. On 16th August 1957 G.R. Lawless was informed that he would be released provided he gave an undertaking in writing "to respect the Constitution and laws of Ireland" and not to "be a member of or assist any organisation which is an unlawful organisation under the Offences against the State Act, 1939." G.R. Lawless declined to give this undertaking. 22. On 8th September 1957 G.R. Lawless exercised the right, conferred upon him by section 8 of the 1940 Act, to apply to have the continuation of his detention considered by the Detention Commission set up under the same section of that Act. He appeared before that Commission on 17th September 1957 and was represented by counsel and solicitors. The Detention Commission, sitting for the first time, adopted certain rules of procedure and adjourned until 20th September. 23. On 18th September 1957, however, G.R. Lawless'counsel also made an application to the Irish High Court, under Article 40 of the Irish Constitution, for a Conditional Order of habeas corpus ad subjiciendum. The object of the application was that the Court should order the Commandant of the detention camp to bring G.R. Lawless before the Court in order that it might examine and decide upon the validity of detention. A Conditional Order of habeas corpus would have the effect of requiring the Commandant to "show cause" to the High Court why he should not comply with that Order. The Conditional Order was granted on the same date and was served on the Commandant giving him a period of four days to "show cause". It was also served upon the Detention Commission. The Detention Commission sat on 20th September 1957, and decided to adjourn the hearing sine die pending the outcome of the habeas corpus application. 24. G.R. Lawless then applied, by a motion to the High Court, to have the Conditional Order made "absolute", notwithstanding the fact that the Commandant of the Detention Camp had in the meantime "shown cause" opposing this application. The Commandant had, in this connection, relied upon the order for the Applicant's detention which had been made by the Minister for Justice. The High Court sat from 8th to 11th October 1957 and heard full legal submissions by counsel for both parties. On 11th October it gave judgment allowing the "cause shown" by the camp Commandant to justify detention. The habeas corpus application was therefore dismissed. 25. On 14th October 1957 G.R. Lawless appealed to the Supreme Court, invoking not only the Constitution and laws of Ireland but also the European Convention of Human Rights. On 6th November the Supreme Court dismissed G.R. Lawless'appeal. It gave its reasoned judgment on 3rd December 1957. The main grounds of the Supreme Court's judgment were as follows: (a) The 1940 Act, when in draft form as a Bill, had been referred to the Supreme Court for decision as to whether it was repugnant to the Irish Constitution. The Supreme Court had decided that it was not repugnant and Article 34 (3) 3 of the Constitution declared that no court had competence to question the constitutional validity of a law which had been approved as a Bill by the Supreme Court. (b) The Oireachtas (i.e. the Parliament) which was the sole legislative authority had not introduced legislation to make the Convention of Human Rights part of the municipal law of Ireland. The Supreme Court could not, therefore, give effect to the Convention if it should appear to grant rights other than, or supplementary to, those provided under Irish municipal law. (c) The appellant's period of detention under section 30 of the 1939 Act was due to expire at 7.45 p.m. on 13th July 1957. At that time he was already being detained under another warrant issued by the Minister for Justice and his detention without release was quite properly continued under the second warrant. (d) The appellant had not established a prima facie case in regard to his allegation that he had not been told the reason for his arrest under the Minister's warrant. An invalidity in the arrest, even if established, would not, however, have rendered his subsequent detention unlawful whatever rights it might otherwise have given the appellant under Irish law. (e) The Court had already decided, when considering the 1940 Act as a Bill, that it had no power to question the opinion of a Minister who issued a warrant for detention under section 4 of that Act. (f) The appellant in the habeas corpus proceedings before the High Court had challenged the legality of the constitution of the Detention Commission. Even if it was shown that the Commission's rulings on various procedural matters were wrong, that would not make the appellant's detention unlawful nor would it provide a basis for an application for habeas corpus. Section 8 of the 1940 Act showed that the Commission was not a court and an application before it was not a form of proceedings but no more than an enquiry of an administrative character. 26. Meanwhile, on 8th November 1957 - that is two days after the announcement of the Supreme Court's rejection of his appeal - G.R. Lawless had introduced his Application before the European Commission of Human Rights, alleging that his arrest and detention under the 1940 Act, without charge or trial, violated the Convention and he claimed: (a) immediate release from detention; (b) payment of compensation and damages for his detention; and (c) payment of all the costs and expenses of, and incidental to the proceedings instituted by him in the Irish courts and before the Commission to secure his release. 27. Shortly afterwards the Detention Commission resumed its consideration of the case of G.R. Lawless under section 8 of the 1940 Act and held hearings for that purpose on 6th and 10th December 1957. On the latter date, at the invitation of the Attorney-General, G.R. Lawless in person before the Detention Commission gave a verbal undertaking that he would not "engage in any illegal activities under the Offences against the State Acts, 1939 and 1940", and on the following day an order was made by the Minister for Justice, under section 6 of the 1940 Act, releasing the Applicant from detention. 28. The release of G.R. Lawless from detention was notified to the European Commission of Human Rights by his solicitor in a letter dated 16th December 1957. The letter at the same time stated that G.R. Lawless intended to continue the proceedings before the Commission with regard to (a) the claim for compensation and damages for his detention and (b) the claim for reimbursement of all costs and expenses in connection with the proceedings undertaken to obtain his release. VII 29. At the written and oral proceedings before the Court, the European Commission of Human Rights and the Irish Government made the following submissions: The Commission, in its Memorial of 27th June 1960 : "May it please the Court to take into consideration the findings of the Commission in its Report on the case of Gerard Richard Lawless and (1) to decide: (a) whether or not the detention of the Applicant without trial from 13th July to 11th December 1957 under section 4 of the Offences against the State (Amendment) Act, 1940, was in conflict with the obligations of the Respondent Government under Articles 5 and 6 (art. 5, art. 6) of the Convention; (b) whether or not such detention was in conflict with the obligations of the Respondent Government under Article 7 (art. 7) of the Convention; (2) if such detention was in conflict with the obligations of the Respondent Government under Articles 5 and 6 (art. 5, art. 6) of the Convention, to decide: (a) whether or not the Government's letter to the Secretary-General of 20th July 1957 was a sufficient communication for the purposes of Article 15, paragraph (3) (art. 15-3) of the Convention; (b) whether or not, from 13th July to 11th December 1957, there existed a public emergency threatening the life of the nation, within the meaning of Article 15, paragraph (1) (art. 15-1) of the Convention; (c) if such an emergency did exist during that period, whether or not the measure of detaining persons without trial under section 4 of the 1940 Act, as it was applied by the Government, was a measure strictly required by the exigencies of the situation; (3) to decide whether or not the Applicant is, in any event, precluded by Article 17 (art. 17) of the Convention from invoking the provisions of Articles 5, 6 and 7 (art. 5, art. 6, art. 7); (4) in the light of its decisions on the questions in paragraphs 1-3 of these submissions, to adjudge and declare: (a) whether or not the facts disclose any breach by the Respondent Government of its obligations under the Convention; (b) if so, what compensation, if any, is due to the Applicant in respect of the breach." 30. The Agent of the Irish Government, at the public hearing on 10th April 1961 : "May it please the Court to decide and declare that the answers to the questions contained in paragraph 58 of the Commission's Memorial of 27th June 1960 are as follows: 1. (a) That the detention of the Applicant was not in conflict with the obligations of the Government under Articles 5 and 6 (art. 5, art. 6) of the Convention. (b) That such detention was not in conflict with the obligations of the Government under Article 7 (art. 7) of the Convention. 2. (a) That the Government's letter of 20th July 1957 was a sufficient communication for the purposes of paragraph (3) of Article 15 (art. 15-3) of the Convention or, alternatively, that in the present case, the Government are not by any of the provisions of the said paragraph (3) (art. 15-3) deprived from relying on paragraph (1) of Article 15 (art. 15-1). (b) That from 13th July 1957 to 11th December 1957 there did exist a public emergency threatening the life of the nation, within the meaning of Article 15, paragraph (1) (art. 15-1), of the Convention. (c) That the measure of detaining persons without trial, as it was applied by the Government, was a measure strictly required by the exigencies of the situation. 3. That the Applicant is in any event precluded by Article 17 (art. 17) of the Convention from invoking the provisions of Articles 5, 6 and 7 (art. 5, art. 6, art. 7) of the Convention. 4. (a) That the facts do not disclose any breach by the Government of their obligations under the Convention. (b) That, by reason of the foregoing, no question of compensation arises." | On 20 July 1957 the Irish Government had sent a letter to the Secretary General of the Council of Europe informing him of the entry into force on 8 July 1957 of Part II of the Offences against the State (Amendment) Act, 1940, and stating that “... the bringing into operation of [the statute], which confers special powers of arrest and detention, [might] involve any derogation from the obligations imposed by the Convention ...” The applicant disputed the Irish Government’s right to rely on the letter of 20 July as a valid notice of derogation, asserting in particular that it did not comply with the strict requirements of Article 15 § 3 of the Convention. |
877 | Freedom to impart information | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 8. Since 1994 the first applicant company, Satakunnan Markkinapörssi Oy collected data from the Finnish tax authorities for the purpose of publishing information about natural persons ’ taxable income and assets in the Veropörssi newspaper. Several other publishing and media companies also publish such data which, pursuant to Finnish law, are accessible to the public (see paragraph 39 below for an explanation of the Finnish access to information regime). 9. In 2002 Veropörssi appeared 17 times, with each issue concentrating on a certain geographical area of the country. The data published comprised the surnames and forenames of approximately 1.2 million natural persons whose annual taxable income exceeded certain thresholds, mainly from 60,000 to 80,000 Finnish marks (approximately 10,000 to 13,500 euros (EUR)), as well as the amount, to the nearest EUR 100, of their earned and unearned income and taxable net assets. When published in the newspaper, the data were set out in the form of an alphabetical list and organised according to municipality and income bracket. 10. The first applicant company worked in cooperation with the second applicant company, Satamedia Oy, and both were owned by the same shareholders. In 2003 the first applicant company started to transfer personal data published in Veropörssi, in the form of CD-ROM discs, to the second applicant company which, together with a mobile telephone operator, started a text-messaging service (SMS service). By sending a person ’ s name to a service number, taxation information could be obtained concerning that person, on the requesting person ’ s mobile telephone, if information was available in the database or register created by the second applicant company. This database was created using personal data already published in the newspaper and transferred in the form of CD-ROM discs to the second applicant company. From 2006 the second applicant company also published Veropörssi. 11. It transpires from the case file that in 1997 the Minister of Justice requested that the police instigate a criminal investigation into the publishing activities of the applicant companies. No information is contained in the file as to the outcome of this request or of any subsequent investigation. 12. In September 2000 and November 2001, the applicant companies ordered taxation data from the Finnish National Board of Taxation ( verohallitus, skattestyrelsen ). Following the first order, the Board requested an opinion from the Data Protection Ombudsman, on the basis of which the Board invited the applicant companies to provide further information regarding their request and indicating that the data could not be disclosed if Veropörssi continued to be published in its usual form. The applicant companies subsequently cancelled their data request and paid people to collect taxation data manually at the local tax offices. B. First set of proceedings (2004 – 2009) 1. Decisions of the Data Protection Ombudsman and the Data Protection Board 13. On an unspecified date, probably in 2003, the Data Protection Ombudsman ( tietosuojavaltuutettu, dataombudsmannen ) contacted the applicant companies and advised them that, although accessing and publishing taxation data were not prohibited as such, they had to cease publishing such data in the manner and to the extent that had been the case in 2002, when they had published data concerning the 2001 tax year. The applicant companies refused to abide by this request, which they considered violated their right to freedom of expression. 14. By a letter of 10 April 2003 the Data Protection Ombudsman asked the Data Protection Board ( tietosuojalautakunta, datasekretessnämnden ) to prohibit the applicant companies from processing the taxation data in the manner and to the extent that had been the case in 2002 and from passing those data to the SMS service. He claimed that under the Personal Data Act the companies had no right to collect, store or pass on personal data and that the derogation provided by that Act concerning journalism did not, in his view, apply to the present case. The collecting of taxation information and the passing of such information to third parties were not for journalistic purposes and therefore were not covered by the derogation in the Personal Data Act, but rather constituted the processing of personal data in which the applicant companies had no right to engage. 15. On 7 January 2004 the Data Protection Board dismissed the Data Protection Ombudsman ’ s request. It found that the derogation laid down in the Personal Data Act concerning journalism applied to the present case. As regards the SMS service, the data used in the service had already been published in Veropörssi and therefore the Act did not apply to it. 2. Decision of the Helsinki Administrative Court (2005) 16. By letter dated 12 February 2004 the Data Protection Ombudsman appealed to the Helsinki Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ) reiterating his request that the applicant companies be prohibited from processing taxation data in the manner and to the extent that had been the case in 2002 and from passing such data to the SMS service. 17. On 29 September 2005 the Administrative Court rejected the appeal. It found that the derogation laid down in the Personal Data Act concerning journalism, which had its origins in Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data was adopted (OJ 1995 L 281, p. 31, hereafter “the Data Protection Directive”), should not be interpreted too strictly, as an overly strict interpretation would favour protection of privacy over freedom of expression. That court considered that Veropörssi had a journalistic purpose and that it was also in the public interest to publish such data. It emphasised, in particular, that the published data were already accessible to the general public. The journalism derogation thus applied in the circumstances of the present case. As regards the SMS service, the Administrative Court agreed with the Data Protection Board that, as the information had already been published in the newspaper, the Act did not apply to it. 3. Appeal to the Supreme Administrative Court (2005) 18. By letter dated 26 October 2005 the Data Protection Ombudsman lodged an appeal with the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ), reiterating the grounds of appeal already presented before the Helsinki Administrative Court. 19. On 8 February 2007 the Supreme Administrative Court decided to request a preliminary ruling from the Court of Justice of the European Communities (which became the Court of Justice of the European Union on 1 December 2009, hereafter the “CJEU”) on the interpretation of Directive 95/46 /EC. 4. Preliminary ruling of the CJEU (2008) 20. On 16 December 2008 the Grand Chamber of the CJEU handed down its judgment (see Case C-73/07 Tietosuojavaltuutettu v. Satakunnan Markkinapörssi Oy and Satamedia Oy, EU :C:2008:727 ). It found, first of all, that the activities in question constituted “processing of personal data” within the meaning of Article 3(1) of Directive 95/46. According to the CJEU, activities involving the processing of personal data such as those relating to personal data files which contained solely, and in unaltered form, material that had already been published in the media, also fell within the scope of the Directive (see paragraphs 37 and 49 of the judgment). The object of the derogation in Article 9 of the Directive for the processing of personal data carried out solely for journalistic purposes was to reconcile the protection of privacy with freedom of expression. In order to take account of the importance of the latter in every democratic society, it was necessary to interpret notions relating to that freedom, such as journalism, broadly. However, in order to achieve a balance between those two fundamental rights, the protection of the fundamental right to privacy required that the derogations and limitations in relation to the protection of data had to apply only in so far as were strictly necessary (see paragraphs 54 and 56 of the judgment). Journalistic activities were not limited to media undertakings and could be undertaken for profit-making purposes (see paragraph 61). Furthermore, when interpreting the journalistic purposes derogation, account must be taken of the evolution and proliferation of methods of communication and the dissemination of information. Activities such as those involved in the domestic proceedings, relating to data from documents which were in the public domain under domestic legislation, could be classified as “journalistic activities” if their sole object was the disclosure to the public of information, opinions or ideas, irrespective of the medium which was used to transmit them. Whether or not that was the case, was for the national court to determine (see paragraphs 60-62 of the judgment). 5. Decision of the Supreme Administrative Court (2009) 21. On 23 September 2009 the Supreme Administrative Court, applying the ruling of the CJEU and with reference to the case-law on Article 10 of the Convention, quashed the impugned decisions of the Data Protection Board and the Helsinki Administrative Court and referred the case back to the Data Protection Board for a fresh examination with a view to issuing an order pursuant to section 44(1) of the Personal Data Act. The Supreme Administrative Court requested the Board to prohibit the processing of taxation data by the applicant companies in the manner and to the extent carried out in 2002. 22. In its legal assessment, the Supreme Administrative Court gave the following reasoning: “Scope of the matter The present case does not concern the question of the extent to which taxation data and official documents concerning taxation are public under the Act on the Public Disclosure and Confidentiality of Tax Information. Nor does it concern the right to publish taxation data as such but only the processing of personal data. Therefore, there is no issue of possible prior interference with the content of the publications, but rather an assessment of whether the legal conditions set for personal data processing and protection of privacy are fulfilled. The reconciliation of protection of privacy with freedom of expression is part of the legal assessment of personal data processing in the matter. ... Reconciliation of the protection of privacy and freedom of expression Interpretation of the exception concerning journalistic purposes in the Data Protection Directive. The Court of Justice of the European Communities emphasised that the purpose of the Data Protection Directive is to ensure that when processing their personal data, the Member States guarantee individuals ’ fundamental rights and freedoms, and in particular their right to privacy, while allowing the free movement of such information. The Court further emphasised that these fundamental rights must be reconciled to a certain extent with the fundamental right to freedom of expression, and that this task belongs to the Member States. ... It therefore appears from the aforementioned ruling of the Court of Justice of the European Communities that the concept of journalism must, as such, be interpreted broadly within the meaning of Article 9 of the Directive, that, on the other hand, the protection of privacy can be derogated from only in so far as it is strictly necessary, and that this task of reconciliation of the two fundamental rights is the task of the Member States. Ensuring proper balance between the rights and interests at stake, including the fundamental rights guaranteed in the Communities ’ legal order, is the task of the domestic authorities and courts (see also case C-101/01 Lindqvist ). Interpretation of the exception in the Personal Data Act concerning journalistic purposes. ... It transpires from the preparatory work on the Personal Data Act (HE 96/1998 vp ) that the purpose of the adoption of the Personal Data Act was to maintain the existing situation in respect of journalistic files kept by the media, provided it remained within the limits imposed by the Data Protection Directive. Therefore, in order to conclude that processing of personal data is conducted for journalistic purposes within the meaning of the Personal Data Act, inter alia, that data must be used solely for journalistic activities and the data must not be made available to persons other than those involved in those journalistic activities. When interpreting section 2(5) of the Personal Data Act, particular regard must be had to the fact that it concerns the reconciliation of two fundamental rights, namely the freedom of expression and the protection of privacy. ... The case-law of the European Court of Human Rights has also adopted a position on reconciling freedom of expression with the protection of privacy. The Court has held, inter alia in its von Hannover judgment of 24 June 2004, that the press plays an essential role in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart, in a manner consistent with its obligations and responsibilities, information and ideas on all matters of public interest. On the other hand, the Court also held in the above-mentioned judgment that increased vigilance as regards the protection of private life was necessary in order to contend with the new communications technologies which make it possible to store and reproduce personal data. According to the Court, when balancing the protection of private life against freedom of expression, the decisive criterion had to be the contribution made by publishing the data to a debate of public interest. If a publication is only meant to satisfy the curiosity of a certain audience, freedom of expression must be interpreted more narrowly. In the present case, it must be assessed to what extent the impugned processing of personal data as carried out in the course of the companies ’ activities falls within the scope of the exception concerning journalistic purposes that is provided for in section 2(5) of the Personal Data Act. The starting point is whether the aim of their activities was to disclose information, opinions or ideas to the public. In this assessment, account must be taken of whether or to what extent those activities can be seen as contributing to a debate in a democratic society rather than solely satisfying the curiosity of certain individuals. Processing of personal taxation data in the background file of Satakunnan Markkinapörssi Oy and in the Veropörssi newspaper Satakunnan Markkinapörssi Oy collected for the Veropörssi newspaper taxation data from different tax offices in which individuals ’ names appear together with information on their taxable income. As mentioned above, the case concerns the processing of personal data to which the general requirements in Chapter 2 of the Personal Data Act are applicable, unless the Act allows for an exception from the application of these provisions. It must first of all be assessed whether the processing of personal data in the company ’ s background file before the publication of such data in the Veropörssi newspaper falls within the scope of the exception concerning journalistic purposes. From the preparatory work on the amendment of the Personal Data File Act (HE 311/1993 vp ), which was the Act in force before the Personal Data Act, it transpires in particular that the press considers that the right to freely disclose information also requires journalists to be able, in advance, to freely collect and store information. Restricting the processing of personal data at this stage, that is to say before publication, could in practice mean that a prior decision is taken on what can be published. Such an outcome would be incompatible with the fundamental right guaranteeing freedom of expression. The issue at stake in the present case concerns publicly accessible personal data received from the tax authorities. The collection and processing of such data in the company ’ s internal files for the purpose of the company ’ s publishing activities can, on the basis of above-mentioned grounds, be regarded as processing of personal data for journalistic purposes. The processing of large quantities of such data from the various municipal taxation records may well be necessary as background information for the purpose of the editing of a publication concerning taxation and from the point of view of free communication and open debate. At this stage of activities the protection of the privacy of the persons concerned can also be sufficiently secured, provided that the data collected and stored in the file are protected against unlawful processing as required by section 32 of the Personal Data Act. Satakunnan Markkinapörssi Oy has published the personal data collected from the tax offices as wide-ranging municipality-based catalogues in the Veropörssi newspaper. As already stated above, in this regard too it is a question of processing personal data within the meaning of section 3(2) of the Personal Data Act. As part of the case file, the Supreme Administrative Court had at its disposal Veropörssi newspaper no. 14/2004, published by Satakunnan Markkinapörssi Oy and covering the Helsinki metropolitan area. In this respect it must be decided whether a derogation is possible from the requirements relating to the processing of personal data on the basis of section 2(5) of the Act, that is to say whether the impugned processing of personal data by publishing those data in the Veropörssi newspaper came within the scope of the exception provided for journalistic purposes. ... It transpires from the preparatory work on the Personal Data Act (HE 96/1998 vp ) that the processing of data in the background file referred to in the Personal Data File Act must relate solely to journalistic activities and that the processed data must not be made available to any persons not engaged in journalistic activities. The purpose of section 2(5) of the Personal Data Act was to maintain the existing situation in respect of journalistic files kept by the media, within the limits allowed by the Data Protection Directive. Therefore, the purpose of the Personal Data Act in this respect can be seen as guaranteeing the possibility for free journalistic work prior to the publication of information. The term “processing of personal data for journalistic purposes” cannot be regarded as covering the large–scale publication of the journalistic background file, almost verbatim, as catalogues, albeit split into different parts and sorted by municipality. Since the disclosure of registered data on such a scale is equivalent to the disclosure of the entire background file kept for journalistic purposes by the company, such disclosure does not represent solely an expression of information, opinions or ideas. As stated above, with a view to reconciling the requirements of freedom of expression with the protection of privacy, the collection of data before publication has been made permissible under section 2(5) of the Personal Data Act without any requirement of compliance with general conditions set out in section 8 of the Act. By contrast, the processing of personal data collected in the company ’ s background file by publishing it and by rendering it available to the general public to the extent that has been done in the present case, and beyond the scope of the minimum requirements set out in section 2(5) of the Act, cannot be regarded as compatible with the purpose of the Personal Data Act. Open public-interest debate, the monitoring of the exercise of power in society and the freedom to criticise, which are necessary in a democratic society, do not require the disclosure of the personal data of specific individuals in the manner and to the extent described above. When regard is also had to the foregoing comments on the narrow interpretation of section 2(4) of the Personal Data Act and the fact that a strict literal interpretation of that provision would result in a situation incompatible with the purpose of the Act as regards protection of personal data, the processing of personal data with a view to publishing them in the Veropörssi newspaper, and as far as the contents of this publication itself are concerned, was not conducted for journalistic purposes within the meaning of the Personal Data Act. ... Having regard to sections 2(5) and 32 of the Personal Data Act and Article 9 of the Data Protection Directive, as interpreted by the Court of Justice of the European Communities in its preliminary ruling, the collection of personal data prior to its publication in the Veropörssi newspaper and its processing in the background file of Satakunnan Markkinapörssi Oy cannot as such be regarded as contrary to the regulations concerning the protection of personal data, provided that, inter alia, the data have been protected properly. However, with reference to all the clarifications on how and to what extent the personal data in the background file were further processed in the Veropörssi newspaper, Satakunnan Markkinapörssi Oy did in fact process personal data concerning natural persons in violation of the Personal Data Act. Handover of data in a CD-ROM Satakunnan Markkinapörssi Oy handed over a CD-ROM containing the published data to Satamedia Oy so that the latter could start up an SMS service using that data. As mentioned above, that action amounts to the processing of personal data within the meaning of section 3(2) of the Personal Data Act. Having regard to the preliminary ruling of the Court of Justice of the European Communities and its effect on the interpretation of section 2(4) of the Personal Data Act, as well as all that has been said above about the processing of personal data in the Veropörssi newspaper, the handover to Satamedia Oy of personal data collected in the background file of Satakunnan Markkinapörssi Oy, even though they were published in the Veropörssi newspaper, cannot be regarded as processing of personal data for journalistic purposes within the meaning of Personal Data Act. Nor can the processing of personal data in such a manner be regarded as having been effected for journalistic purposes within the meaning of Article 9 of the Data Protection Directive. Therefore, in that regard too, Satakunnan Markkinapörssi Oy processed personal data in violation of the Personal Data Act. Processing of personal data for the realisation of a SMS service by Satamedia Oy As stated above in the “Facts” section, Satamedia Oy handed over the above-mentioned personal data to a third company in order to start up a SMS service, which company operated the SMS service on behalf of Satamedia Oy. It was pointed out above that Satakunnan Markkinapörssi Oy had no right under the Personal Data Act to process the personal data at issue by handing it over to Satamedia Oy. Consequently, Satamedia Oy also had no right under the Personal Data Act to process personal data received in this manner. In addition, it follows from the preliminary ruling of the Court of Justice of the European Communities that the exception provided for in the Data Protection Directive, which concerns the processing of personal data for journalistic purposes, requires the disclosure of data to the public. According to section 2(1) of the Act on the Exercise of Freedom of Expression in Mass Media, the term “the public” in that Act refers to a group of freely determined message recipients. Satamedia Oy ’ s SMS service involves the company processing personal data relating to the taxation of a specific individual on the basis of a request by another individual. It therefore does not concern disclosure of data to the general public, as explained above, but replying to a request by an individual concerning the personal data of another individual. Open public-interest debate, the monitoring of the exercise of power in society and the freedom to criticise, which are necessary in a democratic society, do not require the possibility of processing the personal data of specific individuals as has been done in this case. Freedom of expression does not require any derogation from the protection of privacy in such a situation. The Court of Justice of the European Communities further stated in its preliminary ruling that the technical means used for the transfer of information is not relevant when assessing whether there is any question of activities undertaken solely for journalistic purposes. As regards the SMS service operated by Satamedia Oy, it is irrelevant that the data were transferred via mobile phones and text messages. Therefore, this is not a case of treating this mode of transmission of data differently from other modes of transmission. The assessment would be the same if the company processed, on the basis of a request by an individual, the personal data of another individual by using some other mode of transmission.” C. Second set of proceedings (2009 – 2012) 23. Pursuant to the above-mentioned judgment of the Supreme Administrative Court, on 26 November 2009 the Data Protection Board prohibited the first applicant company from processing taxation data in the manner and to the extent that had been the case in 2002 and from forwarding that information to an SMS service. It found that the collection of personal data prior to its publication in Veropörssi and its processing in the background file of the first applicant company could not as such be regarded as contrary to the data protection rules, provided, inter alia, that the data had been protected properly. However, considering the manner and the extent to which the personal data in the background file had been published in Veropörssi, the first applicant company had processed personal data concerning natural persons in violation of the Personal Data Act. The second applicant company was prohibited from collecting, storing or forwarding to an SMS service any data received from the first applicant company ’ s database and published in Veropörssi. 24. By letter dated 15 December 2009, after the Data Protection Board had made its decision, the Data Protection Ombudsman asked the applicant companies to indicate what action they were envisaging in response to the Board ’ s decision. In their reply, the applicant companies asked for the Data Protection Ombudsman ’ s views on the conditions under which they could continue to publish public taxation data at least to a certain extent. In his reply the Data Protection Ombudsman stated, with reference to the decision of the Data Protection Board of 26 November 2009, that “when data on taxable income were collected in a database and published in large catalogues almost as it stood, the Personal Data Act was applicable... ”. He reminded them of his duty to report any breach of the Personal Data Act to the police. 25. By letter dated 9 February 2010 the applicant companies appealed against the decision of the Data Protection Board to the Helsinki Administrative Court, which transferred the case to the Turku Administrative Court. They complained that the decision violated the Constitutional prohibition of censorship as well as their right to freedom of expression. According to the applicants, under domestic law, it was not possible to prevent publication of information on the basis of the amount of information to be published or of the means used for its publication. Nor was it possible to rely on the “public interest” as a criterion for preventing publication where preventive restriction of freedom of expression was concerned. Accepting that would mean that the authorities would be able to prevent publication if they thought that the publication did not promote discussion of a topic of public interest. 26. On 28 October 2010 the Turku Administrative Court rejected the applicant companies ’ appeal. It found that the Supreme Administrative Court had stated in its decision of 2009 that the case concerned neither the public accessibility of taxation data nor the right to publish such information per se. As the court was now examining only the 2009 decision rendered by the Data Protection Board, it could not examine the issues which the Supreme Administrative Court had excluded from the scope of its 2009 decision. As the Board ’ s decision corresponded to the content of the latter decision, there was no reason to change it. 27. By letter dated 29 November 2010 the applicant companies further appealed to the Supreme Administrative Court. 28. On 18 June 2012 the Supreme Administrative Court upheld the judgment of the Turku Administrative Court, reiterating that the case concerned neither the right to publish taxation information as such, nor preventive censorship. D. Subsequent developments 29. According to the information submitted by the applicants, the SMS service was shut down after the 2009 decision of the Supreme Administrative Court was served on the applicant companies. The newspaper continued publishing taxation data in autumn 2009 when its content was only one fifth of the previous content. Since then the newspaper has not appeared. The Government, on the other hand, submitted that, according to the applicant companies ’ website, Veropörssi was still being published on a regional basis in 2010 and 2011. Moreover, an Internet service continued to operate allowing anyone to request a natural person ’ s tax data concerning the year 2014 by filling in a form on the website in question. The requested tax information would then be delivered to the customer by phone call, text message or e-mail. 30. The editor-in-chief of Veropörssi lodged an application with the Court in 2010, complaining that the impugned decision of the Supreme Administrative Court violated his right to freedom of expression. On 19 November 2013 the application was declared inadmissible as being incompatible ratione personae with the provisions of the Convention (see Anttila v. Finland ( dec. ), no. 16248/10, 19 November 2013). 31. The first applicant company was declared bankrupt on 15 March 2016. The bankruptcy administration did not oppose the continuation of the present proceedings before the Court (see paragraph 94 below). | After two companies had published the personal tax information of 1.2 million people, the domestic authorities ruled that such wholesale publication of personal data had been unlawful under data protection laws, and barred such mass publications in future. The companies complained that the ban had violated their right to freedom of expression. |
1,013 | International armed conflicts and lack of a formal derogation under Article 15 of the Convention | A. The parties’ submissions 1. The applicant 2. The Government B. The Court’s evaluation of the facts II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION A. The parties’ submissions 1. The applicant 2. The Government B. The Court’s assessment III. ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 2, 3 AND 4 OF THE CONVENTION A. Jurisdiction 1. The parties’ submissions 2. The Court’s assessment B. The merits of the complaints under Article 5 §§ 1, 2, 3 and 4 1. The parties’ submissions 2. The Court’s assessment OPERATIVE PART PARTLY DISSENTING OPINION OF JUDGE SPANO JOINED BY JUDGES NICOLAOU, BIANKU AND KALAYDJIEVA In the case of Hassan v. the United Kingdom, The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President, Josep Casadevall, Guido Raimondi, Ineta Ziemele, Mark Villiger, Isabelle Berro-Lefèvre, Dragoljub Popović, George Nicolaou, Luis López Guerra, Mirjana Lazarova Trajkovska, Ledi Bianku, Zdravka Kalaydjieva, Vincent A. De Gaetano, Angelika Nußberger, Paul Mahoney, Faris Vehabović, Robert Spano, judges, and Michael O’Boyle, Deputy Registrar, Having deliberated in private on 11 December 2013 and 25 June 2014, Delivers the following judgment, which was adopted on that last date: PROCEDURE 1. The case originated in an application (no. 29750/09) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iraqi national, Mr Khadim Resaan Hassan (“the applicant”), on 5 June 2009. 2. The applicant was represented by Mr P. Shiner, a solicitor practising in Birmingham, together with Mr T. Otty, QC, and Mr T. Hickman, barristers practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson, Foreign and Commonwealth Office. 3. The applicant alleged that his brother was arrested and detained by British forces in Iraq and was subsequently found dead in unexplained circumstances. He complained under Article 5 §§ 1, 2, 3 and 4 of the Convention that the arrest and detention were arbitrary and unlawful and lacking in procedural safeguards and under Articles 2, 3 and 5 that the United Kingdom authorities failed to carry out an investigation into the circumstances of the detention, ill-treatment and death. 4. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Its examination of the application was adjourned pending adoption of the judgment in Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011. Subsequently, on 30 August 2011, the application was communicated to the Government. 5. On 4 June 2013 the Chamber decided to relinquish jurisdiction to the Grand Chamber. The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court. 6. The applicants and the Government each filed further written pleadings on the admissibility and merits and third-party comments were received from Professor Françoise Hampson and Professor Noam Lubell, of the Human Rights Centre, University of Essex (“the Third Party”). 7. A hearing took place in public in the Human Rights Building, Strasbourg, on 11 December 2013 (Rule 59 § 3). There appeared before the Court: (a) for the GovernmentMs R. Tomlinson, Agent, Mr J. Eadie QC, Mr C. Staker, Counsel, Mr M. Addison, Ms A. McLeod, Advisers; (b) for the applicantMr T. Otty QC, Mr T. Cleaver, Counsel, Mr P. Shiner, Ms B. Shiner, Ms L. Shiner, Advisers. The Court heard addresses by Mr Eadie and Mr Otty and their answers to questions put by the Court. THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The facts of the case, as submitted by the parties, may be summarised as follows. Where certain facts are in dispute, each party’s version of events is set out. A. The invasion of Iraq 9. On 20 March 2003 a coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq from their assembly point across the border with Kuwait. By 5 April 2003 British forces had captured Basrah and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. B. The capture of the applicant’s brother by British forces 10. Prior to the invasion, the applicant was a general manager in the national secretariat of the Ba’ath Party and a general in the Al-Quds Army, the army of the Ba’ath Party. He lived in Umm Qasr, a port city in the region of Basrah, near the border with Kuwait and about 50 kilometres from Al-Basrah (Basrah City). After the British army entered into occupation of Basrah, they started arresting high ranking members of the Ba’ath Party. Other Ba’ath Party members were killed by Iraqi militia. The applicant and his family therefore went into hiding, leaving the applicant’s brother, Tarek Resaan Hassan (henceforth, “Tarek Hassan”), and his cousin to protect the family home. 11. According to information given by the Government, members of a British army unit, the 1 st Battalion The Black Watch, went to the applicant’s house early in the morning of 23 April 2003, hoping to arrest him. The applicant was not there, but the British forces encountered Tarek Hassan, who was described in the contemporaneous report drawn up by the arresting unit (“the battalion record”) as a “gunman”, found on the roof of the house with an AK-47 machine gun. The battalion record indicated that the “gunman” identified himself as the brother of the applicant and that he was arrested at approximately 6.30 a.m. It further indicated that the house was found by the arresting soldiers to contain other firearms and a number of documents of intelligence value, related to local membership of the Ba’ath Party and the Al-Quds Army. 12. According to a statement made by the applicant and dated 30 November 2006, Tarek Hassan was arrested by British troops on 22 April 2003, in the applicant’s absence. According to this statement, “When my sisters approached the British military authority they were told that I had to surrender myself to them before they would release my brother”. In a later statement, dated 12 September 2008, the applicant did not mention his sisters but instead stated that he asked his friend, Saeed Teryag, and his neighbour Haj Salem, to ask British forces for information about Tarek Hassan. The applicant asked these friends because he could trust them; Haj Salem was a respected businessman and Saeed Teryag had been to university and spoke English. According to the applicant, “[W]hen they approached the British military authorities the British told them I had to surrender myself to them before they would release my brother”. 13. According to a summary of a telephone interview with the applicant’s neighbour, Mr Salim Hussain Nassir Al-Ubody, dated 2 February 2007, Tarek Hassan was taken away by British soldiers on an unknown date in April at around 4.30 a.m., with his hands tied behind his back. Mr Al-Ubody stated that he approached one of the Iraqis who accompanied the soldiers to ask what they wanted, and was told that the soldiers had come to arrest the applicant. Three days later, the applicant telephoned Mr Al-Ubody and asked him to find a guard for his house and to find out from the British army what had happened to Tarek Hassan. Two days later, Mr Al-Ubody went to the British headquarters at the Shatt ‑ Al ‑ Arab Hotel. He asked an Iraqi translator if he could find out anything about Tarek Hassan. Two days later, when Mr Al-Ubody returned, the translator informed him that the British forces were keeping Tarek Hassan until the applicant surrendered. The translator further advised Mr Al-Ubody not to return, as this might expose him to questioning. C. Detention at Camp Bucca 14. Both parties agreed that Tarek Hassan was taken by British forces to Camp Bucca. This Camp, situated about 2.5 kilometres from Umm Qasr and about 70 kilometres south of Al-Basrah was first established on 23 March 2003 as a United Kingdom detention facility. However, it officially became a United States facility, known as “Camp Bucca”, on 14 April 2003. In April 2003 the Camp was composed of eight compounds, divided by barbed wire fencing, each with a single entry point. Each compound contained open-sided tents capable of housing several hundred detainees, a water tap, latrines and an uncovered area. 15. For reasons of operational convenience, the United Kingdom continued to detain individuals they had captured at Camp Bucca. One compound was set aside for internees detained by the United Kingdom on suspicion of criminal offences. In addition, the United Kingdom operated a separate compound at the Camp for its Joint Forward Interrogation Team (JFIT). This compound had been built by British forces and continued to be administered by them. Although detainees captured by both the United Kingdom and the United States armies were interrogated at the JFIT compound, and teams of United Kingdom and United States interrogators worked there, the United Kingdom JFIT team controlled the detention and interrogation of all prisoners held there. Elsewhere in the Camp, the United States army was responsible for guarding and escorting detainees and the United Kingdom was obliged to reimburse the United States for costs involved in maintaining United Kingdom captured detainees held at the Camp. The British Military Provost Staff (military police) had an “overseeing responsibility” for United Kingdom detainees transferred to United States custody, except those detained in the JFIT compound. United Kingdom detainees who were ill or injured were treated in British field hospitals. The United Kingdom authorities were responsible for liaising with the International Committee of the Red Cross (ICRC) about the treatment of United Kingdom detainees and the notification of their families regarding the detention (see further paragraph 20 below). The United Kingdom also remained responsible for classifying detainees under Articles 4 and 5 of the Third Geneva Convention (see paragraph 33 below). 16. In anticipation of the United Kingdom using shared facilities to hold United Kingdom detainees, on 23 March 2003 the United Kingdom, United States and Australian Governments entered into a Memorandum of Arrangement (“MOA”) relating to the transfer of custody of detainees, which provided as follows: “This arrangement establishes procedures in the event of the transfer from the custody of either the US, UK or Australian forces to the custody of any of the other parties, any Prisoners of War, Civilian Internees, and Civilian Detainees taken during operations against Iraq. The Parties undertake as follows: 1. This arrangement will be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, as well as customary international law. 2. US, UK, and Australian forces will, as mutually determined, accept (as Accepting Powers) prisoners of war, civilian internees, and civilian detainees who have fallen into the power of any of the other parties (the Detaining Power) and will be responsible for maintaining and safeguarding all such individuals whose custody has been transferred to them. Transfers of prisoners of war, civilian internees and civilian detainees between Accepting Powers may take place as mutually determined by both the Accepting Power and the Detaining Power. 3. Arrangements to transfer prisoners of war, civilian internees, and civilian detainees who are casualties will be expedited, in order that they may be treated according to their medical priority. All such transfers will be administered and recorded within the systems established under this arrangement for the transfer of prisoners of war, civilian internees, and civilian detainees. 4. Any prisoners of war, civilian internees, and civilian detainees transferred by a Detaining Power will be returned by the Accepting Power to the Detaining Power without delay upon request by the Detaining Power. 5. The release or repatriation or removal to territories outside Iraq of transferred prisoners of war, civilian internees, and civilian detainees will only be made upon the mutual arrangement of the Detaining Power and the Accepting Power. 6. The Detaining Power will retain full rights of access to any prisoner of war, civilian internees and civilian detainees transferred from Detaining Power custody while such persons are in the custody of the Accepting Power. 7. The Accepting Power will be responsible for the accurate accountability of all prisoners of war, civilian internees, and civilian detainees transferred to it. Such records will be available for inspection by the Detaining Power upon request. If prisoners of war, civilian internees, or civilian detainees are returned to the Detaining Power, the records (or a true copy of the same) relating to those prisoners of war, civilian internees, and civilian detainees will also be handed over. 8. The Detaining Powers will assign liaison officers to Accepting Powers in order to facilitate the implementation of this arrangement. 9. The Detaining Power will be solely responsible for the classification under Articles 4 and 5 of the Geneva Convention Relative to the Treatment of Prisoners of War of potential prisoners of war captured by its forces. Prior to such a determination being made, such detainees will be treated as prisoners of war and afforded all the rights and protections of the Convention even if transferred to the custody of an Accepting Power. 10. Where there is doubt as to which party is the Detaining Power, all Parties will be jointly responsible for and have full access to all persons detained (and any records concerning their treatment) until the Detaining Power has by mutual arrangement been determined. 11. To the extent that jurisdiction may be exercised for criminal offenses, to include pre-capture offenses, allegedly committed by prisoners of war, civilian internees, and civilian detainees prior to a transfer to an Accepting Power, primary jurisdiction will initially rest with the Detaining Power. Detaining Powers will give favourable consideration to any request by an Accepting Power to waive jurisdiction. 12. Primary jurisdiction over breaches of disciplinary regulations and judicial offenses allegedly committed by prisoners of war, civilian internees, and civilian detainees after transfer to an Accepting Power will rest with the Accepting Power. 13. The Detaining Power will reimburse the Accepting Power for the costs involved in maintaining prisoners of war, civilian internees, and civilian detainees transferred pursuant to this arrangement. 14. At the request of one of the Parties, the Parties will consult on the implementation of this arrangement.” 17. According to the witness statement of Major Neil B. Wilson, who served with the Military Provost Staff at Camp Bucca during the period in question, the usual procedure was for a detainee to arrive at the Camp with a military escort from the capturing unit. On arrival he would be held in a temporary holding area while his documents were checked and his personal possessions were taken from him. Medical treatment would be provided at this point if required. The detainee would then be processed through the arrivals tent by United Kingdom personnel with the aid of an interpreter. A digital photograph would be taken and this, together with other information about the detainee, would be entered on the database used by the United Kingdom authorities to record a wide range of military personnel information during the operations in Iraq, including detainee information, known as the AP3-Ryan database. 18. Examination of this database showed that there was no entry under the name Tarek Resaan Hassan but there was an entry, with a photograph, for “Tarek Resaan Hashmyh Ali”. In his witness statement the applicant explained that for official purposes Iraqis use their own first name, followed by the names of their father, mother, grandfather and great-grandfather. “Ali” was the applicant’s great-grandfather’s name and it appeared that Hassan (his grandfather’s name) was omitted by mistake. Tarek Hassan was issued with a wristband printed with his United Kingdom internment serial number UKDF018094IZSM; with “DF” denoting “detention facility”, “IZ” meaning allegiance to Iraq and “SM” standing for “soldier male”. Screen shots from the AP3-Ryan database also show that Tarek Hassan was asked whether he consented to the national authorities being informed of his detention and that he did not consent to this. 19. Following the United Kingdom registration process, detainees would be transferred to the United States forces for a second registration. This involved the issue of a United States number, printed on a wrist band. Tarek Hassan’s United States registration number was UK912-107276EPW46. The “UK” reference indicated that the United Kingdom was the capturing nation and “EPW” indicated that he was treated by the United States forces as an enemy prisoner of war; however, at this stage all detainees were classified as prisoners of war except those captured by British forces on suspicion of having committed criminal offences. After registration, detainees were usually medically examined, then provided with bedding and eating and washing kits and transferred by United States forces to the accommodation areas. 20. The Government submitted a witness statement by Mr Timothy Lester, who was charged with running the United Kingdom Prisoner of War Information Bureau (UKPWIB) in respect of Iraq from the start of military operations there in March 2003. He stated that the UKPWIB operated in Iraq as the “National Information Bureau” required by Article 122 of the Third Geneva Convention and monitored details of prisoners of war internees and criminal detainees in order to facilitate contact with their next ‑ of-kin. The Third Geneva Convention also required the establishment of a “Central Prisoners of War Information Agency”. This role was subsumed by the Central Tracing Agency of the International Committee of the Red Cross (ICRC). The ICRC collected information about the capture of individuals and, subject to the consent of the prisoner, transmitted it to the prisoner’s country of origin or the power on which he depended. In practice, details of all prisoners taken into custody by British forces were entered by staff at the detention facility in Iraq and sent to Mr Lester in London, who then transferred the data to a spread-sheet and downloaded it to the ICRC’s secure website. He stated that during the active combat phase he typically passed data to the ICRC on a weekly basis, and monthly thereafter. However, Tarek Hassan’s details were not notified to the ICRC until 25 July 2003, because of a delay caused by the updating of UKPWIB computer system. In any event, it was noted on Tarek Hassan’s record that he did not consent to the Iraqi authorities being notified of his capture (see paragraph 18 above). In the absence of consent, Mr Lester considered it unlikely that the ICRC would have informed the Iraqi authorities and that those authorities would, in turn, have informed the Hassan family. D. The screening process 21. According to the Government, where the status of a prisoner was uncertain at the time of his arrival at Camp Bucca, he would be registered as a prisoner of war by the United Kingdom authorities. Any detainee, such as Tarek Hassan, captured in a deliberate operation was taken immediately to the JFIT compound for a two-stage interview. According to the Government, there were United Kingdom and United States interrogation teams working in the JFIT compound, and both teams interviewed both United Kingdom- and United States-captured detainees. The first interview may have been undertaken simply by whichever team was available when the detainee arrived. The aim of the interview process was to identify military or paramilitary personnel who might have information pertinent to the military campaign and, where it was established that the detainee was a non-combatant, whether there were grounds to suspect that he was a security risk or a criminal. If no such reasonable grounds existed, the individual was classified as a civilian not posing a threat to security and ordered to be released immediately. 22. A print-out from the JFIT computer database indicated that in Camp Bucca Tarek Hassan was assigned JFIT no. 494 and registration no. UK107276. His arrival was recorded as 23 April 2003 at 16.40 and his departure was recorded as 25 April 2003 at 17.00, with his “final destination” recorded as “Registration (Civ Cage).” Under the entry “Release/Keep” the letter “R” was entered. Under the heading “TQ”, which stood for “tactical questioning”, there was the entry “231830ZAPR03 ‑ Steve” and under the heading “Intg 1” was the entry “250500ZAPR03”. According to the Government, the first of these entries meant that Tarek Hassan was first subjected to tactical questioning on 23 April 2003 at 18.30 Zulu (“Zulu” in this context meant Coordinated Universal Time, also known as Greenwich Mean Time). On 23 April, 18.30 Zulu would have been 21.30 Iraqi time. The second entry indicated that Tarek Hassan was again subject to questioning on 25 April 2003 at 5.00 Zulu, or 8.00 local time and then released into the civilian pen at Camp Bucca at 20.00 local time on 25 April 2003. 23. The Government provided the Court with a copy of a record of an interview between Tarek Hassan and United States agents, dated 23 April 2003, 18.30 Zulu, which stated as follows: “EPW [Enemy Prisoner of War] was born in BASRA on August 3, 1981. He currently resides in his home with his father, mother, older brother (Name: Qazm; born in the 1970s), and his little sister (age; unexploited). Home is across from the Khalissa school in the Jamiyat region in N. BASRA. EPW left middle school as a recruit to play soccer. He currently plays in the Basra Soccer Club and his position is attacker/forward. His team receives money from the government and the Olympic committee to pay for team expenses. EPW has no job since soccer is his life and they pay for all of his soccer expenses. EPW knows that he was brought in because of his brother, Qazm. Qazm is a Othoo Sherba in the Ba’ath party and he fled his home four days ago to an unknown destination. Qazm joined the Ba’ath party in 1990 and is involved in regular meetings and emergency action planning (nothing else exploited). Before the war, Qazm received a pickup from the Ba’ath party. When the coalition forces entered BASRA, Qazm gave the pickup to a neighbour (name not exploited) to safeguard it and Qazm went to a hotel in downtown BASRA (name of hotel is unknown). Qazm made a few phone calls during that time, but never mentioned where he was staying. A problem arose when the original owners of the pickup, the local petroleum company, came to reclaim the vehicle they had lent the Ba’ath party. Qazm became frustrated with the whole mess and fled soon after that. EPW seems to be a good kid who was probably so involved with soccer that he didn’t follow his brother’s whereabouts all that much. But it seems they have a close knit family and EPW could know more about his brother’s activities in the Ba’ath party, and some of his friends involved in the party, too. Using any type of harsh approach is not going to be effective. EPW loves his family and soccer. EPW will cooperate, but he needs someone he can trust if he’s going to tell information about his brother that is going to harm him. EPW seems to be innocent of anything himself, but may help with information about others around him.” 24. A record of the second questioning was provided by the Government in the form of a Tactical Questioning Report. This document indicated that it related to “PW 494” with the “date of information” recorded as “250445ZAPR03”, that is 4.45 Zulu or 7.45 local time on 25 April 2003. The report stated: “1. EPW [Enemy Prisoner of War] is 22 years old, single, living with his 80 year old father (who is a Sheik) and his mother in the Jamiyet district of BASRAH. He works as a handyman and has not done his military service due to his status as a student. He stated that an AK 47 was present in their house at the time of his arrest but it was only kept for personal protection. The EPW and his father are not Ba’ath Party members. 2. EPW says he was arrested at his house by United States troops [sic] who were looking for his brother, Kathim. His brother is a Ba’ath Party member, an Uthoo Shooba. He joined the party in 1990 when he became a law student in the school of law in the Shaat Al Arab College. His brother is still a student, in his last year of study, married but with no children. He has alternated study with periods of work as a car trader. His brother was in fear of his life because of fear of reprisals against Ba’ath Party members and so had run away possibly to SYRIA or IRAN. The EPW last spoke with his brother 5 days ago by phone. His brother did not disclose his location. JFIT COMMENT : EPW appears to be telling the truth and has been arrested as a result of mistaken identity. He is of no intelligence value and it is recommended that he is released to the civilian pen. JFIT COMMENT ENDS. ” E. Evidence relating to Tarek Hassan’s presence in the civilian holding area at Camp Bucca and his possible release 25. The applicant submitted a summary of an interview dated 27 January 2007 with Fouad Awdah Al-Saadoon, the former chairman of the Iraqi Red Crescent in Basrah and a friend of the applicant’s family. He had been arrested by British troops and detained at Camp Bucca, in a tent holding approximately 400 detainees. He stated that on 24 April 2003 at around 6 p.m. Tarek Hassan was brought to the tent. Mr Al-Saadoon stated that Tarek Hassan seemed scared and confused but did not mention that Tarek Hassan complained of having been ill-treated. Tarek Hassan was not interrogated during the time they were together in Camp Bucca. Since Mr Al-Saadoon was in ill-health, Tarek Hassan brought him food and cared for him. Mr Al-Saadoon was released on 27 April 2003, in a batch of 200 prisoners, since the United Kingdom authorities had decided to release all detainees aged 55 or older. The detainees were released at night, on a highway between Al-Basrah and Al-Zubair and had to walk 25 miles to the nearest place they could hire cars. Following his release, he informed the applicant’s family that he had seen Tarek Hassan at Camp Bucca. According to the applicant, this was the only information received by the family about his brother’s whereabouts following the latter’s arrest. In response to this statement, the Government submitted that Mr Al-Saadoon might have been mistaken about the date, because it appeared from the interrogation records that Tarek Hassan was released to the civilian holding area on 25 April 2003. They also emphasised that stringent efforts were made to return individuals to their place of capture or to an alternate location if requested, and that 25 miles was much greater than the distance between Al-Basrah and Al-Zubair. 26. According to the witness statement, provided by the Government, of Major Neil Wilson, who commanded a group of soldiers from the Military Provost Staff who advised on detention issues within the United Kingdom area of operations in Iraq during the relevant period, the decision to release United Kingdom captured detainees held at Camp Bucca, other than those facing criminal charges, was taken by a tribunal convened by United Kingdom military legal officers. Details were then passed to the United States guards, before those released were processed out of the Camp, with their details checked and entered on the AP3 ‑ Ryan database. According to the orders made by the United Kingdom’s Military Divisional Headquarters based in Basrah and applying at that time, the United States forces were responsible for the repatriation of all prisoners to the areas within their field of operation and the United Kingdom forces were responsible for returning prisoners to areas within their field of operation, namely South East Iraq, regardless of which force had captured the prisoners. The ICRC was to have access to all those being released. Again according to the applicable orders, prisoners repatriated by British forces were to be loaded on to buses with armed guards on-board and armed military escort vehicles to the front and rear. Release was to be to specific repatriation points in daylight hours, with sufficient food and water to last the individuals being released until they got home. According to the evidence of Major Wilson, efforts were made to return individuals to their point of capture. There were four drop-off points within the United Kingdom field of operation, including “Al-Basrah GR TBC [grid reference to be confirmed]”. Umm Qasr was not listed as a drop ‑ off point but could be entered as a point of release on the records of individuals being processed for release. 27. The Government also submitted a military order dated 27 April 2003 (FRAGO 001/03), the purpose of which was to ensure the release from detention of the maximum possible number of civilians and prisoners of war prior to the cessation of hostilities (which was subsequently announced on 1 May 2003). The annex to the order set out the procedures to be followed. A number of individuals would continue to be detained on security grounds or because they were suspected of being criminals; they had already been identified by JFIT, with the decision recorded on the AP3-Ryan database, and a list given to the United States authorities to ensure they were not released. The remaining population would stay within the individual compounds and await release processing by the United Kingdom authorities. At the processing tent, a three-point check would be made of each detainee’s wrist-band, face and digital profile held on AP3-Ryan. The following information was then required to be entered into the database: “(1) Releasing Force Element; (2) Release Date; (3) Releasing Nation; (4) Selected Place of Release.” The text of the order itself referred to four drop ‑ off points (Al-Basrah, Najef, Al-Kut and An Nasariah (the latter three towns were to the north of Al-Basrah), but the annex listed in addition Um Qasr (south of Al-Basrah and 2.5 kilometres from the Camp) as a drop-off point. The United Kingdom forces would then retain the detainee’s identity card and pass him back to the United States authorities for final processing, including the issue of food and water and the return of personal belongings. Four holding areas would be established, “one for each release location”, from which the detainees would then be transported to the agreed repatriation points and released in daylight hours. The order also required a final audit to be conducted to check that all United Kingdom detainees listed on the AP3-Ryan database had either been released or continued to be detained. Should the record be identified of any person who had neither been released nor detained, a board of inquiry had to sit to determine what had happened. 28. In addition, the Government submitted a witness statement dated 29 October 2007 by Warrant Officer Class 2 Kerry Patrick Madison, who had responsibility for the management of the AP3-Ryan database. He stated that by 22 May 2003 AP3-Ryan showed that the United Kingdom forces had captured and processed 3,738 detainees in Iraq since the start of hostilities and had released all but 361. Annexed to Warrant Officer Madison’s statement were a number of screen prints showing entries on the database relating to Tarek Hassan. They showed that an entry was made on AP3-Ryan on 4 May 2003 at 1.45 p.m. recording the release of “Tarek Resaan Hashmyh Ali” at 00.01 on 2 May 2003. The releasing authority was stated to be “United Kingdom (ARMD) DIV SIG REGT”; the place of release was stated to be “Umm Qasr”; the method of release was “By Coach” and the ground of release was recorded as “End of Hostilities”. A further entry was made in the United Kingdom AP3-Ryan system on 12 May 2003 at 10.13 p.m. recording that: “PW was found to be absent from the internment facility when 100% check was conducted. PW was released on AP3 on 12 May 03”. According to the Warrant Officer Madison, some 400 individuals’ records included the statement “PW was released on AP3 on 12 May 03”, when they had in fact been released earlier and it was therefore likely that the Camp’s computer release records were brought up to date on 12 May following a physical check. The United States computer system did not record any release until 17 May 2003 but again, according to the Government, this was probably explained by a reconciliation of the United States Camp Bucca database with a physical check of occupants of the Camp by the United States authorities on 17 May. F. The discovery of Tarek Hassan’s body 29. According to the applicant, Tarek Hassan did not contact his family during the period following his purported release. On 1 September 2003 one of the applicant’s cousins received a telephone call from a man unknown to them, from Samara, a town north of Baghdad. This man informed them that a dead man had been found in the nearby countryside, with a plastic ID tag and piece of paper with the cousin’s telephone number written on it in the pocket of the sport’s top he was wearing. According to the applicant, Tarek Hassan was wearing sportswear when he was captured by British forces. The applicant’s cousin called him and, together with another brother, the applicant went to the forensic medical station of the Tekrit General Hospital in Samara. There they saw the body of Tarek Hassan with eight bullet wounds from an AK-47 machine gun in his chest. According to the applicant, Tarek Hassan’s hands were tied with plastic wire. The identity tag found in his pocket was that issued to him by the United States authorities at Camp Bucca. A death certificate was issued by the Iraqi authorities on 2 September 2003, giving the date of death as 1 September 2003, but the sections reserved for the cause of death were not completed. A police report identified the body as “Tariq Hassan” but gave no information about the cause of death. G. Correspondence with Treasury Solicitors and legal proceedings 30. The applicant remained in hiding in Iraq until October 2006, when he crossed the border to Syria. In November 2006, through a representative in Syria, he made contact with solicitors in the United Kingdom. The applicant’s solicitors wrote to the Government’s Treasury Solicitors on 21 December 2006 requesting explanations for the arrest and detention of Tarek Hassan and the circumstances that resulted in his death. It took some time to identify the applicant’s brother, because he was entered in the Camp Bucca databases under the name “Tarek Resaan Hashmyh Ali” (see paragraph 18 above). However, in a letter dated 29 March 2007 Treasury Solicitors stated that a check of the United Kingdom’s prisoner of war computer records had produced a record of Tarek Resaan Hashmyh Ali being detained at Camp Bucca. In a further letter dated 5 April 2007 Treasury Solicitors stated that further computer records had been recovered which “confirm the handover” of Tarek Hassan from the United Kingdom authorities to the United States authorities at Camp Bucca and which recorded his release on 12 May 2003. 31. The applicant commenced proceedings in the High Court on 19 July 2007 seeking declarations in respect of breaches of his brother’s rights under Articles 2, 3 and 5 of the Convention, as set out in Schedule 1 to the Human Rights Act 1998, financial compensation and an order requiring the Government to initiate an independent and public investigation into the fate of the deceased after he was detained by British forces on 22 April 2003. The claim was heard on 19 and 20 January 2009 and was rejected in a judgment delivered by Walker J on 25 February 2009 ([2009] EWHC 309 (Admin)). The judge held that, in the light of the judgment of the House of Lords in Al-Skeini (see further the summary of the House of Lords’ judgment in Al-Skeini v. the United Kingdom, cited above, §§ 83-88), it could not be said that Tarek Hassan was within the United Kingdom’s jurisdiction under Article 1 of the Convention at any time. In Al-Skeini the House of Lords had recognised a number of exceptions to the general rule that a State did not exercise jurisdiction extra-territorially, but these did not include detention of a person unless this took place within a military prison or other comparable facility controlled by the Contracting State. The judge’s analysis of the MOA (see paragraph 16 above) indicated that Camp Bucca was a United States rather than a United Kingdom military establishment, for the following reasons: “... It is plain that the detaining power [the United Kingdom] relinquishes, until such time as it requires return of the individual in question, responsibility for maintaining and safeguarding those transferred. Accountability in that regard is the responsibility of the accepting power [the United States]. As regards adjudications concerning the individual’s contact after transfer to the accepting power the detaining power relinquishes to the accepting power primary jurisdiction. Overall this amounts to a legal regime in which the detaining power has no substantial control over the day to day living conditions of the individual in question.” 32. The applicant was advised that an appeal would have no prospect of success. | This case concerned the capture of an Iraqi national – the applicant’s brother – by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. The applicant submitted in particular that his brother’s arrest and detention had been arbitrary and unlawful and lacking in procedural safeguards. The United Kingdom had not lodged any formal request under Article 15 of the Convention allowing it to derogate from its obligations under Article 5 (right to liberty and security) of the Convention in respect of its operations in Iraq. Instead, the Government had in their submissions requested the Court to disapply United Kingdom’s obligations under Article 5 or in some other way interpret them in the light of the powers of detention available to it under international humanitarian law. |
488 | Choice of family name and transmission of parents’ surnames to their children | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants, who are Swiss nationals, have both lived in Basle since 1975. They were married in Germany in 1984 and Mrs Burghartz has German citizenship also. In accordance with German law (Article 1355 of the Civil Code), they chose the wife ’ s surname, "Burghartz", as their family name; the husband availed himself of his right to put his own surname in front of that and thus call himself "Schnyder Burghartz". 7. The Swiss registry office (Zivilstandsamt) having recorded "Schnyder" as their joint surname, the couple applied to substitute "Burghartz" as the family surname and "Schnyder Burghartz" as the husband ’ s surname. On 6 November 1984 the cantonal government (Regierungsrat) of Basle Rural turned down the application. 8. On 26 October 1988 the applicants made a further application to the cantonal Department of Justice (Justizdepartement) of Basle Urban, following an amendment to the Civil Code as regards the effects of marriage, which had been made on 5 October 1984 and had come into force on 1 January 1988 (see paragraph 12 below). On 12 December 1988 their application was again refused, on the ground that they had not pointed to any serious inconvenience arising from the use of the surname "Schnyder". Furthermore, in the absence of any transitional provisions the new Article 30 para. 2 of the Civil Code could not apply to couples married before 1 January 1988. Lastly, under the new Article 160 para. 2, only a wife could put her own surname before the family name (see paragraph 12 below). 9. The applicants then lodged an appeal (Berufung) with the Federal Court (Bundesgericht) in which they complained of, among other things, a breach of the new Articles 30 and 160 para. 2 of the Civil Code and Article 4 para. 2 of the Federal Constitution (see paragraphs 11 and 12 below). On 8 June 1989 the Federal Court allowed the appeal in part. While refusing to apply paragraph 2 of Article 30, which concerned only engaged couples and had no retrospective effect, it held that in the particular case there were important factors which justified applying paragraph 1 in order to allow the applicants to call themselves "Burghartz"; apart from the couple ’ s age and profession, account had to be taken of the differences between the relevant Swiss and German systems, which were made more acute by the fact that Basle was a frontier city. As to Mr Burghartz ’ s application to be allowed to bear the name "Schnyder Burghartz", no support for it could be found in Article 160 para. 2 of the Civil Code; the drafting history showed that the Swiss Parliament, out of a concern to preserve family unity and avoid a break with tradition, had never agreed to introduce absolute equality between spouses in the choice of name and had thus deliberately restricted to wives the right to add their own surnames to their husbands ’. This rule therefore could not avail by analogy a husband in a family known by the wife ’ s surname. There was, however, nothing to prevent Mr Burghartz from using a double-barrelled name (see paragraph 13 below) or even, informally, putting his surname before his wife ’ s. 10. According to the applicant, a large number of official documents, in particular the certificate of his doctorate in history, had not since then contained the "Schnyder" element of his surname. | The applicants were married in Germany in 1984 and, in accordance with German law they chose the wife’s surname, “Burghartz”, as their family name, the husband availing himself of his right to put his own surname in front of that and thus call himself “Schnyder Burghartz”. The Swiss registry office (Zivilstandsamt) having recorded “Schnyder” as their joint surname, the couple applied to substitute “Burghartz” as the family surname and “Schnyder Burghartz” as the second applicant’s surname. Before the Court, the applicants complained that the Swiss authorities had withheld from the second applicant the right to put his own surname before their family name although Swiss law afforded that possibility to married women who had chosen their husbands’ surname as their family name. They said that this resulted in discrimination on the ground of sex. |
640 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, the private company Mladina d.d. Ljubljana, whose registered office is in Ljubljana, is the publisher of the weekly magazine Mladina. 6. On 16 and 22 June 200 5 the National Assembly (hereinafter – “ Parliament ” ) examined a draft law on same-sex civil partnerships. At a later date it adopted the Registration of Same-Sex Civil Partnerships Act (hereinafter – “the Act”). During the parliamentary debate on the issue, certain deputies of the Slovenian National Party (hereinafter – “ the SNP ” ), which opposed legal recognition of same-sex partnerships, took the floor in order to express their disagreement with the proposed draft. 7. On 27 June 2005 the Mladina magazine published a one-page article entitled “Registration of Same-Sex Civil Partnerships Act adopted”, with the standfirst: “ Right-wingers full of pride, but according to non-governmental organisations the Act is not consistent with the Constitution”, summarising the parliamentary debate preceding the adoption of the Act. The first three paragraphs of the article read as follows : “ Last week, the second reading of the proposed Act on the registration of same-sex civil partnerships ended up as a crash course in narrow-mindedness, pervaded by a Stone Age mentality. Our elected representatives were so keen to reject amendments to the draft [and the] actual rights of same-sex oriented citizens that they decided to pass the Act at the third attempt within one single parliamentary session. On Wednesday, the Act came to fruition, the outcome being 44 votes to 3 ... The SNP ’ s gunslingers ... shone brilliantly during the explanation of their votes. [B.Z.] spouted forth all the same stupidities as at the previous reading (such as that the Act was completely unnecessary, that the Act had been extorted by marginal groups, that there were other groups which merited the legislature ’ s priority), and touched on the objections against his use of words such as ʻfaggotsʼ and ʻlesbiansʼ a week ago. He stated: ʻWhere I come from, we call them “ faggots ” and “ lesbians ”; in Primorska [a region in Slovenia], they are called “ kulotini ” and in Ljubljana they are “ gays ”. I am not someone who would change his way of speaking just because he has come to Ljubljana. In Štajerska [another region in Slovenia], we simply have faggots and lesbians. ʼ [S.P.], also from the SNP, assured with a playful smile that there was probably not a single person in the assembly hall who wished for the ‘ fruit of their loins to declare themselves to be what we are voting on today, with our rights ... in other words, none of us would want to have a son or a daughter who would opt for this kind of marriage ’. If our homeless people could follow the breadcrumb trail to Finland or even further, let these ladies and gentlemen also go there to marry. But the biggest victims of this law would be the children of such a marriage : ‘ Just imagine a child whose father comes to pick him up from school and greets him with “Heeeeey, I ’ ve come to take you hooooome! Have you got your coat on yet? ’ He accompanied this brilliant remark with a coffeehouse imitation which was probably supposed to clearly illustrate some orthodox understanding of a stereotypically effeminate and mannered faggot, whereas in reality [what it illustrated was] just the typical attitude of a cerebral bankrupt who is lucky to be living in a country with such a limited pool of human resources that a person of his characteristics can even end up in Parliament, when in a normal country worthy of any respect he could not even be a janitor in the average urban primary school.” 8. In the second half of the article, the author first described the responses of other parliamentarians to the SNP members ’ speeches, and in the last two paragraphs concluded with the views on the newly adopted Act expressed by the non-governmental organisations advocating for the rights of same-sex couples, which mainly deplored the fact that the Act accorded a very limited set of rights to these couples. It ended by reporting the announcement by the representatives of these organisations that they would be challenging the newly adopted Act before the Constitutional Court. 9. On 26 August 2005 the SNP member S.P. brought an action before the Ljubljana District Court for defamation of his honour and reputation against the applicant company, claiming that he had suffered severe mental distress due to the offensiveness of the article. He claimed that the depiction of him as “cerebral bankrupt” was objectively and subjectively offensive, its sole intent being to belittle him. 10. On 20 September 2005 the applicant company replied that it considered its actions to have been lawful, as a balance had to be struck between S.P. ’ s right to honour and reputation and its own right to the freedom of expression. It invoked the standards and case-law of the European Court of Human Rights regarding the freedom of the press to impart information on matters of public interest. The applicant company considered that S.P. ’ s statements in the parliamentary debate had amounted to an insulting attack which degraded homosexuals, and hence the criticism published in Mladina. Nevertheless, the critical article had not been aimed at belittling S.P. as a person, but constituted a reaction to his own extreme statements in similar terms. 11. On 28 February 2006 the Ljubljana District Court held an unsuccessful settlement hearing. 12. On 16 May 2006 another hearing was held at which the court heard S.P., who stated that he had not offended anyone with his remarks, nor had he wished to do so. He had taken the offensive remarks in Mladina as an attack on his character and had been very hurt by them, especially as he had become the subject of ridicule in his local community. 13. On the same date, the Ljubljana District Court handed down its judgment, in which it partially upheld S.P. ’ s claim and ordered the applicant company to pay him damages in the amount of 700,000 Slovenian Tolars ( 2,921.05 euros (EUR) ). The applicant company was also ordered to publish the introductory and operative part of the judgment in Mladina. The remainder of S.P. ’ s claim was dismissed. The court acknowledged that the applicant company had had the right to publish critical comments on S.P. ’ s conduct in the parliamentary debate; however, the term “cerebral bankrupt” had referred to his personal characteristics and was therefore objectively offensive. In the court ’ s opinion, the use of such offensive language did not simply serve the purpose of imparting information to the public. Moreover, the description in the article did not constitute a serious criticism of S.P. ’ s work. 14. As to S.P. ’ s conduct, the court held that the gestures he had used to mimic the behaviour of a homosexual man were simply reminiscent of gestures made by actors to convey the idea of homosexuality. The court neither found S.P. ’ s speech and conduct to be offensive to homosexuals, nor considered it to have been aimed at promoting prejudice and intolerance against them. It held that S.P. had merely expressed his opinion, which, wrong as it might have been, was not to be regarded as extreme and thus justifying the treatment in the impugned article. 15. Both parties appealed against the judgment before the Ljubljana Higher Court. 16. On 24 January 2007 the Ljubljana Higher Court dismissed the applicant company ’ s appeal. It upheld S.P. ’ s appeal in respect of the text to be published in Mladina informing the public of the judgment, but dismissed his claim for greater damages. The Higher Court upheld the District Court ’ s finding that the statements in the impugned article constituted an offensive judgment of S.P. ’ s personality which he was not required to endure. The court further held that, even assuming that S.P. ’ s speech had been offensive to homosexuals, that did not justify the applicant company ’ s crude response aimed at him personally. 17. On 10 November 20 07 the applicant company lodged a constitutional complaint with the Constitutional Court. It claimed, inter alia, that the impugned article was to be considered a political satire in which the author had merely expressed his opinion on S.P. ’ s conduct in a public parliamentary debate. It further maintained that the words “ typical attitude of a cerebral bankrupt” had not been aimed at S.P. as a person but at his mimicking of the gestures allegedly typical of homosexual men. 18. On 10 September 2009 the Constitutional Court, by a majority of six votes to three, dismissed the applicant company ’ s complaint, holding that the lower courts had struck a fair balance between its freedom of expression and S.P. ’ s personal dignity. The court acknowledged the broad boundaries associated with the freedom of the press, especially when reporting on matters of great public interest, but found on the facts of the case in issue that the lower courts had appropriately applied the criteria resulting from their own case-law and the case-law of the European Court of Human Rights. The court dismissed the applicant company ’ s assertion that the criticism in question had not been aimed at S.P. as a person but at his mimicking of homosexuals, concluding that the average reader would understand the remark as an assessment of S.P. ’ s intelligence and personal characteristics. 19. It also dismissed the applicant company ’ s argument that the article was to be regarded as a satire, as it was evident from the text that it was intended to inform the public about the content of the parliamentary debate and to express a critical opinion of the speeches of the individual deputies. As regards the applicant company ’ s argument that the offensive statement had been a response to S.P. ’ s own offensive remarks, the Constitutional Court acknowledged that in such cases sharper criticism might be permissible, but only if there was a sufficient factual basis for it. As the court found no substantive connection between S.P. ’ s speech and the assessment of his intellectual abilities, it concluded that the criticism was not justified. In the Constitutional Court ’ s view, the impugned article and its author ’ s offensive characterisation of S.P. had not contributed either to people being informed or to a socially responsible public discussion on the position of homosexuals. 20. Constitutional judge C.R. submitted a dissenting opinion in which he referred to a climate of general tolerance towards intolerant and offensive statements against homosexuals. He further expressed the view that the lower courts had been biased and also that the Constitutional Court had failed to appropriately apply the standards of freedom of the press developed in the case-law of the European Court of Human Rights. | This case concerned the applicant publisher’s complaint that it was ordered by the national courts to pay damages to a parliamentarian for insulting him in an article concerning a parliamentary debate on the legal recognition of same-sex relationships. The article was published in the publisher’s magazine in June 2005. The applicant complained, in particular, that the national courts had been unwilling to expose harmful, homophobic stereotypes and had not taken into consideration that the exaggerated, satirical style of the article was a reaction to the parliamentarian’s own controversial behaviour. |
704 | Dissolution or prohibition of political parties or associations | I. the circumstances of the case A. Formation of ÖZDEP 8. The Freedom and Democracy Party (ÖZDEP) was founded on 19 October 1992. Its constitution was lodged with the Ministry of the Interior the same day. Its programme included the following passages. “... Following the war of ‘Liberation’ waged jointly by Kurds, Turks and other national minorities, the Sultanate was abolished in Turkey and the Republic proclaimed. The sole aim of the Republic has been to establish national sovereignty. Efforts to unite Turkey with Europe have come to nothing. Turkey has not succeeded in lifting itself out of mediocrity. From the earliest days of the Republic, certain parties have had a monopoly on power along with the collaboration of civil and military bureaucrats. In order to preserve that monopoly, the policy of those in power has been to refuse to recognise the existence of the Kurdish people and to ignore its most legitimate rights. The dominant ‘Turkish’ philosophy has been maintained up to the present day, overriding the most natural rights and claims of the Kurdish people, by means of militaristic and chauvinistic propaganda and a policy of exile and destruction. State policy, based on a capitalist system designed to oppress minorities – particularly Kurdish minorities, but even Turkish ones – has been pursued in the name of modernisation and westernisation. Owing to this policy, which colours the political, economic and social aspects of Turkey’s territorial integrity, there is no possibility of this monopoly of State power being brought to an end. That power runs counter to the interests of the vast majority of the population. It uses force to impose the present situation on the people in order to preserve its economic interests. Thus, it blocks the way to any democratic process aimed at protecting the interests of Turkish and Kurdish workers. The Freedom and Democracy Party proposes to create a system ruled by peace and fraternity in which our peoples will be entitled to self-determination. The Freedom and Democracy Party uses political, democratic and ideological means to combat all fascist, fundamentalist, chauvinistic and racist movements or organisations hindering solidarity, unity and brotherhood between peoples. Both in domestic and foreign policy, the aim of the Freedom and Democracy Party is to protect the interests of our peoples and those of all workers. ÖZDEP is the guarantor of the cultural, occupational, economic and political values of the various national or religious minorities and of every socio-professional category. It seeks recognition of the right to form a political party. Our Party will guarantee the religious and national minorities the right to worship as they please, to practise their religion freely, to freedom of thought and to respect for their customs, cultures and languages. Every individual will be entitled to use the media, especially radio and television. ÖZDEP has proposals on how to determine and define the prerequisites for establishing a social order encompassing the Turkish and Kurdish peoples. ÖZDEP regards our peoples as the sole owners of the country’s wealth, natural wealth and mineral resources. ÖZDEP supports the just and legitimate struggle of the peoples for independence and freedom. It stands by them in this struggle. Our Party proposes the creation of a democratic assembly of representatives of the people elected by universal suffrage. This assembly will represent the interests of the Turkish people, the Kurdish people and any other minority. This popular and democratic assembly will have the same powers as the current legislature and will be the guarantor of our peoples’ national sovereignty. The media will be the moving force for the consolidation of fraternity and friendship between peoples. They will encourage a better approach to different cultures and languages and will guarantee the national identity of each sector of the population. They will be responsible for ensuring that the political, economic, social and cultural rights of the peoples are recognised. There will be no government interference in religious affairs, which will be placed in the hands of the relevant institutions. In order to preserve the right to self-determination of oppressed peoples, our Party will outlaw any form of cultural, military, political or economic aggression. The Freedom and Democracy Party is campaigning for the voluntary unification of the Kurdish and Turkish peoples, who participated in the foundation of the country. The Freedom and Democracy Party considers that there can be democracy only if the Kurdish problem is solved. This problem concerns every Turk and Kurd who supports freedom and democracy. The Freedom and Democracy Party favours a peaceful and democratic solution to the Kurdish problem, subject to the strict application of international instruments such as the Helsinki Final Act, the European Convention on Human Rights and the Universal Declaration of Human Rights. The Freedom and Democracy Party will fully respect the Kurdish people’s right to self-determination so that a democratic solution based on the self-determination and equality of peoples can be found. Currently, our legislation and the manner in which the legal system operates are inherently undemocratic, contrary to fundamental human rights and freedoms and based on class interests. They deny the Kurdish people an identity and forbid any form of workers’ organisation or association. They are racist and retrograde. An order will be established permitting the Turkish and Kurdish peoples and the minorities to develop and enjoy their particular cultures freely. Each people will be entitled to education in its mother tongue, that being an essential prerequisite for the development of a people and a nation. Everyone will have the right to basic education in his mother tongue. The education system from primary school to university will be based on education in one’s mother tongue. A person’s mother tongue shall be given precedence in court proceedings ...” B. The application to have ÖZDEP dissolved 9. On 29 January 1993, Principal State Counsel at the Court of Cassation (“Principal State Counsel”) applied to the Turkish Constitutional Court to have ÖZDEP dissolved on the grounds that it had infringed the principles of the Constitution and the Law on the regulation of political parties. He considered that the content and aims set out in the party’s programme sought to undermine the territorial integrity and secular nature of the State and the unity of the nation. 10. On 25 February 1993 the President of the Constitutional Court sent Principal State Counsel’s application to the Chairman of ÖZDEP inviting him to lodge his preliminary observations in defence. 11. On 29 March 1993 ÖZDEP’s lawyers filed preliminary written observations and requested a hearing. They argued, inter alia, that the Law on the regulation of political parties contained provisions that were contrary to the fundamental rights guaranteed by the Constitution. They also maintained that dissolving the party would infringe the provisions of international instruments such as the European Convention on Human Rights, the International Covenant on Civil and Political Rights, the Helsinki Final Act and the Charter of Paris for a New Europe. They submitted that it was unacceptable to force a political party, on pain of being dissolved, to promote an ideology which conformed to the Turkish Constitution. C. Dissolution of ÖZDEP 12. On 30 April 1993, while the Constitutional Court proceedings were still pending, a meeting of the founding members of ÖZDEP resolved to dissolve the party. 13. On 11 May 1993 Principal State Counsel lodged his submissions on the merits of the case with the Constitutional Court. Since ÖZDEP had gone into voluntary dissolution, it did not file any submissions on the merits. 14. On 14 July 1993 the Constitutional Court made an order dissolving ÖZDEP, notably on the ground that its programme was apt to undermine the territorial integrity of the State and the unity of the nation and violated both the Constitution and sections 78(a) and 81(a) and (b) of the Law on the regulation of political parties. The judgment was served on Principal State Counsel, the Speaker of the National Assembly and the Prime Minister’s Office. The Constitutional Court’s judgment was published in the Official Gazette on 14 February 1994. The Constitutional Court held, firstly, that, pursuant to section 108 of the Law on the regulation of political parties, ÖZDEP’s resolution to go into voluntary dissolution did not prevent that court from ruling on the merits of the case as it had been made after the commencement of the proceedings before it. As to the merits, the Constitutional Court began by reiterating the constitutional principles that all persons living on Turkish territory, whatever their ethnic origin, formed a whole united by their common culture. The sum of the persons who made up the Republic of Turkey was called the “Turkish nation”. The different ethnic groups making up the “Turkish nation” were not divided into a majority and minorities. The court reiterated that, under the Constitution, no political or legal distinction based on ethnic or racial origin could be made between citizens: all Turkish nationals, without distinction, could avail themselves of all civil, political and economic rights. With particular reference to Turkish citizens of Kurdish origin, the Constitutional Court held that in every region of Turkey such persons enjoyed the same rights as other Turkish citizens. That did not mean that the Constitution denied the existence of a Kurdish identity, since citizens of Kurdish origin were not forbidden to express their Kurdish identity. The Kurdish language could be used on all private premises, in workplaces, in the press and in works of art and literature. The Constitutional Court reiterated the principle that everyone was bound to observe the provisions of the Constitution even if they did not agree with them. The Constitution did not preclude the celebration of difference but forbade propaganda based on racial difference and aimed at destroying the constitutional order. It pointed out that by virtue of the Treaty of Lausanne having a separate language or ethnic origin was not by itself enough for a group to qualify as a minority. With regard to the content of ÖZDEP’s programme, the Constitutional Court observed that it was based on the assumption that there was a separate Kurdish people in Turkey with its own culture and language. The Kurds were portrayed in the programme as an oppressed people whose democratic rights were being completely ignored. According to the Constitutional Court, ÖZDEP called for a right to self-determination for the Kurds and supported their right to wage a “war of independence”. Its stance was similar to that of terrorist organisations and constituted in itself an incitement to insurrection. In relation to the principle of secularism, the Constitutional Court noted that ÖZDEP’s programme contained a proposal for the abolition of the Religious Affairs Department of the government on the ground that religious affairs should be under the control of the religious institutions themselves. After reiterating what was meant by the principle of secularism, the court said that advocating the abolition of the government Religious Affairs Department amounted to undermining the principle of secularism. It concluded that that aspect of ÖZDEP’s programme was contrary to section 89 of the Law on the regulation of political parties. The Constitutional Court pointed to the fact that the Charter of Paris for a New Europe condemned racism, ethnic hatred and terrorism and that the Helsinki Final Act guaranteed the inviolability of national frontiers and territorial integrity. It concluded that ÖZDEP’s activities were subject, inter alia, to the restrictions referred to in paragraph 2 of Article 11 and to Article 17 of the Convention. | The Freedom and Democracy Party (ÖZDEP) was founded in October 1992. In July 1993, the Turkish Constitutional Court made an order dissolving ÖZDEP. While the proceedings concerning the party’s dissolution – brought on the grounds that its programme sought to undermine the territorial integrity and secular nature of the State and the unity of the nation – were still pending, the founding members of the party resolved to dissolve it in order to protect themselves and the party leaders from the consequences of a dissolution order – namely a ban on their carrying on similar activities in other political parties. |
42 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1967 and lives in Larnod (France). 11. On 4 September 1993 the applicant married S.C., a Portuguese national. The couple had a child, Julien, born in 1995. A. Proceedings in the French courts 12. By a judgment of 19 February 1998, the Besançon tribunal de grande instance granted the couple a divorce based on S.C. ’ s fault and ordered that the child reside at the applicant ’ s home, with the mother to have rights of access. Earlier, on 6 August 1996, the applicant had already been granted interim custody of Julien by a decision of the same court. 13. On 3 June 1997 S.C. abducted Julien from his paternal grandmother ’ s home and took him with her to Portugal. The applicant filed a complaint against S.C. for child abduction and assault. By a judgment of the Besançon tribunal de grande instance of 12 June 1998, S.C. was found guilty and sentenced in absentia to one year ’ s imprisonment. A warrant was issued for her arrest. B. Proceedings in the Portuguese courts 1. Application for the child ’ s return 14. On 5 June 1997, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction and on the Convention on Judicial Cooperation between France and Portugal for the Protection of Minors of 20 July 1983, the applicant lodged an application for the child ’ s return with the French Ministry of Justice, which was the French “ Central Authority ” within the meaning of both instruments. On the same day, the French Central Authority requested the Institute for Social Reinsertion (“ the IRS ” ), which forms part of the Portuguese Ministry of Justice and is the Portuguese Central Authority, to secure the child ’ s return pursuant to the provisions of the Franco-Portuguese convention. 15. On 18 June 1997 the IRS referred the application to the prosecution service of the Oeiras judicial district, where the applicant had indicated that S.C. was living. On 16 July 1997 the prosecution service applied to that court for the judicial return ( entrega judicial ) of the child pursuant to section 191 et seq. of the Minors Act ( Organização Tutelar de Menores ) and relying on the above-mentioned Franco-Portuguese cooperation convention. 16. On 17 July 1997 the judge of the Third Civil Division of the Oeiras District Court, to which the case had been allocated, summoned the child ’ s mother to appear before the court to make submissions concerning the prosecution ’ s application. Registered letters with acknowledgment of receipt were sent on 17 and 22 July 1997 to the address given by the applicant. However, both letters were returned to the court with the acknowledgments of receipt unsigned and unclaimed. On 27 August 1997 the judge, at the prosecution ’ s request, asked the police to find out where Julien ’ s mother was living. On 10 September and 6 October 1997 respectively the security police and the republican national guard informed the court that S.C. was not living at the stated address. 17. On 23 September 1997 the IRS asked the Oeiras District Court for information about the progress of the proceedings. The judge replied on 6 October 1997 to the effect that the child ’ s mother had not yet been found. 18. On 21 October 1997 the prosecution service asked the judge to write to the Lisbon social security office to request information concerning S.C. ’ s address and workplace. On 27 October 1997 the judge ordered the registry to send the letter in question, which was sent on 7 November 1997. On 27 November 1997 the social security office replied that it had no record of S.C. on file. 19. On 5 December 1997 the judge asked the IRS to find out S.C. ’ s current address. When it was reported that she might be in the Oporto area, the relevant social security office was contacted but indicated in a letter of 12 January 1998 that it had no record of her. 20. On 10 March 19 9 8 the Second Civil Division sent the Third Civil Division a copy of the decision taken on that day as part of proceedings for the award of parental responsibility (see paragraph 47 below). On 26 March 1998 the judge sent a copy of the decision to the prosecution service, pointing out that the address from which S.C. had been summoned to appear in those proceedings was the same as that originally given by the applicant. 21. On 27 March 1998 the prosecution service asked the judge to seek information from Portugal Electricity and Portugal Telecom. On 13 and 20 May 1998 those companies replied that they did not have any contracts in S.C. ’ s name. 22. On 25 May 1998 the judge insisted that S.C. be summoned from the address in question. The registered letter sent for that purpose was however returned to sender. 23. On 2 July 1998 S.C. informed the court that she had applied to the Oeiras District Court ( First Civil Division ) for a transfer of parental responsibility for Julien. 24. On 6 July 1998 the judge ordered a court bailiff to compel S.C. to appear. The bailiff went to the address in question on 1 September 1998 to be told, by one of S.C. ’ s aunts, that S.C. did not live there. S.C. ’ s aunt also said that she did not know her niece ’ s current address. 25. On 2 September 1998 the judge asked the civil identification services of the Ministry of Justice for information about S.C. ’ s whereabouts. 26. By a letter of 2 September 1998 the IRS informed the court that they had asked the police to discover S.C. ’ s whereabouts. They observed that the police had since told them that the child ’ s mother had brought proceedings for a transfer of parental responsibility for Julien and pointed out that it was now possible to locate S.C. by the address she had given when she brought those proceedings. 27. By an order of 28 September 1998 the judge decided to ask the police again for S.C. ’ s current address. He also asked the registry to inform the First Civil Division of the existence of the application for the child ’ s return with a view to securing a stay of the proceedings for the transfer of parental responsibility then pending before that division. 28. On 11 November 1998 the applicant, through his representative, filed an ad litem power of attorney and a request to be kept informed of the steps in the proceedings. He also indicated that he had lodged a criminal complaint against S.C. By a decision of 16 November 1998, the judge rejected the applicant ’ s request on the ground that he was not a party to the proceedings. 29. On 27 November 1998 the security police indicated that the address in question was that of S.C. ’ s parents, who claimed that they did not know her current address. On 11 December 1998 the judge again decided to seek information from Portugal Electricity and Portugal Telecom and from the social security offices of Lisbon, Oporto, Coimbra and Faro. Between January and March 1999 all these organisations replied that they had no record of S.C. on their files. On 18 March 1999 the judge again asked the police for information about S.C. ’ s current address. On 9 April 1999 the security police indicated that the address was unknown. 30. On 1 9 April 1999 the IRS sent the court a copy of a police report according to which Julien might be found in a flat recently purchased by one of S.C. ’ s sisters in Algueirão (Sintra district ). 31. Acting on information supplied by the IRS the applicant travelled to Portugal, where he claimed to have seen his son and a third party in the apartment in question on 25 April 1999. He informed the French consulate general in Lisbon, which asked the Portuguese Ministry of Justice to contact the police and the Oeiras District Court as a matter of urgency in order to secure the child ’ s return. On 26 April 1999 the IRS informed the court and asked it to take all necessary steps to secure the child ’ s return. On 27 April 1999 the judge ordered that Julien be immediately handed over to the IRS and issued a warrant to that effect. On 30 April 1999 the IRS advised the court that the republican national guard had been to the address in question on the previous day. However, the warrant did not give it the power to force entry into the flat and, since Julien ’ s mother had refused to open the door, it had not been possible to return the child. 32. The judge subsequently asked the republican national guard why the warrant had not been executed. On 1 June 1999 the national guard stated that officers had been to the address in question several times but no one had answered the door. 33. In the meantime, on 17 May 1999, S.C. applied for the proceedings to be discontinued, relying on Article 2 0 of the Franco-Portuguese cooperation convention and submitting that Julien was fully integrated in his new environment. 34. The judge delivered his judgment on 15 June 1999. First he found that S.C. should be regarded as having been properly summoned to appear because she had already intervened in the proceedings. He then rejected her application for a discontinuation and ruled that Julien should be handed over immediately to the IRS. Lastly, he ruled that if she failed to comply with the decision S.C. was liable to be prosecuted under section 191(4) of the Minors Act for non-compliance with a legal order ( desobediência ). 35. On 25 June 1999 S.C. appealed against that judgment to the Lisbon Court of Appeal ( Tribunal da Relação ). On 29 June 1999 the judge found the appeal admissible and ordered that it should be referred, without suspensive effect, to the Court of Appeal. The Court of Appeal dismissed the appeal by a ruling of 20 January 2000. 36. On 7 February 2000 S.C. appealed on points of law to the Supreme Court ( Supremo Tribunal de Justiça ), but on 7 April 2000 her appeal was ruled to have lapsed ( deserto ) for want of pleadings having been filed. 37. On 29 May 2000 the Oeiras District Court judge asked a bailiff to warn S.C. that if she failed to hand Julien over to the IRS she would be prosecuted for non-compliance. On 9 June 2000 the bailiff reported that no one seemed to be living at the address indicated. On 20 June 2000 the judge again asked the police for information about S.C. ’ s current address. 38. On 14 December 2001 the police found Julien and S.C. On the same day the judge ordered Julien to be placed in a children ’ s home under the IRS ’ s supervision. S.C. was permitted to remain with Julien in the children ’ s home. The principal of the children ’ s home then refused to hand Julien over to the applicant, without a “court order to that effect ”. On that day S.C. lodged a summary application with the Oeiras District Court seeking to prevent Julien being handed over to the applicant. The applicant claimed that he was not told of the outcome of that application. On 21 December 2001 Julien was handed over to S.C. in accordance with the decision of the Cascais Family Court on the same day (see paragraph 50 below). 39. On 19 December 2001 the prosecution service asked the judge to suspend the 15 June 1999 judgment, on the ground that, after so much time had elapsed, Julien ought to be examined by child psychiatrists before being handed over to the applicant. 40. By a decision of the same day the judge dismissed that request, on the ground that the disputed judgment had already become res judicata. 41. On 21 December 2001 the prosecution service appealed to the Lisbon Court of Appeal. By a judgment of 9 April 2002, the Court of Appeal quashed the disputed decision. It considered, among other things, that Julien already seemed well settled in his new environment and that the examinations in question were entirely appropriate. 42. On 11 July 2002 the Oeiras District Court judge asked the Lisbon Institute of Forensic Medicine to proceed with the examinations. 43. On 4 December 2002 the applicant was advised that Julien would be undergoing a medical examination on 14 February 2003. The applicant has not been informed of the results of those examinations. The proceedings are still pending. 2. The applications for determination of parental responsibility (a) In the Oeiras District Court 44. In April 1997 the prosecution service applied to the Oeiras District Court for the terms of parental responsibility for Julien to be fixed. The case was allocated to the Second Civil Division of that court. 45. S.C. was summoned to appear from the address given by the applicant when he lodged his application for the child ’ s return, which was pending before the Third Civil Division of the Oeiras District Court. 46. On an unspecified date the prosecution service asked the judge to stay the proceedings in view of the fact that the application for the child ’ s return had not yet been decided. 47. By an order of 10 March 1998 the judge stayed the proceedings. 48. Further to the 15 June 1999 ruling by the Oeiras District Court, the judge issued a decision on 5 November 2000 to discontinue the proceedings. (b) In the Cascais Family Court 49. On 21 December 2001 the prosecution service lodged a further application for determination of the terms of parental responsibility for Julien at the Cascais Family Court. It sought a variation of the Besançon tribunal de grande instance ’ s judgment of 19 February 1998 on the ground that the child had settled in his new environment. It also asked the court to grant interim custody of Julien to S.C. 50. By a decision of the same day the court granted S.C. interim custody of Julien. 51. On 15 May 2002 a meeting ( conferência ) was arranged between the parents. Following that meeting, the court decided that the applicant could be granted rights of access. The applicant was thus able to visit Julien at S.C. ’ s home on 17, 18 and 19 May 2002 for a few hours. 52. The proceedings are still pending. 3. Contact between the French and Portuguese authorities 53. The French Central Authority had remained in contact with the IRS throughout all the above-mentioned proceedings. The French embassy in Lisbon and the French consulate general in Lisbon sent several requests to the Portuguese authorities for information on the progress of the case. 54. Thus, on 28 March 2000 the French embassy in Lisbon asked the Portuguese Foreign Ministry to intervene in order to “ expedite enforcement of the Oeiras District Court ’ s decision of 15 June 1999 requiring Mrs [ S.C. ] to hand over the child Julien Maire to his father immediately ... pursuant to the Convention on Judicial Cooperation between Portugal and France ... The police must ... now be formally required actively to search for the child ... whose mother ’ s family in Oeiras seem to know where he is because last year he was located in a flat belonging to his aunt in Algueirão”. 55. By a letter of 11 June 2001 the consul general informed the applicant as follows : “ ... the Ambassador discussed your case with the director of the [ Portuguese ] Minister of Justice ’ s private office and with the public prosecutor. What emerged from those discussions is that recognition by the Portuguese courts of the French court decision to convict your former wife of a criminal offence is a complex issue and may not be satisfactorily resolved. However, ... the decision of the Portuguese civil courts that the child should be returned to you is final. The Oeiras prosecutor has asked the IRS and the security [ police ] to carry out a search. This search ... has not so far been successful, which is why the Portuguese authorities fear that mother and child may have left Portugal. Our Ambassador was nonetheless advised that the search would continue for as long as there was no proof that they had left the country ... ” | The applicant, a French national, complained of the Portuguese authorities’ inactivity and negligence in failing to enforce decisions of the French courts awarding him custody of his child whom the mother, a Portuguese national, had abducted and taken with her to Portugal. |
184 | State’s duty to protect physical and psychological integrity of individuals | I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant, Mrs Valentina Nikolaeva Bevacqua, is a Bulgarian national who was born in 1974 and at the relevant time lived in Sofia. In 2003 or 2004 she moved to Italy. The application is submitted by the first applicant on her own behalf and also on behalf of her son S. (“the second applicant”), a minor, who was born in 1997. 6. The first applicant married Mr N. in 1995 and gave birth to S. in January 1997. 7. Later, the relations between the spouses soured, Mr N. became aggressive and on 1 March 2000 the first applicant left the family home with her son and moved into her parents ’ apartment. On the same day the first applicant filed for divorce and sought an interim custody order, stating, inter alia, that Mr N. often used offensive language, battered her “without any reason” and did not contribute to the household budget. 8. On 7 March 2000 a judge at the Sofia District Court examined the case file and fixed the date of the first hearing for 11 April 2000, without examining the request for an interim order. 9. During the first two months following the separation, Mr N. visited his son every day and took him to his apartment on weekends, with the first applicant ’ s consent. 10. On 11 April 2000 the District Court could not proceed with the examination of the divorce case as Mr N. had been taken ill and did not appear. 11. On 6 May 2000 Mr N. did not bring S. home after a walk. He telephoned the first applicant and told her that his son would live with him. For the next six days he refused the first applicant ’ s requests for meetings or telephone conversations with her son. 12. On 9 May 2000 the first applicant complained to the prosecuting authorities. The relevant prosecutor apparently gave instructions that Mr N. should be summoned and served with an official warning. That was not done until 22 June 2000. 13. On 12 May 2000 the first applicant went to see her son at the kindergarten and took him to her home. In the evening Mr N. telephoned and then appeared outside the first applicant ’ s home. He was shouting and banging on the door, thus frightening the child and the first applicant. Mr N. eventually managed to enter the apartment, when the first applicant ’ s father came home. He allegedly hit or pushed the first applicant in the presence of her parents and the child. At one point Mr N. seized his son, but the first applicant was trying to hold him. The child was screaming. Eventually, Mr N. left with the child. 14. On 18 May 2000 the first applicant visited a forensic doctor who noted a small bruise on her face and a bruise on her hip. On 25 May 2000 she filed a complaint with the District Prosecutor ’ s Office and enclosed the medical certificate. 15. The first applicant also sought the help of a non-governmental organisation assisting female victims of domestic violence. She was offered the possibility to stay with her son in a hostel for such victims in Bourgas. On 25 May 2000 the first applicant collected her son from the kindergarten and travelled with him to Bourgas. She spent four days at the hostel there without disclosing her whereabouts to Mr N. 16. Mr N. complained to the local Juveniles Pedagogic Unit (see paragraph 43 below), stating that the first applicant had abducted their son. The first applicant was summoned by the police. On 31 May 2000 she returned to Sofia and met the district juveniles inspector. She explained that she had been the victim of violence and that her son ’ s health was in danger because of the father ’ s violent behaviour. It appears that the inspector disbelieved the first applicant ’ s version of the events and allegedly insisted that she could be prosecuted for having abducted her son. 17. On the same day in the evening Mr N. visited the first applicant in her home, allegedly threatened her and took their son away. 18. On the following day, 1 June 2000, the juveniles inspector organised a meeting between the first applicant, her former husband and the child. According to the first applicant, the meeting lasted four hours. The child was asked whether he preferred to be with his mother or with his father. The meeting resulted in an oral agreement between the parents, according to which the child would live with his father for a month and then with his mother for another month. As a result of this agreement Mr N. withdrew his complaint for abduction. 19. According to the first applicant, the agreement was only implemented for a very limited period. 20. In the following days Mr N. allowed contacts between the first applicant and her son. On an unspecified date the child was ill and the first applicant took care of him in Mr N. ’ s apartment. 21. On 13 June 2000 the first applicant appeared before the District Court for a hearing in the divorce proceedings. She was not legally represented. Mr N. did not appear. His lawyer was present. The first applicant stated that she wished to pursue her claims. The court did not examine the request for an interim order. The first applicant did not raise the issue. The court fixed a time-limit for reconciliation, as required by law, and adjourned the examination of the case until 29 September 2000. 22. On 22 June 2000 the police summoned Mr N. and gave him an official warning in relation to the first applicant ’ s complaint of 9 May 2000 (see paragraph 12 above). As a result Mr N. allegedly became aggressive. On 28 June 2000, when he brought S. for a visit to his mother ’ s apartment, Mr N. reacted angrily to remarks by the first applicant and hit her in their son ’ s presence. On the next day the first applicant visited a medical doctor who noted a bruise on her left eyelid and a swollen cheek. She also reported pain in her right wrist. 23. On 3 and 6 July 2000 the first applicant complained to the juveniles inspector at the local police station but was told that nothing could be done and that the dispute should be decided by the courts. 24. In July and August 2000 the first applicant complained to the Ministry of the Interior, stating that they should assist her to obtain the custody of her child and that measures should be taken to protect her son, who was in danger because Mr N. was not taking care of him properly and was aggressive towards her. The first applicant complained that nothing had been done in this respect by the police. In August 2000 she received replies stating that the matter had been examined and that no unlawful conduct on the part of police officers had been noted. The police had done what they could and the remaining issues concerned a private dispute. 25. On 11 September 2000 the first applicant filed written submissions with the District Court reiterating her request for an interim order. She informed the court about the relevant events since 6 May 2000 and referred to her complaints to the prosecuting authorities. She also stated that her son had been living in conditions which endangered his development. The first applicant sought leave to have two witnesses examined in this respect. 26. On 12 September 2000 the judge examined the applicant ’ s submissions in private and decided that the request for an interim order should be dealt with on 12 October 2000, not at the hearing fixed for 26 September 2000. 27. On 26 September 2000 the District Court held a hearing in the divorce proceedings. It noted the failure of the parties to reconcile and fixed a hearing on the merits for 14 November 2000. 28. On 12 October 2000 the District Court held a hearing on the issue of interim measures. Mr N. requested that the files of the prosecutors and the police who had examined the first applicant ’ s complaints be admitted in evidence. He stated that those authorities had heard impartial witnesses – several neighbours – and had convincingly established that the first applicant ’ s allegations about physical violence were unfounded. The first applicant ’ s lawyer objected, stating that the files could be relevant to the merits of the divorce proceedings but should not be examined in the interim measures procedure. The court decided to adjourn the hearing until 14 November 2000 in order to allow the production of the prosecutors ’ files. 29. On 14 November 2000 the District Court dealt with the request for an interim order. It heard one witness for each party. The first applicant ’ s father, who was heard as a witness, confirmed that Mr N. had been aggressive on two occasions and that quarrels often erupted between the child ’ s parents. A relative of Mr N. testified that he took good care of the child. The first applicant also presented a written opinion by a psycho-therapist working for the non-governmental organisation whose help she had solicited. The therapist described the first applicant ’ s visits to the centre for victims of domestic violence and stated that in her opinion the first applicant had suffered a strong emotional upset as a result of the behaviour of Mr N. and the authorities ’ passive attitude. Mr N. disputed the statements contained in the written opinion. The court decided that that was tantamount to contesting the authenticity of a document and invited the parties to adduce evidence in this respect. Having regard to the need to give the parties time to adduce such evidence and noting that the prosecutors ’ files concerning the applicants ’ complaints had not been transmitted to it, the District Court adjourned the matter until 12 December 2000. The hearing listed for 12 December 2000 was later adjourned on unspecified grounds. 30. The next hearing was held on 13 February 2001. In relation to the proceedings concerning the authenticity of the psycho-therapist ’ s written opinion, the first applicant ’ s lawyer presented documents demonstrating that the non-governmental organisation for which the therapist worked had been registered in 1997. Mr N. ’ s lawyer stated that in accordance with legislation in force since 1 January 2001 non-governmental organisations needed re-registration. On that basis he objected to the admission in evidence of the written opinion of the psycho-therapist. The court interpreted that objection as a challenge to the authenticity of the registration documents and invited the parties to adduce evidence in that respect. 31. At that point, the first applicant withdrew her request and asked the court to rule on the merits of the divorce claims, including the child custody claim. Thereupon, the court terminated the interim measures proceedings. It then heard two witnesses. A neighbour testified that she had heard the spouses quarrelling often in the past and had seen bruises on the first applicant ’ s body. The latter had complained that Mr N. battered her. A colleague of Mr N. testified that he had never seen him being aggressive. The court also admitted in evidence the prosecutors ’ files concerning the first applicant ’ s complaints submitted in 2000. As the parties sought leave to examine other witnesses, the court adjourned the hearing until 24 April 2001. 32. From the summer of 2000 the first applicant could only see her son at his kindergarten as the visits to Mr N. ’ s home created tension. On 7 March 2001 she collected her son and brought him to her home. Mr N. complained to the prosecution authorities and the police and also wrote to the judge dealing with the divorce proceedings. As a result, on 19 March and 17 April 2001 the first applicant was summoned by the police and given official warnings. According to the first applicant, Mr N. also threatened her with physical violence but she kept the child. According to Mr N., on 11 March 2001 in the evening he was attacked by men hired by the first applicant, in her presence. 33. The last hearing in the divorce proceedings was held on 24 April 2001. In accordance with the Child Protection Act (see paragraph 47 below), an expert of the newly created local Social Care Office gave an opinion after having studied the file and met the child. He reported that the child was afraid of his father as he had battered his mother and that the child preferred to live with his mother. 34. By judgment of 23 May 2001 the District Court pronounced the divorce and found that both spouses had been responsible for the failure of their marriage. The court further considered that both parties had been good parents but that in view of the low age of the boy he needed his mother. Therefore, the first applicant obtained custody of her child and Mr N. was given visiting rights. 35. Mr N. appealed, arguing that the allegations that he had been violent were untrue and that he had always cared better for his child. 36. In the appeal proceedings the Sofia City Court held a hearing on 19 March 2002. It heard two witnesses who confirmed Mr N. ’ s aggressive behaviour. 37. On 21 March 2002 the Sofia City Court upheld the lower court ’ s judgment but considered that there was ample evidence that Mr N. had been aggressive and had battered the first applicant during their marriage. Such behaviour was a bad example for a young boy to witness. The first applicant was therefore better suited to raise the child. 38. On 18 June 2002 the first applicant visited Mr N. ’ s apartment, accompanied by two friends, to collect her belongings. Her former husband became aggressive and battered her. On the following day the first applicant visited a forensic doctor who noted bruises on her face, right arm and armpit and her left hip. She complained to the prosecution authorities, which by decisions of October and December 2002 and January 2003 refused to institute criminal proceedings against Mr N., noting that it was open to the first applicant to bring private prosecution proceedings, as the alleged injuries fell into the category of light bodily injuries. | The first applicant, who claimed she was regularly battered by her husband, left him and filed for divorce, taking their three-year-old son (the second applicant) with her. However, she maintained that her husband continued to beat her. She spent four days in a shelter for abused women with her son but was allegedly warned that she could face prosecution for abducting the boy, leading to a court order for shared custody, which, she stated, her husband did not respect. Pressing charges against her husband for assault allegedly provoked further violence. Her requests for interim custody measures were not treated as priority and she finally obtained custody only when her divorce was pronounced more than a year later. The following year she was again battered by her ex-husband and her requests for a criminal prosecution were rejected on the ground that it was a “private matter” requiring a private prosecution. |
257 | Ill-treatment by prison officers | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, a Turkish national, was born in 1949 and is currently being held in İmralı Prison. 6. The facts of the case up to 12 May 2005 were presented by the Court in the Öcalan v. Turkey judgment ([GC], no. 46221/99, ECHR 2005 ‑ IV). They may be summarised as follows. 7. On 15 February 1999 the applicant was arrested by members of the Turkish security forces in an aircraft in the international area of Nairobi airport. The applicant was returned to Turkey from Kenya and taken into custody at İmralı Prison on 16 February 1999. The inmates at this prison had meanwhile been transferred to other prisons. 8. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial. A. The trial 9. By a judgment of 29 June 1999, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey ’ s territory and of training and leading a gang of armed terrorists for that purpose, and sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of an illegal organisation, namely the PKK ( the Workers ’ Party of Kurdistan – hereafter “ the PKK ” ). The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court reiterated that the applicant had acknowledged that the Turkish Government ’ s estimate of the number of those killed (almost 30, 000) or wounded as a result of the PKK ’ s activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence and the major, pressing threat to the country that those acts posed. 10. By a judgment adopted on 22 November 1999 and delivered on 25 November 1999, the Court of Cassation upheld the judgment of 29 June 1999 in its entirety. 11. In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism. By Law no. 4771, published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison. 12. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant ’ s death sentence to life imprisonment. 13. On 20 February 2006 Turkey ratified Protocol No. 13 concerning the abolition of the death penalty in all circumstances. B. Conditions of detention after 12 May 2005 1. Conditions of detention in İmralı Prison 14. The applicant ’ s conditions of detention in İmralı Prison before 12 May 2005 are described in the judgment of the same date ( see Öcalan, cited above, §§ 192-196). 15. Furthermore, the applicant was the sole inmate of İmralı Prison until 17 November 2009, when five further individuals were transferred to it; all the prisoners, including the applicant, were then housed in a new block which had just been built. 16. In May 2007 and January 2010, that is to say after the Court ’ s judgment of 12 May 2005, delegations from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) visited İmralı Prison. ( a) Before 17 November 2009 17. Before 17 November 2009 the cell which the applicant occupied alone measured approximately 13 sq. m, and was equipped with a bed, a table, a chair and a shelf. The cell was air- conditioned and had a partially partitioned sanitary annex. There was a window overlooking an enclosed yard and the cell had adequate access to natural light and adequate artificial lighting. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp. 18. The time granted to the applicant to leave his cell and use the exercise yard ( measuring approximately 45 sq. m ), which is walled in and covered with mesh, was limited to one hour daily ( divided into two 30-minute periods, one in the morning and the other in the afternoon ). 19. The applicant was not in sensory isolation or solitary confinement. As he was the only inmate of the prison, his only contacts were with the members of staff working there, who were only allowed to talk to him about subjects falling within the scope of their duties and relating to everyday life in the prison. 20. The applicant had access to books and a radio which could only receive State broadcasts. He was not allowed to have a television set in his cell on the grounds that he was a dangerous prisoner and a member of an illegal organisation, and was prone to commit recurrent disciplinary offences. Nor was he given access to a telephone, for the same reasons. 21. The applicant, who had restricted access to daily and weekly newspapers, was allowed a maximum of three papers in his cell at any one time. The newspapers were often several days old. In fact, he received them once a week, from his family or his lawyers. In the absence of visits from family members and lawyers ( owing to the inaccessibility of the island ), the applicant often spent long periods without access to recent newspapers. Those papers which he did receive had always been extensively censored. 22. The applicant was allowed to correspond with the outside world under the supervision of the prison authorities. The mail which he received was verified and censored. Correspondence with the outside was occasionally interrupted. 23. The applicant remained in the same cell from the date of his transfer to İmralı Prison – after his arrest on 16 February 1999 – until 17 November 2009, that is to say for almost ten years nine months. ( b) Since 17 November 2009 24. In order to comply with the requests put forward by the CPT and put an end to the applicant ’ s relative social isolation, the governmental authorities built a number of new blocks inside the grounds of İmralı Prison. On 17 November 2009 the applicant and five other inmates transferred from other prisons were moved to these new facilities. 25. Since that date the applicant has been on his own in a cell with an area of 9. 8 sq. m ( living space), with a further 2 sq. m of sanitary facilities, comprising a bed, a small table, two chairs, a metal cupboard and a kitchenette with a washbasin. The building containing the cells is properly damp-proofed. According to the CPT, although the applicant ’ s cell has a 1 m x 0. 5 m window and a partly glazed door, both opening on to an enclosed yard, it has insufficient direct sunlight because of the 6 - m -high wall surrounding the yard. The CPT ’ s proposal to lower the wall has not yet been accepted by the Government, whose experts have certified that the cell receives enough natural light. 26. The prison is equipped with a sports room with a ping ‑ pong table and two other rooms with chairs and tables, all three rooms enjoying plentiful natural daylight. Every inmate, including the applicant, has two hours of outdoors exercise every day alone in the exercise yard reserved for each cell. Moreover, all the prisoners can spend one hour per week alone in a recreation room ( where no specific activities are on offer ) and two hours per month alone in the prison library. Furthermore, every prisoner takes part in collective activities, including one hour ’ s conversation per week with the other prisoners. 27. Following its visit in January 2010 the CPT observed that the prison regime applied to the applicant was only a very modest step in the right direction, particularly as compared to the regime applied in the other F-type prisons for the same category of convicted prisoners, who could engage in outdoor activities all day long, with non-supervised collective activities with the other prisoners for between three and seven days a week. 28. In the light of these observations, the authorities responsible for İmralı Prison undertook to relax the regime in question, so that the İmralı inmates, including the applicant, can now engage alone in out-of-cell activities for four hours per day, receive newspapers twice (instead of once) a week and spend three hours (instead of one) per week together to talk to each other. All the İmralı inmates can engage, for one hour per week, in any of the following collective activities : painting and handicraft activities, table tennis, chess, volleyball and basketball. According to the prison registers, the applicant in fact plays volleyball and basketball but does not take part in the other activities. The prison authorities also informed the CPT that they were considering providing inmates with two hours per week of additional collective activities ( painting/ handicraft, board games and sport). The applicant therefore apparently spends a great deal of time outside his cell, that is to say, depending on his choice of collective activity, up to a maximum of 38 hours per week, including a maximum of ten hours in the company of the other prisoners. 29. Since 20 March 2010, in the wake of new technical arrangements, the applicant, like the other İmralı inmates, has been allowed ten minutes ’ telephone calls to the outside every fortnight. 30. In its report of 9 July 2010 the CPT recommended that the Government should ensure that the applicant could accompany the other inmates for outdoor activities, and that he and the other prisoners could spend a reasonable part of the day ( eight hours or more ) outside their cells, engaged in purposeful activities of a varied nature. The CPT also recommended allowing the applicant to have a television set in his cell, like all other persons held in high- security prisons. The prison authorities did not act on these latter recommendations on the grounds that the applicant still held dangerous prisoner status and failed to comply with the prison rules, particularly during visits by his lawyers. On 12 January 2012 the applicant was supplied with a television set. 2. Restrictions to visits by the applicant ’ s lawyers and relatives ( a) Visit frequency 31. The applicant has received many visits from his lawyers and relatives, but not as many as he and his visitors would have liked, mainly because of “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland ” and “ the inability of the boats to cope with prevailing weather conditions ”. 32. In fact, the old ferry boat İmralı 9 was still in service but could only sail when there was little wind. The larger ferry boat, Tuzla, which the Government had promised when the previous Öcalan case was pending before the Grand Chamber of the Court, began operating in 2006. The Tuzla, being better suited than the İmralı 9 to difficult weather conditions, provides more frequent crossings between İmralı Island and the mainland. It sometimes suffers technical breakdowns, entailing repairs which sometimes take several weeks. 33. As regards visits, between March and September 2006, for example, twenty-one out of thirty-one requests for visits were refused. These refusals continued into October 2006, with five out of six requests being refused, and November 2006, with six out of ten requests refused. After a brief improvement in December 2006 ( one out of six requests refused ), January 2007 ( two out of six requests refused ) and February 2007 ( all four requests granted ), visit frequency once again dropped off in March 2007 (six out of eight requests refused ) and April 2007 ( four out of five requests refused ), picking up again in May 2007 ( one out of five requests refused ) and June 2007 ( one out of four requests refused ). The number of family visits totalled 14 in 2005, 13 in 2006 and seven in 2007. In fact, between 16 February 1999 and September 2007, the applicant received 126 visits from his brothers and sisters and 675 from his lawyers or advisers. 34. For the remainder of 2007 and in 2008, 2009 and, broadly speaking, 2010, the frequency of visits by lawyers and members of the applicant ’ s family regularly increased. In 2009, for example, forty-two visits out of the fifty-two requested took place on the scheduled date or the day after ( because of unfavourable weather conditions). 35. In 2011 and 2012 the ratio of refusals to requests increased significantly. In 2011, for example, the applicant only received two family visits out of the six requested. Again in 2011, he only received twenty-three of the sixty -seven requested visits by his lawyers. Three lawyers ’ visits took place in January, two in February, five in March, three in April, four in May, four in June and two in July 2011. Between August and December 2011 the applicant received no visits apart from one family visit on 12 October 2011, with thirty-three refusals. The prison authorities explained their refusals by poor weather conditions and ferry breakdowns. In 2012 the applicant received a few visits from his brother, and none from his lawyers. ( b) Visits by lawyers 36. As a general rule, persons in prison in Turkey can talk to their lawyers on working days, during working hours, without any restrictions as regards frequency over any given period. Since İmralı Island is only accessible by means of the shuttle boat provided by the İmralı Prison administration, the applicant ’ s lawyers ’ visits, in practice, always took place on a Wednesday, the day of the crossing. i. Procedure during visits by the applicant ’ s lawyers 37. As a general rule, prisoners can communicate with their lawyers completely confidentially, without supervision. On 1 June 2005, however, Law no. 5275 on the enforcement of sentences and preventive measures came into force, replacing the previous legislation on this matter. Under section 59 of the new Law, if it emerges from documents and other evidence that visits by lawyers to a person convicted of organised crime are serving as a means of communication within the criminal organisation in question, the post-sentencing judge may, at the request of the prosecution, impose the following measures: presence of an official when the convicted prisoner is talking to his lawyers, verification of documents exchanged between the prisoner and his lawyers during such visits, and /or confiscation of all or some of these documents by the judge. 38. On 1 June 2005 the applicant was visited by his lawyers. Just before the interview the prison authorities communicated to the applicant and his lawyers a decision by the Bursa post- sentencing judge applying section 59 of Law no. 5275 to that visit. An officer was therefore present during the interview, the conversation between the applicant and his lawyers was tape-recorded and the documents supplied by the lawyers were submitted to the judge for examination. 39. In order to protest against the new procedure, the applicant interrupted the interview after a quarter of an hour and asked his lawyers to pay no further visits to him until the said procedure had been revoked. He informed the prison authorities that the procedure infringed the confidentiality of the interview between the lawyers and their client and “ rendered the visit and the interview pointless in terms of preparing his defence ”. 40. During subsequent visits an official was in attendance during interviews. Moreover, the conversation between the applicant and his lawyers was again tape-recorded and submitted to the post-sentencing judge for examination. 41. The applicant ’ s lawyers also lodged an appeal with the Bursa Assize Court against the Bursa post-sentencing judge ’ s decision ordering attendance by an officer during interviews and the recording of the conversations. By decisions of 27 April and 9 June 2006, the Assize Court dismissed the appeal on the grounds that the impugned measures were geared to preventing the transmission of orders within a terrorist organisation, that they did not affect the applicant ’ s defence rights and that in any case the transcription of the conversations showed that they had not concerned the applicant ’ s defence in any set of proceedings but the internal functioning of the PKK and the strategy to be adopted by this illegal organisation. 42. During the lawyers ’ visit on 29 March 2006, one of the officers present in the room in which the interview was taking place interrupted the conversation on the ground that it was not confined to preparing the applicant ’ s defence before a judicial authority. The applicant ’ s lawyers filed a complaint against the officer in question for abuse of office. On 21 April 2006 the Bursa public prosecutor ’ s office issued a decision not to prosecute. ii. Content of the exchanges between the applicant and his lawyers 43. It appears from the records of the lawyers ’ visits that the conversations very often began with a statement by the lawyers on recent developments concerning the PKK. The applicant consulted his lawyers on changes of persons at the different structural levels of the organisation, the various activities and meetings organised by the PKK bodies (at regional and national levels, and also abroad ), the political line adopted by the party leaders, competition among the leaders and losses sustained by armed militants in combating the security forces. The applicant, who presented himself as “the leader of the Kurdish people ”, commentated all the information provided by his lawyers and mandated them to transmit his ideas and instructions with a view to reshaping the PKK ’ s policies in Turkey (he broadly advocated recognising the rights of the Kurdish minority in a completely democratic Turkey) or in other countries. Moreover, he approved or rejected executive appointments to the various PKK bodies and advised on the party ’ s internal organisation. He also recommended that the PKK lay down its weapons when the Government had ended hostilities and the PKK ’ s demands had been met. 44. At the request of the Bursa public prosecutor, the Bursa post-sentencing judge several times refused to hand over copies of the records to the applicant and his lawyers on the grounds that they contained direct or indirect instructions by the applicant to the PKK, which used them to reshape its strategy and tactics. 45. Since May 2005 the applicant had remained actively involved in the political debate in Turkey on the PKK armed separatist movement, which identified him as its main representative, and his instructions as transmitted through his lawyers had been closely monitored by the general public, prompting a variety of reactions, some of which had been very extreme. A section of the Turkish population considered him as the most dangerous terrorist in the country, who was still active even in prison. His supporters saw him as their leader and the ultimate head of the separatist movement. The applicant also stated that he had taken part in negotiations with certain State officials with an eye to resolving the problems posed by the armed separatist movement, but that most of his calls for the discontinuation of the armed conflict had been heard neither by the Government nor by his armed movement. iii. Examples of disciplinary sanctions imposed on the applicant by reason of his conversations with his lawyers 46. The applicant was placed in solitary confinement on the ground that he had transmitted instructions to the organisation of which he was the leader during his lawyers ’ visits on the following dates : 30 November 2005, 12 July and 27 September 2006, 4 April, 4 July and 7 November 2007, 9 April and 14 May 2008, and 2 January and 4 November 2009. 47. Therefore, according to the tape recording of the conversation of 30 November 2005 between the applicant and his lawyers, the applicant told his legal representatives how he considered that PKK members could invite citizens of Kurdish origin to demonstrate in order to demand the right to education in the Kurdish language. 48. On 12 December 2005 the İmralı Prison disciplinary board, considering that the applicant ’ s words corresponded to “ training and propaganda activities within a criminal organisation ”, sentenced the applicant to 20 days ’ solitary confinement. Pursuant to this sanction, the prison administration removed all the applicant ’ s books and newspapers for twenty days. 49. The applicant ’ s appeal against this disciplinary measure was dismissed on 22 December 2005 by the Bursa post-sentencing judge on the grounds that the applicant had incited women and children to organise illegal demonstrations, thus carrying out what might be described as training and propaganda activities within a criminal organisation. 50. On 7 February 2006 the Bursa Assize Court dismissed the appeal lodged by the applicant ’ s lawyers against the decision of 22 December 2005. The Assize Court considered that the impugned decision was in conformity with the law. 51. The applicant was subjected to a further sanction of 20 days ’ solitary confinement on the ground of a conversation with his lawyers which had taken place on 12 July 2006. His appeals against this decision having been dismissed, he served this sentence from 18 August to 7 September 2006. The applicant ’ s lawyers were not apprised of this sanction until 23 August 2006, when a request for a visit to the applicant was rejected. ( c) Visits by members of the applicant ’ s family 52. Visits by relatives of the applicant ( in practice, his brothers and sisters ) are limited to one hour every fortnight. These visits originally took place in a visiting room comprising a barrier to separate the prisoner from his visitors, as the visiting areas where the prisoner and his visitors could sit together at a table were reserved for relatives of the first degree under Rule 14 of the Rules on visits to prisoners and detainees. On 2 December 2009 the State Council annulled this provision. Without waiting for this decision to become final, the İmralı Prison Governing Board granted the applicant the right to see his brothers and sisters unseparated by any barrier. On 26 July 2010, therefore, the applicant was able to meet his brother “ around a table” for the first time. 53. Where a visit is cancelled owing to weather conditions, the authorities can organise another visit a few days later, at the family ’ s request. In practice, Wednesday visits which are cancelled are not replaced because the visitors have never requested such replacement. 54. Furthermore, visits by family members have not been as frequent as the applicant and his relatives would have wished because of the inadequacy of the available means of transport under unfavourable weather conditions. Almost half of all the visits requested have been rejected owing to shuttle boat breakdowns or poor weather conditions. 3. Proceedings brought against some of the applicant ’ s lawyers ( a) Ban on some lawyers representing the applicant 55. Article 151/3-4 of the new version of the Code of Criminal Procedure, which came into force on 1 June 2005, provides that lawyers who have been prosecuted for crimes linked to terrorism may be banned from representing persons convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations who have been convicted from continuing to lead their organisations from their place of incarceration through the intermediary of their lawyers. 56. By a decision of 6 June 2005, the Istanbul prosecutor ’ s office invited the Istanbul Assize Court to apply this measure to some of the applicant ’ s lawyers. 57. By a decision of 7 June 2005, the 9 th Assize Court deprived twelve lawyers of their status as counsel to the applicant for a period of one year. 58. On 20 June 2005, the 10 th Assize Court of Istanbul dismissed the applicant ’ s appeal against that decision. ( b) Prosecution of some of the applicant ’ s lawyers for acting as messengers between him and his former armed organisation 59. On 23 November 2011, on instructions from the Istanbul public prosecutor ’ s office, the law enforcement agencies arrested and took into custody 36 lawyers representing the applicant in 16 Turkish departments (including six lawyers representing the applicant before the Court ), searched their offices and seized all the documents relating to the applicant. The prosecution suspected the lawyers in question of having acted as messengers between the applicant and the other PKK leaders. 4. Alleged poisoning of the applicant 60. By a letter of 7 March 2007 the applicant ’ s representatives informed the Court that they had asked a Strasbourg medical laboratory to analyse six hairs which they considered to be from the applicant and that the analyses carried out on 5 February 2007 demonstrated the presence of abnormally high doses of chromium and strontium. 61. However, analyses of samples taken directly from the applicant at the prison failed to disclose any trace of toxic elements or elements endangering health. ... | This case mainly concerned allegations by Abdullah Öcalan8 that he had been subjected to ill-treatment in 2008 during a search of his cell. The applicant complained in particular that he had been subjected to ill-treatment, both physical and verbal, during the search of his cell and that the investigation into his complaints had been ineffective. |
918 | Objective and subjective criteria | I. THE PARTICULAR FACTS OF THE CASE 7. The applicant, a Belgian national born in 1948, is a gunsmith. He is in the process of serving in Mons prison a sentence of eighteen years ’ hard labour imposed on him on 10 November 1978 by the Brabant Assize Court for murder. 8. During the night of 22-23 April 1976, two Frenchmen, Mr. Gilles Gros and Mr. Michel Dulon, were killed by revolver shots in Brussels whilst they were in a motor-car with Mr. Piersack, Mr. Constantinos Kavadias (against whom proceedings were subsequently discontinued) and a Portuguese national, Mr. Joao Tadeo Santos de Sousa Gravo. A. From the opening of proceedings until reference of the case to the Court of Cassation 9. On 9 July 1976, Mr. Preuveneers, an investigating judge at the Brussels Court of First Instance, issued a warrant for the arrest of the applicant, who was suspected of having caused both deaths. He was in France at the time, but was arrested by the French authorities who, after agreeing to grant his extradition, handed him over to the Belgian police (gendarmerie) on 13 January 1977. The Courtrai procureur du Roi (public prosecutor) so informed his colleague in Brussels by a letter of the same date. Mr. Pierre Van de Walle, a senior deputy procureur, initialled the letter and forwarded it to the official in the public prosecutor ’ s department (parquet) who was dealing with the case, one Mrs. del Carril. She transmitted it to Mr. Preuveneers with a covering note ( apostille ) dated 17 January. 10. On 4 February 1977, the investigating judge wrote to the Brussels procureur du Roi to enquire whether, as regards the co-accused Santos de Sousa, the public prosecutor ’ s department intended to report the facts to the Portuguese authorities, those authorities apparently being no longer willing to grant his extradition. On his covering note, the judge added in manuscript, between brackets, the words "for the attention of Mr. P. Van de Walle ". Mrs. del Carril replied to Mr. Preuveneers on 9 February 1977. 11. On 20 June, the procureur général (State prosecutor) attached to the Brussels Court of Appeal sent to the procureur du Roi the results of letters rogatory executed in Portugal concerning Mr. Santos de Sousa. After initialling the covering note, Mr. Van de Walle forwarded it to Mr. De Nauw, the deputy who had taken over from Mrs. del Carril in dealing with the case; Mr. De Nauw transmitted the note to the investigating judge on 22 June. 12. On 13 December 1977, Mr. Van de Walle took his oath as a judge on the Brussels Court of Appeal, to which office he had been appointed on 18 November. Most of the investigations had been completed by that time, although some further formal steps were taken at a later date. 13. On 12 May 1978, the deputy, Mr. De Nauw, signed an application for an arrest warrant ( réquisitoire de prise de corps); prior to that, in a report of forty-five pages, he had referred the matter to the procureur général attached to the Court of Appeal, who had replied on 11 May. By judgment of 16 June, the Indictments Chamber ( Chambre des mises en accusation) of the Brussels Court of Appeal remitted the applicant for trial before the Brabant Assize Court on charges of voluntary and premeditated manslaughter of Mr. Gros and Mr. Dulon. The procureur général drew up the formal indictment on 27 June. 14. The trial took place from 6 to 10 November 1978 before the Assize Court which was presided over by Mr. Van de Walle. After the court had heard, amongst others, numerous prosecution and defence witnesses, the twelve members of the jury withdrew to consider their verdict. Mr. Piersack had maintained throughout that he was innocent. On the third question put to them, concerning the "principal count", they arrived at a verdict of guilty, but only by seven votes to five. After deliberating on that question in private, the President and the two other judges ( assesseurs ) declared that they agreed with the majority. In the final event, the Assize Court convicted the applicant of the murder of Mr. Dulon and acquitted him as regards the other charges; it accepted that there were mitigating circumstances and sentenced him on 10 November 1978 to eighteen years ’ hard labour. It also recorded that on account of his nationality it had not been possible to obtain the extradition to Belgium of Mr. Santos de Sousa, who had been arrested in Portugal. 15. The applicant then appealed on points of law to the Court of Cassation. His sixth ground of appeal, the only ground that is relevant in the present case, was that there had been a violation of Article 127 of the Judicial Code, which provides that "proceedings before an assize court shall be null and void if they have been presided over by a judicial officer who has acted in the case as public prosecutor ( ministère public) ...". He contended that the words "for the attention of Mr. P. Van de Walle" appearing in manuscript on the covering note of 4 February 1977 (see paragraph 10 above) showed that Mr. Van de Walle, and not some other judicial officer in the public prosecutor ’ s department, had been dealing with the matter at the relevant time and had, accordingly, taken some part or other in the investigation of the case. Mr. Piersack made no mention of the letter of 13 January and the note of 20 June 1977 (see paragraphs 9 and 11 above), since at that stage neither he nor his lawyer had identified the author of the initials marked thereon; the Government on their own initiative supplied this information to the Commission in their written observations of March 1980 on the admissibility of the application. B. Submissions of the public prosecutor ’ s department attached to the Court of Cassation 16. In his submissions, Mr. Velu, an avocat général, retraced developments in the relevant Belgian legislation and judicial decisions, distinguishing between three periods: (a) Before 1955, although there were no written rules on the subject, the Court of Cassation had delivered eight judgments in which it had been held that a judicial officer who had acted as public prosecutor in criminal proceedings could not thereafter sit in the case as a judge and, in particular, on the assize court bench. The Court of Cassation founded this prohibition on a general and absolute principle that was said to derive from the very nature of the functions. The avocat général summarised the judgments as follows: "It is of little moment - that the judicial officer in the public prosecutor ’ s department intervened in the case only occasionally or by chance...; - that his intervention did not implicate one or more of the accused by name; - that his intervention did not involve a formal step in the process of investigation. It suffices that the judicial officer in the public prosecutor ’ s department personally played some part in the conduct of the prosecution in the case in question. There is incompatibility as soon as the judicial officer, during the course of the prosecution, has personally intervened in the case in the capacity of member of the public prosecutor ’ s department." (b) The second period (1955-1968), during which the Court of Cassation apparently did not have occasion to rule on the problem of incompatibility between the functions of public prosecutor and the functions of judge, was marked by two new factors: the incorporation of the Convention into the Belgian domestic legal system and the developments in domestic case-law with regard to the general principle of law whereby cases must be impartially examined by the court. The litigant ’ s right to "an impartial tribunal", within the meaning of Article 6 § 1 (art. 6-1) of the Convention, could imply either that a judge was simply obliged to withdraw if he were at all biased as regards the case or, alternatively, that he was under the more extensive duty of withdrawing whenever there was a legitimate reason to doubt whether he offered the requisite guarantees of impartiality. The avocat général rejected the first interpretation, which he described as "restrictive", in favour of the second, the "extensive", interpretation; he relied notably on Article 31 of the Vienna Convention on the Law of Treaties ( account to be taken of the object and purpose) and on the Delcourt judgment of 17 January 1970 (Series A no. 11, pp. 14-15, § 25 in fine). As regards the general principle of law whereby cases must be impartially examined by the court, he also referred to judgments of the Belgian Court of Cassation and the Belgian Conseil d ’ État. In addition, he cited the following passage from an inaugural address of 1 September 1970 to the Court of Cassation: "any judge whose impartiality may legitimately give rise to doubts must refrain from taking part in the decision". (c) The third period saw the entry into force of Articles 127 and 292 of the Judicial Code (see paragraph 22 below) and the application by the Court of Cassation of the second of these Articles to cases where a decision had been given by a judge who had previously acted as a member of the public prosecutor ’ s department. According to the avocat général, the five judgments that he listed followed the same approach as those delivered in the first period and established that: ( i ) notwithstanding Article 292 of the Judicial Code, the general principle of law whereby cases must be impartially examined by the court had retained its full force; (ii) for the purposes of that Article, the expression "dealing with a case in the exercise of the functions of public prosecutor" signified intervening therein in the capacity of prosecuting party; (iii) there could not be said to have been such an intervention if, in the case concerned, a judicial officer in the public prosecutor ’ s department had simply - appeared at a hearing at which the court did no more than adopt a purely procedural measure; or - taken some step which was manifestly without effect on the conduct of the prosecution. In the light of the foregoing, the avocat général concluded that the Court of Cassation should "set aside the judgment under appeal ... whether on the sixth ground adduced by the appellant or on the ground, to be taken into consideration by the Court of its own motion, of violation either of Article 6 § 1 (art. 6-1) of the Convention ... or of the general principle of law whereby cases must be impartially examined by the court". The avocat général stressed that the covering note of 4 February 1977 emanated from the investigating judge, the person who quite naturally was best informed not only as to the background to the case but also as to the identity of the judicial officer or officers in the public prosecutor ’ s department who were dealing with the prosecution. And Mr. Preuveneers had added to the covering note, in manuscript, the words "for the attention of Mr. P. Van de Walle ", thereby indicating the specific addressee for whom the note was personally intended: "If the investigating judge marked this covering note as being for Mr. P. Van de Walle ’ s attention, it is logical to suppose that he knew that that judicial officer had personally played some part or other in the conduct of the prosecution. What other reasonable explanation can be given for such a course of action ... which surely would not have been taken unless the two officers had been in contact regarding the investigation of the case? It is of little moment that other judicial officers in the public prosecutor ’ s department intervened in the case, for example to follow up the investigating judge ’ s covering note, or that Mr. Van de Walle intervened only by chance or occasionally, or that such intervention has not been shown to have implicated the appellant or a co-accused by name or ... to have involved a formal step in the process of investigation. Finally, there would be no reasonable explanation for the handwritten words ... if Mr. Van de Walle ’ s intervention in the case had until then been limited to steps that were purely routine or ... were manifestly without effect on the conduct of the prosecution." Even if the Court of Cassation were not to allow the appeal on the sixth ground, which was based on Article 127 of the Judicial Code, the circumstances described above were, in the opinion of the avocat général, Mr. Velu, sufficient to give rise to legitimate doubts as to whether the President of the Assize Court had offered the guarantees of impartiality required both by Article 6 § 1 (art. 6-1) of the Convention and by the general principle whereby cases must be impartially examined by the court. C. Judgment of the Court of Cassation 17. The Court of Cassation dismissed the appeal on 21 February 1979. As regards the sixth ground of appeal, the Court of Cassation observed firstly that the mere despatch of the covering note of 4 February 1977 did not necessarily show that Mr. Van de Walle had "acted in the case as public prosecutor", within the meaning of Article 127 of the Judicial Code. The Court of Cassation also took into consideration of its own motion Article 6 § 1 (art. 6-1) of the Convention and the general principle of law establishing the right to the impartiality of the court. It was true that both of these norms obliged a judge to refrain from taking part in the decision if there were a legitimate reason to doubt whether he offered the guarantees of impartiality to which every accused person was entitled. However, the Court held that the documents which it could take into account did not reveal that after the public prosecutor ’ s department had received the covering note mentioned in the ground of appeal, Mr. Van de Walle, who was then a senior deputy to the Brussels procureur du Roi, had taken any decision or intervened in any manner whatsoever in the conduct of the prosecution relating to the facts in question. Admittedly, for a judge ’ s impartiality to be regarded as compromised on account of his previous intervention in the capacity of judicial officer in the public prosecutor ’ s department, it was not essential that such intervention should have consisted of adopting a personal standpoint in the matter or taking a specific step in the process of prosecution or investigation. Nevertheless, it could not be assumed that a judicial officer in the public prosecutor ’ s department had intervened in a case in or on the occasion of the exercise of his functions as such an officer merely because there was a covering note which had been addressed to him personally by the investigating judge but which had not been shown by any evidence to have been received by the officer or to have caused him to take even an indirect interest in the case. In this connection, the Court of Cassation noted finally that it was not the senior deputy Van de Walle who had replied to the covering note. | The applicant submitted that the president of the Court of Assize by which he had been convicted for a double murder and sentenced to hard labour had been involved in his case during the investigation in his capacity as deputy public prosecutor. He complained that his case had been heard by an independent and impartial tribunal. |
826 | Right to vote (Article 3 of Protocol No. 1) | 2. The applicant was born in and lives in Santiago de Compostela. She is the mother of M., a mentally disabled young woman born in A Coruña (La Coruña) in 1996. The applicant was represented by Ms L. Gonzalez-Lagana Vicente, a lawyer practising in A Coruña. 3. The Government were represented by their Agent, Mr R.-A. León Cavero, State Counsel and head of the Human Rights Department at the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In December 2013, given the fact that M., the applicant’s daughter, would soon turn 18, the applicant lodged a request with a judge of First-Instance Court No. 6 of Santiago de Compostela (“the First-Instance Judge”) that she be deprived of her legal capacity. The applicant requested that her legal guardianship over her daughter be extended, but specifically asked that her daughter not be deprived of her right to vote. 6. On 2 September 2014, the First-Instance Judge decided that the applicant’s daughter should be placed under the extended partial legal guardianship of her mother and that, in the light of the evidence and the case file, M.’s right to vote should be revoked. 7. In an extensively reasoned judgment, the First-Instance Judge held that, given the specific circumstances of the case, the applicant’s daughter was not capable of exercising her right to vote. Having examined the Convention on the Rights of Persons with Disabilities (CRPD) (see paragraph 23 below) in the light of the Spanish legal system, the First-Instance Judge explained the difference between the CRPD’s general concept of disability and the Spanish legal institution of incapacitation ( incapacitación ), which is intended to guarantee the rights of disabled people. He also referred to the case-law of the Supreme Court (according to which the CRPD and the institution of incapacitation, as regulated under the Spanish legal system, are compatible); he furthermore stated that a person who has been declared incapacitated ( incapacitado ) in the course of judicial proceedings (and who is not able to manage himself or herself) cannot be compared to a person who suffers a disability but is capable of managing himself or herself. The First-Instance Judge indicated in particular that: “It is necessary to bring on this particular controversial aspect the most recent and consolidated scientific doctrine and jurisprudence, citing, inter alia, the recent Supreme Court judgment 341/2014, of 1 July 2014, which states that ... (as is clear from the New York Convention and as was maintained by Supreme Court judgment 421/2013 of 24 June) Article 29 of the CRPD guarantees to persons with disabilities all political rights, and the possibility to enjoy them, under equal conditions, and as a logical corollary thereto ... the right to vote ...; sections 3(1)(b) and 2 of Institutional Law 5/85 of 19 July 1985 on the General Electoral System states that those declared incapacitated by virtue of a final judicial decision shall be deprived of the right to vote, provided that the decision expressly declares the relevant person’s incapacity to exercise it, and that the judges or courts deciding on that person’s incapacity or on confinement proceedings expressly rule on that person’s incapacity to exercise his right to vote. The loss of the right to vote is not an automatic or necessary consequence of incapacity ... It is for the judge in charge of the case to analyse and assess the situation of the person under his consideration and to rule on the advisability of denying that person his right to exercise of this fundamental right, ... which is a rule and not the exception ...” 8. The First-Instance Judge considered that in respect of the instant case, the limitations imposed on M. in respect of her right to vote were based neither on the requirement of a higher cognitive or intellectual capacity nor on M.’s lack of knowledge regarding her voting options (that is to say her choice of candidate or party) nor on any hypothetical irrationality in respect of such choices, but on the strict and objective establishment of her lack of capacity in respect of political affairs and electoral matters. The court’s medical expert and the First-Instance Judge had ascertained the notable – and at that time insuperable – deficiencies of M. (without, in accordance with section 761 of the Civil Procedural Law, prejudging any possible subsequent change in her capacity) in respect of her exercising an electoral choice. The First-Instance Judge acknowledged that depriving a person of her voting rights could not be an automatic consequence of a judicial declaration of legal incapacity and that decisions dealing with such situations had therefore to be extensively reasoned. He noted that the task at hand was not that of examining the knowledge of the applicant’s daughter about a specific political system, but to assess the circumstances of the case. The restriction of her right to vote was not justified by the fact that she hardly knew anything about the Spanish political system, but because she was highly influenceable and not aware of the consequences of any vote that she might cast. The First-Instance Judge emphasised in his judgment that such decisions were always subject to judicial review. 9. In October 2014, the applicant lodged an appeal with the Regional Court ( Audiencia Provincial ) of A Coruña. She asked the court to expressly recognise her daughter’s right to vote, submitting that under Articles 12 and 29 of the CRPD, the right to vote of persons with disabilities was recognised and that States had to provide them with the support necessary for the full exercise of that right to be guaranteed. 10. On 11 March 2015, the Regional Court of A Coruña dismissed the applicant’s appeal. The Regional Court considered that a decision to deprive a person of his or her right to vote was legal and compatible with the CRPD, provided that that person’s capacity to exercise the right to vote had been subjected to individual review by a judicial body; it noted that the first-instance judgment had been sufficiently reasoned. The Regional Court emphasised that the intellectual ability of the applicant’s daughter was equivalent to that of child aged between six and eight. 11. In April 2015, the applicant lodged an appeal on points of law with the Supreme Court. She argued that all citizens had the right to vote under Article 23 of the Spanish Constitution (taken in conjunction with Article 10 § 2 thereof, which provided that fundamental rights recognised under the Constitution should be interpreted in accordance with the international conventions ratified by Spain). Moreover, she considered it to be contrary to the principle of non-discrimination that disabled people were prevented from exercising the fundamental right to vote. 12. On 17 March 2016, the Supreme Court dismissed the applicant’s appeal, upholding the decision of the Regional Court and ruling that the reasoning of the contested judgment had contained a thorough analysis of the case and had correctly balanced the interests at stake. 13. On 28 April 2016 the applicant lodged an amparo appeal alleging a violation of Article 23 of the Spanish Constitution, defending her daughter’s right to vote. It was dismissed by the Constitutional Court on 28 November 2016 (notified on the 22 December 2016). 14. In its reasoned decision ( auto ), the Constitutional Court stated as follows: “... 2. With regard to doubt about the constitutionality of sections 3(1)(b) and 2 of Institutional Law 5/1985 ... on the general electoral system (the LOREG) under Article 23 § 1 of the Spanish Constitution, the applicant assumes that this constitutional provision guarantees to all citizens the right of active suffrage, without any limitation or exception ... ... Sections 2 and 3 of the LOREG limit the ... right to vote to those who, besides holding Spanish nationality ..., have reached the minimum legal age, have been included in the electoral census, and are not affected by the circumstances provided by section 3 (including having been judicially deprived of the right to vote in incapacity proceedings or being confined owing to a psychiatric disorder). Thus, the constitutional model of universal suffrage is not per se incompatible with an individual being deprived of the right to vote for a reason legally provided for, especially when such deprivation is covered by the standard legal guarantees. 3. On the basis of the considerations listed in the previous paragraph, the arguments employed in the appeal are insufficient to effectively question the constitutionality – owing to the infringement of Articles 23 §§ 1 and 14 of the Spanish Constitution – of the above-mentioned legal provisions (paragraphs (1)(b) and (2) of section 3 of the LOREG), which enable courts and tribunals to restrict the exercise of a person’s right to vote on the basis of that person’s legal incapacity – in particular, on the basis of the specific circumstances of each person and after the completion of the appropriate judicial procedure determining his or her incapacity (or the authorisation of his or her confinement on the basis of mental illness). With regard to the alleged interpretation of Article 23 of the Spanish Constitution in accordance with the CRPD – and, in particular, in accordance with Article 29 thereof – which was adopted in New York on 13 December 2006 and ratified by Spain ... on 9 April 2008 ..., it is necessary to take into account, first of all, the distinction between ‘disability’ (a) in the sense of the Convention – a very broad concept that includes any ‘long-term physical, mental, intellectual or sensory impairment’ that may prevent any actual equality, and (b) ‘disability’ in the sense of the Spanish Civil Code (CC) – that is to say ‘persistent physical or mental illnesses or impairments that prevent the person from caring for himself/herself’ (Article 200 of the CC) with regard to his/her exercise of the right in question under section 3 of the LOREG. The latter deals with the ability of ... each person to cast a vote as a ‘free expression of the will of the elector’, which is also guaranteed by the CRPD (Article 29 (a) (iii)), the purpose of which is ..., in line with the mandate specified by Article 9 § 2 of the Spanish Constitution: to remove obstacles that prevent or hinder free and secret voting without fear (Article 29 (a) (ii) and (iii)) by persons with disabilities and to ensure that they are ‘assisted in voting by a person of their choice, ... where necessary and at their request’. ... It should be stressed that section 3 of the LOREG does not deprive the ‘disabled’ of their right to vote as a group or on the basis of any disability. On the contrary, it gives the judicial authorities the task of deciding on such a restriction of the exercise of the fundamental right on an individual basis, because of the specific circumstances of each person and after due process has been observed. This provision does not stipulate the deprivation of this right of suffrage in its active aspect in respect of people suffering from any disability, but only to those in respect of whom it has been so decided, by a judgment, after the appropriate proceedings have been conducted with due respect to the guarantees of adequate defence and evidence, and by virtue of the specific dysfunctionality from which they suffer and which affects their intellectual and volitional capacity with respect to the exercise of the right to vote. Therefore, the restriction should only affect those persons who lack the minimum level of understanding and will necessary to freely exercise their vote, as provided by Article 23 § 1 of the Spanish Constitution. Furthermore, the nature of the measures referred to in Article 29 (a) (i) to (iii) of the CRPD is such ... that their purpose is to ensure the effective exercise of the right to vote as a true reflection of the free will of a person with a disability and not, on the contrary, the mere insertion of the ballot paper into the ballot box. 4. ... The case-law of the Civil Chamber of the Supreme Court ... requires that a decision not to allow someone to exercise his fundamental right to vote be preceded by an individualised examination of that person’s situation and by an assessment of the competing interests in play. ... ... It is necessary to point out that an assessment of the specific circumstances from which the contested decisions imply the inability to exercise the right to vote in the present case not only does not manifest any arbitrariness, irrationality, or obvious error in the wording of those decisions, but also complies with the principle of reinforced reasoning, which is required when a restriction of the exercise of fundamental rights is involved ... ... The contested judicial decisions take into consideration the data that they extract from the evidence – in particular from the forensic report and the examination carried out by the judge himself, as well as ... the statement given by the applicant’s daughter at the hearing – in order to reach a decision that cannot be categorised as unreasonable. As is clear from the judgments appealed against and as was explicit in the first-instance judgment, the disputed decision does not depend on the person’s threshold of knowledge or instruction, which is not required for other citizens not subject to incapacity proceedings. The said knowledge is only one piece of information which, together with others – particularly medical-psychiatric expert reports – can be reasonably used to evaluate a person’s aptitude ... This can also be applied to the question of ‘influence exerted by third parties’ ... It is not ... a question of identifying an absence of knowledge ... on the part of a person lacking capacity, but of recognising that through these elements (among others) ... the degree of development of the mental faculties of the person in question can be ascertained.” 15. The Constitutional Court concluded that there had not been any violation of the fundamental rights alleged. | This case concerned the disenfranchisement of the applicant’s daughter who was mentally disabled. The applicant complained that the restrictions on her daughter’s right to vote had infringed her rights and had been discriminatory. |
835 | Searches and seizures carried out at a lawyer’s offices or home | I. THE CIRCUMSTANCES OF THE CASE 7. The first applicant was born in 1968 and lives in Joensuu. He is a member of the Finnish Bar. The other 17 applicants were his clients at the relevant time (“the client applicants”). 8. On 26 January 1999 the police conducted a search – it is not entirely clear of which premises – based on the suspicion that the first applicant's clients X and Y (not client applicants before the Court) had committed aggravated debtor's fraud. In the course of that search X managed to destroy the original of a promissory note which the police had attempted to seize and which may have been relevant to the financial arrangements underlying the suspected offence. 9. At the time the first applicant's status in the investigation had been that of a witness. On 22 February 1999 the police requested him to attend for questioning in this capacity. This request was apparently cancelled before he had taken any action thereon. 10. A police officer in charge of the criminal investigations granted a search warrant and on 2 March 1999 seven officers of the National Bureau of Investigation ( keskusrikospoliisi, centralkriminalpolisen ), assisted by a tax inspector and an enforcement official ( ulosottomies, utmätningsman ), searched the first applicant's law office, flat and vehicles. This search warrant was likewise based on the suspicion that X and Y had committed aggravated debtor's fraud but the first applicant was now indicated as a suspect, namely that he had aided and abetted the offences by drafting certain documents. 11. Under the terms of the warrant the search aimed at examining “the documents, computers and archives of the law office” as well as the first applicant's flat and vehicles “so as to investigate the share transactions by the limited liability company [H.] in 1998 and to find material relating to those transactions”. 12. During the search of his law office all of the first applicant's client files were allegedly perused. The police also examined all floppy disks and examined his note books pertaining to his meetings with clients. In addition, the hard disks in the office computers were copied: two were copied on the spot and two computers, including the one used by the first applicant himself, were seized for later disk-copying on police premises. Those computers were returned on 4 March 1999. 13. The first applicant's computer also contained software for electronic mail, including his private and professional messages. 14. A fellow member of the Bar assisted the first applicant during part of the search. 15. On 4 March 1999 the first applicant requested the District Court ( käräjäoikeus, tingsrätten ) of Joensuu to revoke the seizure as being unlawful. On 24 March 1999 the court nevertheless maintained it, noting that the first applicant was suspected of aiding and abetting aggravated debtor's dishonesty. 16. On 11 May 1999 the Court of Appeal ( hovioikeus, hovrätten ) of Eastern Finland upheld the District Court's decision and on 25 November 1999 the Supreme Court ( korkein oikeus, högsta domstolen ) refused the first applicant leave to appeal. 17. On 4 May 1999 the police certified the return of three of the four hard disks and that they had destroyed any copies thereof. They stated however that they would retain a copy of the fourth hard disk until the lawfulness of the seizure had been finally decided or until the material could be destroyed for any other reason. 18. In June 1999 three of the applicants (nos. 2-3 and 8 ) requested the District Court to revoke the seizure of the copy of the fourth hard disk (which contained material relating to their instructions to the first applicant ) and to order the police to compensate their costs. They argued that the seizure had been unlawful from the outset. At any rate, the copy in question was of no relevance to the pre-trial investigation concerning X and Y. 19. In its rejoinder the National Bureau of Investigation referred to the Court of Appeal's decision of 11 May 1999 in which the seizure had been found lawful. Moreover, the hard disks had only been subjected to a targeted search and they were able to search information concerning only relevant companies and individuals. Only the potentially relevant client files in the law office had been perused. The search and seizure had thus not been of wholesale nature. The tax and enforcement officials who had witnessed the search had been – and remained – under a duty to keep secret any information thereby obtained. 20. On 17 June 1999 the District Court agreed with the three client applicants and ordered that the copy of the fourth hard disk be returned. It rejected, as not being based on law, the applicants'claim for compensation in respect of their costs. The applicants appealed on this point, whereas the police appealed against the revocation order. 21. In its submissions to the Court of Appeal the National Bureau of Investigation listed the contents of the copied hard disk. For example, specific mention was made of what appears to have been the promissory note which the police had been looking for (and had found). The submissions indicated the debtor's and the creditor's names as well as the amount of the debt. The National Bureau of Investigation furthermore explained that the material on the relevant hard disk had been copied to a so-called optical disk which could in any case not be returned as it also contained internal police data. The submissions by the Bureau were apparently not ordered to be kept confidential. 22. On 27 January 2000 the Court of Appeal declined to examine the parties'appeals, considering that the matter had been resolved res judicata in the first set of proceedings ending with the Supreme Court's decision of 25 November 1999. The Supreme Court granted leave to appeal to the three client applicants in question. 23. On 3 March 2000 the public prosecutor charged, among others, X and Y with aggravated debtor's dishonesty but decided to press no charges against the first applicant, having found no evidence of any crime. 24. On 20 April 2001 the Supreme Court ruled that although a final decision had already been rendered in respect of another appellant, it did not prevent the courts from examining similar appeals filed by other parties. The case was referred back to the Court of Appeal which, on 4 October 2001, revoked the District Court's decision on the basis that the seizure had been lawful. 25. The three client applicants in question were again granted leave to appeal to the Supreme Court. On 18 October 2002 it revoked the seizure in so far as it pertained to information which those applicants had given to the first applicant. 26. The Supreme Court found it undisputed that the copied hard disk contained information relating to the three client applicants'instructions to the first applicant. It had not been argued that this information was not protected by counsel's secrecy obligation under Chapter 17, section 23 of the Code of Judicial Procedure. Nor did the information in question pertain to any suspicion that the first applicant or any one else had committed a crime. 27. The Supreme Court accepted that the police had been entitled by Chapter 4, section 1 of the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslagen 450/1987) to seize the first applicant's hard disk and make a copy thereof. Technical reasons and practical needs (the fact that the police had been obliged at the time of the search to copy the whole hard disk) did not however permit any deviation from the prohibition on seizure of privileged material. The police should therefore have returned the computer files immediately or destroyed them. The appellants were awarded reasonable compensation for their costs and expenses. 28. On 11 November 2002 the Chief Enforcement Officer of Vantaa confirmed that the copy of the hard disk had been destroyed on that day. 29. On 22 August 2003 the Deputy Chancellor of Justice ( valtioneuvoston apulaisoikeuskansleri, justitiekansleradjointen i statsrådet ) issued his decision in response to a petition by the Finnish Bar Association concerning, inter alia, the alleged unlawfulness of the coercive measures against the first applicant. He found it established that the tax inspector and the enforcement official had attended the search in their respective capacity as a witness and expert. He nevertheless concluded, inter alia, that from the point of view of foreseeability of domestic law, as required by Article 8 of the Convention, the relationship between the Coercive Measures Act ( Chapter 4, section 2, subsection 2), the Code of Judicial Procedure ( Chapter 17, section 23, subsection 1 (4)) and the Advocates Act (section 5 c) was somewhat unclear and permitted very diverging interpretations as to the extent to which privileged material could be subject to search and seizure. The Deputy Chancellor therefore requested the Ministry of Justice to consider whether there was a need to amend the relevant legislation. III. THIRD PARTY INTERVENTION 53. The Finnish Bar Association ( Finlands Advokatförbund, Finlands Advokatförbund ) noted that the case did not meet a single criterion for the lawful execution of search and seizure as set out in the case law of the Court. Further, under Finnish legislation, there are no provisions affording a legal remedy against a search warrant issued by the police. A search may be carried out on the premises of a person to whom a confidentiality obligation applies provided that the object to be seized may be found there. The threshold for the execution of a search is low in the extreme and the execution of a search in and of itself interferes with the right and obligation of secrecy of a person to whom a confidentiality obligation applies. 54. The wording of the instructions pertaining to the search in the present case was rather expansive and no attempt was made to attend to the advocate's confidentiality obligation. Disregard of this obligation is particularly manifest in the participation of a tax inspector and an enforcement official in the search. The confidentiality obligation of advocates was also disregarded in respect of the seizures executed in connection with the search. The hard disks of the law office's computers, floppy disks and several notebooks pertaining to meetings with clients were seized in connection with the latter search, in addition to which data on the office secretary's computer was copied. Subsequent to the seizure, the material was not e.g. sealed and consigned for safekeeping until a court could rule on the lawfulness of the seizure. 55. In terms of the confidentiality obligation, the possibility of submitting the issue of a seizure to the court for review as provided for in the Coercive Measures Act had in this case remained a dead letter. All the information deemed confidential by the advocate and his clients had been disclosed prior to the court proceedings, as the authorities examined the seized material without waiting for a court to rule on the issue. 56. The Association further maintained that the police could have availed themselves of the procedure provided for in the Advocates Act, wherein the searched material would have been examined by an outside advocate who would have determined which material was related to the pre-trial investigation being conducted by the police and which was not. This procedure would have allowed for the upholding of the advocate's confidentiality obligation as well as the client's right to confidentiality. | This case concerned the search of the premises of the first applicant, a lawyer, and the seizure of certain materials. The police kept back a copy of one of his hard disks which contained, among other things, private details of three of his clients at the relevant time, who were also applicants before the Court. |
947 | Permissible restrictions on freedom of assembly and association | I. THE CIRCUMSTANCES OF THE CASE 11. The applicant was born in 1944 and lives in Viareggio (in the province of Lucca). He is a judge. 12. At the time he lodged the application, he was acting president of the La Spezia District Court. On 23 November 1993, following an inquiry by the General Inspectorate for the Ministry of Justice, the Minister of Justice instituted disciplinary proceedings against the applicant on account of his membership of a Masonic lodge affiliated to the Grande Oriente d'Italia di Palazzo Giustiniani. The Minister accused him of having been a Freemason from 1981 until March 1993 and of having thereby breached Article 18 of Royal Legislative Decree no. 511 of 31 May 1946 (see paragraph 18 below). 13. In a decision of 10 October 1995, the disciplinary section of the National Council of the Judiciary ( Consiglio Superiore della Magistratura ) found that the applicant had committed the offences of which he was accused and gave him a reprimand ( censura ). It stated that from 1982 onwards it should have been possible to “have a clear idea of the loss of integrity resulting from membership of the Freemasons ... because of the degeneration brought about when a number of people came together within the P2 lodge with plans to take control of the public authorities and subvert democratic institutions, and because of the collusion of certain Masonic lodges with the Mafia and organised crime”. The disciplinary section added that the directives issued by the National Council of the Judiciary on 22 March 1990 and 14 July 1993 (see paragraphs 21 and 22 below), which emphasised – the second one in particular – the substantial conflict between membership of the Freemasons and membership of the judiciary, were to be seen in the context of such developments. The decision also stated that it was contrary to disciplinary rules for a judge to be a Freemason, for the following reasons: the incompatibility between the Masonic and judicial oaths, the hierarchical relationship between Freemasons, the “rejection” of State justice in favour of Masonic “ justice ” and, lastly, the indissoluble nature of the bond between Freemasons, even in the case of a member who wished to leave the organisation. The disciplinary section of the National Council of the Judiciary stated, lastly, that the applicant's alleged ignorance of the institutional debate on Freemasonry merely served to confirm the existence of conduct punishable under Article 18 of the 1946 Legislative Decree. In its opinion, such conduct was characterised by a lack of diligence, caution and wisdom in dealing with a situation that posed a threat to the values protected by that Article. 14. On 5 January 1996 the applicant appealed on points of law to the Court of Cassation. In the three grounds of his appeal he alleged a breach of Article 18 of the Constitution, challenged the arguments used in support of the finding that judicial office was incompatible with membership of the Freemasons, and complained that no reasons had been given for the conclusion that a judge would be discredited by belonging to the Freemasons. 15. On 2 February 1996 the Ministry of Justice lodged a cross-appeal. The Court of Cassation, sitting as a full court, examined the case on 19 September 1996 and, in a judgment of 20 December 1996, dismissed the applicant's appeal. It held, firstly, that the application of Article 18 of the Constitution was limited by the constitutional principles of the impartiality and independence of the judiciary, principles which should be taken to prevail over the right to freedom of association. The Court of Cassation further held that the disciplinary section of the National Council of the Judiciary had based its decision mainly on the directive of 14 July 1993 in which the Council had emphasised that judicial office was incompatible with membership of the Freemasons. 16. The applicant maintains that his career has been at a standstill since the disciplinary section's decision: he was declared unsuitable for a post as judge of the Court of Cassation; furthermore, the judicial council for his district stated that, because of the reprimand, it was unable to give an opinion on his suitability for a post as president of a district court. Lastly, the applicant states that he has been transferred to Sicily; however, he has not produced any evidence that that decision was linked to the sanction imposed on him. | The applicant, a judge, complained in particular that the decision by the National Council of the Judiciary, upheld by the Court of Cassation, to impose a disciplinary sanction on him in the form of a reprimand for being a Freemason, from 1981 until March 1993, had infringed his right to freedom of assembly and association. |
158 | Precautionary measures to protect a new-born baby’s health | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1977 and 2007 respectively and live in Svinaře. A. Circumstances surrounding the second applicant ’ s birth 6. The first applicant is the mother of the second applicant. During her pregnancy she had regular check-ups with a doctor and attended ante-natal classes at Hořovice Hospital. Prior to giving birth she had expressed, among other things, her wish to leave the maternity ward as soon as possible provided that there were no complications. 7. On 24 October 2007 the first applicant contacted a pediatrician, S., who agreed to take charge of her future child and to come and see them both at their home as soon as they were discharged from the maternity ward. She informed the first applicant that she would, however, be away the following weekend. The applicant then told her that she intended to leave the hospital “ earlier ”, without enlarging on that statement. S. subsequently stated that it had not been her understanding that the applicant wanted to leave the hospital a few hours after the birth. 8. The second applicant was born on Friday 26 October 2007 at Hořovice Hospital. It was a natural and spontaneous delivery with no complications. The applicants were found to have no health problems, the Apgar score for newborns ( recording the pulse rate, respiration, complexion, muscular activity and reflex irritability ) was the highest possible, according to the medical team ’ s assessment. In these circumstances, the first applicant decided to leave the hospital the same day, which she did at about noon despite meeting opposition from the medical team. 9. According to a statement issued by the hospital on 29 October 2007 following extensive media coverage of the case, the hospital staff had suggested that the applicants remain at the hospital for at least 48 hours and had warned the first applicant of the possible risks to the child ’ s health, but the first applicant had indicated that a pediatrician would be taking charge of the child. After the applicants had left, the hospital staff informed the police, which was standard practice in situations where a patient left hospital prematurely without the doctor ’ s consent and this could have repercussions on his or her health. The social welfare authority was not informed until after the pediatrician S. had contacted the hospital ( see below ). The hospital found it regrettable that the first applicant had not expressed her wish to leave the hospital only hours after the birth during the ante-natal classes. Had she done so, the staff would have recommended that she obtain a personal care plan for the newborn baby and secure written agreement from the pediatrician ( who would thus have had proper advance notice ), whereupon her decision would have been accepted. The first applicant had accepted, moreover, that the events in question might have arisen as a result of a misunderstanding regarding the care arrangements for her newborn baby. 10. According to the explanations given by the pediatrician S., on 26 October 2007 at about 2 p.m. she had been informed by the nurse from her surgery, who had received a call from the first applicant, that the latter had given birth that very morning and returned home. As it was an unusual situation, the pediatrician, who had been preparing to leave for the weekend and could not visit the applicants until Monday afternoon, informed the staff at Hořovice Hospital accordingly. D., the hospital doctor, decided to contact the social welfare authority, namely, the Černošice municipal office. In the meantime S. had informed the first applicant by telephone that she would be able to see her and her child until Monday afternoon, which the applicant had accepted. Shortly afterwards the pediatrician was contacted by a social worker. She told her about the situation and gave her the first applicant ’ s telephone number. 11. According to the note sent by the Černošice Municipal Office to the Beroun Municipal Office ( hereafter “ the social welfare authority ” ), on 26 October 2007 the first applicant had left the hospital at noon on that day without informing the doctors; she had not been living at the address she had given the hospital for three years and the village where she was staying and her telephone number had been provided by the pediatrician contacted by the Černošice authority. The social worker had succeeded in contacting the child ’ s father on that number. Although he had been informed that an interim measure under Article 76a of the Code of Civil Procedure might be applied, he had stated that the applicants would not return to the hospital and had refused to provide the family ’ s exact address. 12. At the request of the social welfare authority, Dr D. drew up a note observing that “ given the short period of time since the birth, the health and potentially the actual life of the child [would] be at risk if he [were] deprived of hospital care”. 13. Also on 26 October 2007 the social welfare authority requested the Beroun District Court to apply an interim measure pursuant to Article 76a of the Code of Civil Procedure, with a view to entrusting the second applicant to the care of the gynaecology - obstetrics department of Hořovice Hospital. The above-mentioned notes drawn up by the Černošice Municipal Office and Dr D. were annexed to the request. 14. On the same day the court granted the request, reiterating the terms of the note drawn up by Dr D. The decision stated that any interim measure was served on the parties at the time of execution, which had to be immediate. 15. At 4.30 p.m. on 26 October 2007 a court bailiff and a social worker, accompanied by police officers, went to the applicants ’ house. Although they explained to the child ’ s father that the first applicant could go to the hospital with the second applicant, he refused to take them to there of his own free will. An emergency medical team was therefore summoned. After examining the newborn baby, the doctor present observed that he had no health problems but agreed with the others that for the purposes of implementing the interim measure the mother and child would be taken back to the hospital in the ambulance. The father, police officers, social worker and court bailiff followed the ambulance. Once at the hospital, the second applicant was examined again and found not to have any health problems. 16. The applicants were made to remain at the hospital for two days and allege that no medical act was carried out during that time. According to the hospital report, the first applicant had refused neonatal screening and vaccination of the second applicant. At the express request of the first applicant, who accordingly signed the form refusing further medical treatment (negativní revers), the applicants were discharged from the hospital on 28 October 2007, approximately 50 hours after the birth. ... | This case concerned a court-ordered interim measure requiring the return to hospital of a new-born baby and its mother, who had just given birth and had immediately gone home, and the lack of any remedy by which to complain about that measure. The applicants – the mother and the child – complained of a violation of their right to respect for their private and family life, alleging that the measure whereby the child’s return to the hospital had been ordered a few hours after his birth was neither lawful nor necessary. They also complained about the lack of an effective remedy, as they had been unable to challenge the interim measure, and, not being able to obtain its annulment, they were not entitled to any redress or damages. |
306 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 5. Mr İhsan Güler and Mr Sinan Uğur were born in 1964 and 1947 respectively and live in Ankara and İzmir respectively. 6. At the relevant time they were active members and regional leaders of the Party for a Democratic Society ( Demokratik Toplum Partisi (DTP)), which was subsequently dissolved by the Constitutional Court. The applicant Mr Güler, former mayor of the district of Başkale (Van), was at the relevant time the chairman of an association called KÜRT-DER ( Kürt Demokrasi Kültür ve Dayanışma Derneği – association for Kurdish culture, democracy and solidarity ). 7. On 21 August 2006 the applicants took part in a religious ceremony ( mevlût ) [1] on the premises of the DTP in Altındağ (Ankara), in which they paid tribute to three members of the PKK who had been killed by the security forces. 8. The participants read out passages from the Koran and said prayers, and showed a film about the lives of the deceased. The DTP ’ s regional representative gave a short speech, which can be summarised as follows : “Our fears and worries continue. People are still being killed. In such a context, we would like this mevlût to be a moment of peace and fraternity. ” 9. On 3 October 2006 the Muş public prosecutor ’ s office received an anonymous letter of denunciation, together with a CD containing a recording of the ceremony in question. The writer, who said that he had been a participant himself but had subsequently regretted it, explained that the ceremony had been held in memory of “the martyrs of the PKK ”. 10. Following an investigation by the public prosecutor ’ s office, the applicant Mr Güler was arrested and taken into police custody on 28 December 2006. He was released the next day. 11. Both applicants were committed to stand trial before the Ankara Assize Court. In their defence they stated that they had taken part in the ceremony for the observance of their religious duties. 12. In a judgment of 24 September 2008 the Ankara Assize Court, relying on section 7 ( 2 ) of Law no. 3713 on the prevention of terrorism, sentenced the two applicants to ten months ’ imprisonment. 13. In its judgment, the Assize Court observed, firstly, that the persons in whose memory the ceremony had been held were members of a terrorist organisation and that they had been killed by the security forces during an operation against that organisation. It also took the view that the choice of venue for the ceremony – the premises of a political party –, and the fact that the PKK flag had been spread over the tables and photos of members of the organisation had been displayed, contributed to raising serious doubts as to the actual reasons for the gathering that had been given by the applicants in their defence. 14. Further to an appeal on points of law by the applicants, their conviction was upheld by a final judgment of the Court of Cassation on 8 March 2010. The applicants were imprisoned for the duration of their sentence. ... | This case concerned the applicants’ conviction for propaganda promoting a terrorist organisation on account of their participation in a religious service organised on the premises of a political party in memory of three members of an illegal organisation (the PKK) who had been killed by security forces. The applicants alleged that their conviction had been based on their participation in a religious service which had consisted in a simple public manifestation of their religious practice. They also submitted that their conviction had not been sufficiently foreseeable, having regard to the wording of the Anti-Terrorism Act. |
687 | Searches of journalists’ home or workplace, accessing of the phone data and/or seizure of journalistic material | 2. The applicant was born in 1987 and lives in Kyiv. She was represented by Mr S. Zayets and Ms L. Pankratova, lawyers practising in Irpin and Kyiv respectively. 3. The Government were represented by their Agent, Mr I. Lishchyna. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The circumstances of the caseBackground of the case Background of the case Background of the case 5. The applicant is a journalist at the Kyiv office of Radio Free Europe/Radio Liberty. She is also the editor-in-chief of the “Schemes: Corruption in Detail” television programme. The programme has been running since 2014 and many of its issues concern senior prosecutors and politicians. 6. In 2015 the National Anticorruption Bureau of Ukraine (“the NABU”) instituted criminal proceedings against a prosecutor, K., on suspicion of unjust enrichment. In the framework of those proceedings, in the period between May and July 2016, the NABU tapped the telephone of Ms N., K. ’ s partner. 7. In 2017 K. started working at the Prosecutor General ’ s Office (“the PGO”). 8. On 13 November 2017 the Obozrevatel media website published an article stating that in the summer of 2017 the head of the NABU, S., had held a closed meeting with some media representatives during which he had disclosed confidential information about some ongoing criminal investigations, including the one against K. It was apparent from this article that, among other things, the media representatives had listened to a recording of a taped telephone conversation between Ms N. and her acquaintance, in which the two of them were discussing details of Ms N. ’ s private life. The Obozrevatel article was accompanied by an audio file presented as the audio recording of that meeting, including the recording of Ms N. ’ s telephone conversation with her acquaintance. 9. The same day M., a Member of Parliament, complained to the Prosecutor General that the above article was unlawful and had indicated that S. had also breached the rules of confidentiality pertaining to ongoing criminal proceedings, as well as Ms N. ’ s right to respect for her private life in divulging information about her to the journalists. 10. On 15 November 2017 Ms N. also complained to the PGO about the same matter, asking that criminal proceedings be instituted against S. and his colleagues for breaching her privacy and making public the material of the ongoing criminal investigations. Criminal investigation of alleged misconduct by S. 11. On 16 November 2017 the PGO instituted criminal proceedings against S. under Articles 163, 182, 328 and 387 of the Criminal Code for violation of privacy and disclosure of confidential information concerning ongoing criminal investigations. 12. On 22 November 2017 the PGO requested that the Security Service of Ukraine (“the SSU”) conduct a voice recognition analysis of those present at the purported meeting with S. using the audio recording featured in the article on the Obozrevatel media website. 13. On 4 December 2017 the SSU informed the PGO of the results of the voice recognition analysis. It was mentioned that the voices on the recording were likely to belong to S., his deputy U. and two journalists, B. and the applicant. There were also several other voices which could not be identified. 14. On 19 December 2017 the applicant was summoned to the PGO for questioning. She informed the investigator, I. (“the investigator”) that, as a journalist, she communicated with many law-enforcement officials, including S. Information received from public events was used in her professional work. As to the information received confidentially, she claimed that, under Article 65 of the Code of Criminal Procedure, she could not be interviewed as a witness if it would lead to the identification of her journalistic sources. For the same reason, she refused to answer questions related to the alleged meeting with S. and to either confirm or deny her own presence at that meeting. PGO ’ s request for access to the applicant ’ s communications data and ensuing events 15. On 27 August 2018 a PGO investigator submitted a request to the Pecherskyy District Court in Kyiv (“the District Court”) for access to the applicant ’ s communications data from 19 July 2016 (the date when the results of Ms N. ’ s phone tapping were formally documented) to 16 November 2017 (the date of institution of the criminal proceedings against S.) held by the mobile service provider JSC “ Kyivstar ”. The requested data included dates, times, call durations, telephone numbers, sent and received text messages (SMS, MMS), and the location of the applicant at the time of each call or message. The information was requested in order to establish the exact time and place of the meeting with S. 16. The same day P., an investigating judge of the District Court (“the investigating judge”) examined the investigator ’ s request and issued an order authorising the collection of the data requested. It was noted in the order, in particular, that under Article 163 of the Code of Criminal Procedure (CCP) it was possible to examine the matter without the applicant being summoned, as there were “sufficient reasons to believe that there existed a real threat of the information sought being altered or destroyed”. The order stated that it was not subject to appeal and was valid for one month. 17. On 1 September 2018 an article on the Court Reporter media website stated that the PGO had started checking telephone calls made by [unnamed] journalists who had supposedly been present at the purported meeting with S. The site referred to the order of the investigating judge of 27 August 2018, and contained a link to an anonymised version of that order in the Unified State Register of Court Decisions. The article was accompanied by individual pictures of S. and a number of journalists and human rights activists, including the applicant. 18. On 4 September 2018 the PGO investigator wrote a letter to the mobile service provider JSC “ Kyivstar ” referring to the District Court ’ s order of 27 August 2018 and informing the addressee that data was only required about the dates, times and location of the mobile telephones of the applicant and one other person - apparently, B., - near the six specified streets and places in Kyiv. It was also indicated that this information should be provided without any other data being disclosed. 19. On 7 September 2018 the applicant and her lawyer asked the District Court for a copy of the order of 27 August 2018. The request was refused on 10 September 2018. 20. On 11 September 2018 the applicant, notwithstanding the fact that the order of 27 August 2018 indicated that it was not possible to lodge an appeal against it, challenged it before the Kyiv City Court of Appeal (“the Court of Appeal”) and requested its suspension. 21. On 15 September 2018 the Prosecutor General was asked during a press conference about the data sought from the mobile telephones of the applicant and B. He stated that while the freedom of journalistic activity was of paramount importance, some interference with it was justified owing to the lack of alternative means of obtaining information about the date on which the meeting of S. with journalists had taken place. He stated that information was only required from one cell of the mobile network, namely that covering the NABU offices. Nevertheless, he argued that the period of sixteen months was justified. He also stated that he was in principle ready to show the reply from the mobile service provider to make it apparent that no data identifying any journalistic sources had been either claimed or received. 22. On 18 September 2018 the Court of Appeal found it possible to accept the applicant ’ s appeal against the order of 27 August 2018 for consideration. It noted that court orders authorising “access to items and documents” under Article 163 of the CCP were, as a general rule, not amenable to appeal. However, Article 309 of the CCP envisaged an exception for cases, where such an order would entail seizure of items or documents, without which an individual entrepreneur or a legal entity would be unable to carry out their activity. Referring, in particular, to the importance of the journalistic sources for the applicant ’ s professional activity, the Court of Appeal decided that this exception could be applied in her case. The court further noted, referring, in particular, to Article 8 of the Convention and Section 17 of the State Support of Mass Media and Social Protection of Journalists Act, that the investigating judge of the District Court had not given proper reasons for the disputed order and had not complied with the requirements of domestic law, in violation of the applicant ’ s rights. The Court of Appeal considered, however, that the scope of the data requested in the investigator ’ s letter of 4 September 2018 was not excessive. It quashed the District Court ’ s order and made a new one authorising access to data about the dates and time of presence of the applicant ’ s mobile telephone on six specified streets and places in Kyiv during the period from 19 July 2016 to 16 November 2017. The relevant part of the order read as follows: “... as correctly noted by the appellant, and as the judicial panel agrees, the investigative judge issued the order for temporary access ... without due reason, failing to comply with legislative requirements, in breach of the [applicant ’ s] rights, as a journalist, protected by law. At the same time, as the prosecutor explained at the hearing, such measures were used with a view to achieving efficiency in the aforementioned criminal proceedings, in particular, in order to establish more exactly the time and place of the commission of an offence, ... since, being questioned as a witness, [the applicant] had refused to give a statement to the investigation in this regard. In addition, it can be seen from the letter of [the PGO investigator] of 4 September 2018 ... that the latter was only asking for permission to access data concerning dates and times and the location of the [applicant ’ s telephone] between 19 July 2016 and 16 November 2017 within the boundaries of the base stations of the operator located in Kyiv on the [following] streets: Surikova [Street], Bogdanivska [Street], Shovkunenka [Street], ... Lypkivskogo [Street], Khomova Lane, Povitroflotskiy Avenue, Solomyanska Square and the [area covered by these stations]. The judicial panel considers that allowing the aforementioned request by the investigator in this particular aspect shall correspond to the task of the criminal investigation to ensure a prompt, comprehensive and unbiased inquiry and will sufficiently safeguard the protected rights and lawful interests of the [applicant] as a journalist.” 23. On 20 September 2018 the applicant and her lawyer asked the mobile service provider JSC “ Kyivstar ” and the PGO whether the investigation had had access to the applicant ’ s mobile telephone data in accordance with the orders of 27 August and 18 September 2018. Fifteen NGOs and the media made a “flash mob” requesting the same information from the PGO. All these requests were refused on the basis of the confidentiality of the ongoing investigation. Procedure before the Court 24. On 10 September 2018 the applicant asked the Court for the indication of an interim measure under Rule 39 of the Rules of the Court. 25. On 18 September 2018 the Court indicated to the Government under Rule 39 of the Rules of the Court that, in the interests of the parties and the proper conduct of the proceedings, they should ensure that the public authorities abstain from accessing any of the data specified in the order of 27 August 2018 concerning the applicant. 26. On 27 September 2018, when interviewed during a visit to Parliament, the Prosecutor General stated that no data had been received from the mobile telephone operator, that they had complied with the decision of the Court [regarding the indicated interim measure] but that they would need the data to investigate a serious crime and would try to explain this to the Court. 27. On 16 October 2018 the Court extended the aforementioned interim measure indicating to the Government of Ukraine to ensure that the public authorities abstain from accessing any data mentioned in the ruling of 18 September 2018 by the Kyiv City Court of Appeal concerning the applicant until further notice. 28. On 12 February 2019 the PGO informed the Government ’ s Agent within the framework of the present proceedings that they had not carried out any of the actions authorised by the orders of 27 August and 18 September 2018 in the applicant ’ s case, taking into account the requirements imposed under Rule 39. | This case concerned judicial authorisation of the accessing of the phone data of the applicant, a journalist with Radio Free Europe/Radio Liberty, by the investigating authorities, which had threatened the protection of her journalistic sources. The applicant complained, of an unjustified interference with the right to protection of journalistic sources. |
672 | Professionals | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1949 and lives in Craiova. He was, at the time of the events, a lecturer at Craiova University. A. Content of the disputed article 6. On 8 September 2001 the local newspaper Republica Oltenia published an article entitled “ Feature story on sex-blackmail professor ” (“ Poveste de lung metraj cu un professor de sex- şantaj ”). The article, written by R.C., was illustrated by two photographs showing a man and a woman naked and having sex. The man ’ s face was not visible. On the photographs were the handwritten words “the man in the photos is Ion Cârstea, university as.[ sistant ] at the electrotechnical faculty”. One of the photographs also appeared at the top of the front page of the newspaper. 7. The article started by mentioning that the man in the photographs was a university professor, an important person in society, who was involved in bribery, blackmail, child sex abuse and sexual deviance, the details of which would be given in the article. 8. The article continued by stating that in 1992 the applicant ’ s students had complained to the university dean that he was not very friendly during sessions and used to demand money from them. The applicant was also branded as litigious, because he had three trials pending before the courts, two of them brought with the purpose of contesting decisions taken by his university superiors. 9. Further on, the article contained the following statements : Sex pervert, criminal, blackmailer In 1982 a girl, so young that she was not even eighteen, got pregnant. Abortion being illegal, she decided to ask her second cousin, a university assistant at the time, to help her find a doctor. The cousin took advantage of the girl ’ s desperate situation. He might have told her that he would tell her mother if she did not let him “taste” her at least once. The atmosphere at the time may be inferred from the black and white photos attached. They were taken ... by the cousin himself. Apparently, even from a young age, Ion Cârstea had unorthodox habits. After satisfying his needs, Cârstea remembered that in fact he could not help his cousin, and advised her to sell some jewellery in order to raise money for a doctor. To develop the photos, Cârstea appealed to a repeat student and amateur photographer ... “In your fourth or fifth year you will have an exam with me and won ’ t pass” Cârstea said, according to the photographer. The student gave in to the blackmail, but after developing only gave Cârstea 24 photos instead of 36. The gesture had its logic, because in 1990, when our student managed to proceed to the fifth year, Cârstea tried to raise the stakes, by asking for a non-reimbursable loan of 130 [German] marks to pass an exam. The student was upset and went to the prosecutor ’ s office: “I made a complaint to the prosecutor ’ s office in [19] 90, accusing him of blackmail. I submitted the relevant evidence, namely the first [set of] photos, because he later came to me with six more films, also porn ... the prosecutor said that we were dealing with a university professor and should leave him alone, not amplify the case. Wax in the ears at the dean ’ s office Why not amplify the case? We ’ ll tell you: because between Cârstea and M.I., the University dean, there is a special relationship, which might also be based on blackmail ... We know that [M.]I. sold Cârstea a flat, but this doesn ’ t say much. That would be another case of blackmail, because we heard that Cârstea ’ s obsession with audio-video recordings remained unchanged ... As for the prosecutors who received a complaint from the blackmailed photographer, they were in no hurry to go to talk to the girl in the photos. That would have obliged them to open an investigation ex officio. Instead they sent the victim, the photographer-student, to take statements. And he obtained a statement signed by the girl ’ s mother, while the actress in the photos wrote on them “The man in the photo is Ion Cârstea, university as. [ sistant ] at the electrotechnical faculty. ” Hello non-indictment! Of course such evidence obtained under these circumstances had no legal relevance. The case would normally be greeted with a gracious non-indictment. ... Our photographer can hardly wait for justice to be done and to finish his studies now, twelve years after he proceeded to the fifth year.” B. Criminal proceedings for defamation 10. On 6 November 2001 the applicant lodged a criminal complaint with the Craiova District Court against the journalist R.C. and B.B.O., editor -in-chief of the newspaper, accusing them of defamation, an offence under Article 206 of the Criminal Code in force at the time. The applicant alleged that the facts described in the article were not true and that, together with the photographs, they had seriously damaged his reputation. In this connection, the applicant claimed from the two defendants 1 billion lei (RON ) for non-pecuniary damage and RON 500,000,000 for pecuniary damage. As to the compensation for pecuniary damage the applicant alleged that owing to the publication of the article and the photographs in question he could no longer be promoted to a higher position within the university. 11. R.C. and B.B.O. did not appear before the court, although they had been summoned on several occasions. 12. Two witnesses for the applicant were heard by the court. M.G. stated that as far as he knew the applicant, the facts described in the article in dispute were not true. P.T. made a statement in support of the compensation claimed by the applicant for pecuniary damage. 13. On 27 June 2002 the Craiova District Court acquitted the two defendants. It decided that they had not intended to defame the applicant, since they had merely brought to the public ’ s attention certain facts mentioned by other people, with whom the applicant did not have a good relationship. With respect to the photographs complained about, the court briefly held that “ ... it is not clear from the photos whether the person photographed is or is not the injured party [the applicant] ”. The court further rejected the applicant ’ s compensation claim, stating that there was no connection between the defendants ’ acts and the damage alleged. 14. An appeal on points of law ( recurs ) brought by the applicant against this decision was allowed by the Dolj County Court on 31 October 2003. It ordered a retrial of the case, due to the fact that the two defendants had not been identified and heard by the lower court. 15. A search conducted by the police concluded that B.B.O. had written the article in question under the alias of R.C. B.B.O. did not appear before the court, although he had been summoned. 16. On 8 April 2005 the Craiova District Court acquitted B.B.O. and rejected the applicant ’ s claim for compensation. Quoting the Court ’ s case ‑ law on freedom of expression, the Craiova District Court held that the applicant was a public figure and was hence exposed to criticism. The court also held that the defendant had not intended to defame the applicant, as he had just published information that he had collected from other people, such as students, professors, and so on. It also held: “The publication of the compromising photos accompanied by comments concerning the actors ’ identity is a shocking way of exercising the freedom of expression guaranteed by Article 10 of the Convention and Article 30 of the Romanian Constitution. ... Restricting the ability to publish documents because [they] might harm a person ’ s dignity would not be a necessary measure in a democratic society where the journalist ’ s sources were credible. As regards crimes against dignity committed through the media, a journalist ’ s investigation is always important and is based on direct and indirect sources, official documents and documents collected through leaked information, official and private statements, some confidential, not all free from doubt. What must be proved beyond any doubt is the journalist ’ s bad faith which, in the current case, has not been proved. The statements of witnesses M.G. and P.T., colleagues and friends of the applicant, with respect to his personality and professional reputation are credible, but strictly only prove the perception of these people .” The court analysed the applicant ’ s claim for compensation from the standpoint of Article 998 of the Civil Code and decided to reject the claim for non-pecuniary damage since the defendant ’ s guilt had not been proved, and the claim for pecuniary damage as unsubstantiated. 17. The applicant lodged an appeal on points of law against this decision, alleging that the defendant had not been summoned at the correct address and that, in his absence, the judges could not have correctly established the facts or whether he had acted in good or bad faith. The applicant further submitted that B.B.O. had not acted in good faith. Firstly, because he had never contacted him for his version of the facts and secondly, because according to his criminal record attached to the file, the journalist had several previous convictions for slander and defamation. The applicant also alleged that the journalist had made accusations which attracted criminal sanctions, and therefore their truthfulness could and should have been verified by the courts. 18. On 11 November 2005 the Dolj County Court finally dismissed the applicant ’ s appeal on points of law as ill-founded. The court held that, even though it may have been defamatory, having in mind the applicant ’ s profession and the media ’ s role in a democratic society, the article in question had just drawn attention to the behaviour of a public figure in the exercise of his functions. The court further held that the defendant journalist had wanted to “ expose certain backstage games and interests in a higher education institution ... with a view to remedying the situation and maintaining good educational process”. The applicant ’ s specific reasons for appealing on points of law, such as the incorrect summoning and the failure to hear the defendant ’ s statement and verify the truthfulness of the allegations published by the defendant, were not analysed by the court. | This case concerned the publication in a local newspaper of an article about the applicant, a university professor, which described in detail an incident in his sex life 19 years before and accusing him of bribery, blackmail, child sex abuse and sexual deviance. The applicant alleged that the domestic courts had failed to protect his reputation following the publication of the article and accompanying pictures. He notably submitted that the courts had failed, when assessing his complaint, to verify the truthfulness of the facts contained in the article. |
824 | Removal of / Limitations on legal capacity and right to vote | 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; ... ” | The applicant lost his right to vote because he had been placed under protection on psychiatric grounds. The Hungarian Constitution provided for an automatic and general restriction on the right to vote of persons placed under protection. |
21 | Freedom of expression (Article 10) | THE CIRCUMSTANCES OF THE CASE A. General context 13. The complaints raised in this application arise out of the Turkish military operations in northern Cyprus in July and August 1974 and the continuing division of the territory of Cyprus. At the time of the Court's consideration of the merits of the Loizidou v. Turkey case in 1996, the Turkish military presence at the material time was described in the following terms (Loizidou v. Turkey judgment of 18 December 1996 ( merits ), Reports of Judgments and Decisions 1996-VI, p. 2223, §§ 16-17): “16. Turkish armed forces of more than 30,000 personnel are stationed throughout the whole of the occupied area of northern Cyprus, which is constantly patrolled and has checkpoints on all main lines of communication. The army's headquarters are in Kyrenia. The 28th Infantry Division is based in Asha (Assia) with its sector covering Famagusta to the Mia Milia suburb of Nicosia and with about 14,500 personnel. The 39th Infantry Division, with about 15,500 personnel, is based at Myrtou village, and its sector ranges from Yerolakkos village to Lefka. TOURDYK (Turkish Forces in Cyprus under the Treaty of Guarantee) is stationed at Orta Keuy village near Nicosia, with a sector running from Nicosia International Airport to the Pedhieos River. A Turkish naval command and outpost are based at Famagusta and Kyrenia respectively. Turkish airforce personnel are based at Lefkoniko, Krini and other airfields. The Turkish airforce is stationed on the Turkish mainland at Adana. 17. The Turkish forces and all civilians entering military areas are subject to Turkish military courts, as stipulated so far as concerns 'TRNC citizens' by the Prohibited Military Areas Decree of 1979 (section 9) and Article 156 of the Constitution of the 'TRNC'.” 14. A major development in the continuing division of Cyprus occurred in November 1983 with the proclamation of the “ Turkish Republic of Northern Cyprus ” (the “TRNC”) and the subsequent enactment of the “TRNC Constitution” on 7 May 1985. This development was condemned by the international community. On 18 November 1983 the United Nations Security Council adopted Resolution 541 (1983) declaring the proclamation of the establishment of the “TRNC” legally invalid and calling upon all States not to recognise any Cypriot State other than the Republic of Cyprus. A similar call was made by the Security Council on 11 May 1984 in its Resolution 550 (1984). In November 1983 the Committee of Ministers of the Council of Europe decided that it continued to regard the government of the Republic of Cyprus as the sole legitimate government of Cyprus and called for respect of the sovereignty, independence, territorial integrity and unity of the Republic of Cyprus. 15. According to the respondent Government, the “TRNC” is a democratic and constitutional State which is politically independent of all other sovereign States including Turkey, and the administration in northern Cyprus has been set up by the Turkish-Cypriot people in the exercise of its right to self-determination and not by Turkey. Notwithstanding this view, it is only the Cypriot government which is recognised internationally as the government of the Republic of Cyprus in the context of diplomatic and treaty relations and the working of international organisations. 16. United Nations peacekeeping forces (“UNFICYP”) maintain a buffer-zone. A number of political initiatives have been taken at the level of the United Nations aimed at settling the Cyprus problem on the basis of institutional arrangements acceptable to both sides. To this end, inter-communal talks have been sponsored by the Secretary-General of the United Nations acting under the direction of the Security Council. In this connection, the respondent Government maintain that the Turkish-Cypriot authorities in northern Cyprus have pursued the talks on the basis of what they consider to be already agreed principles of bi-zonality and bi-communality within the framework of a federal constitution. Support for this basis of negotiation is found in the UN Secretary-General's Set of Ideas of 15 July 1992 and the UN Security Council resolutions of 26 August 1992 and 25 November 1992 confirming that a federal solution sought by both sides will be “bi-communal” and “bi-zonal”. Furthermore, and of relevance to the instant application, in 1981 the United Nations Committee on Missing Persons (“CMP”) was set up to “look into cases of persons reported missing in the inter-communal fighting as well as in the events of July 1974 and afterwards” and “to draw up comprehensive lists of missing persons of both communities, specifying as appropriate whether they are still alive or dead, and in the latter case approximate times of death”. The CMP has not yet completed its investigations. B. The previous inter-State applications 17. The events of July and August 1974 and their aftermath gave rise to three previous applications by the applicant Government against the respondent State under former Article 24 of the Convention. The first (no. 6780/74) and second (no. 6950/75) applications were joined by the Commission and led to the adoption on 10 July 1976 of a report under former Article 31 of the Convention (“the 1976 report”) in which the Commission expressed the opinion that the respondent State had violated Articles 2, 3, 5, 8, 13 and 14 of the Convention and Article 1 of Protocol No. 1. On 20 January 1979 the Committee of Ministers of the Council of Europe in turn adopted, with reference to an earlier decision of 21 October 1977, Resolution DH (79) 1 in which it expressed, inter alia, the conviction that “the enduring protection of human rights in Cyprus can only be brought about through the re-establishment of peace and confidence between the two communities; and that inter-communal talks constitute the appropriate framework for reaching a solution of the dispute”. In its resolution the Committee of Ministers strongly urged the parties to resume the talks under the auspices of the Secretary-General of the United Nations in order to agree upon solutions on all aspects of the dispute (see paragraph 16 above). The Committee of Ministers viewed this decision as completing its consideration of the case. The third application (no. 8007/77) lodged by the applicant Government was the subject of a further report under former Article 31 adopted by the Commission on 4 October 1983 (“the 1983 report”). In that report the Commission expressed the opinion that the respondent State was in breach of its obligations under Articles 5 and 8 of the Convention and Article 1 of Protocol No. 1. On 2 April 1992 the Committee of Ministers adopted Resolution DH (92) 12 in respect of the Commission's 1983 report. In its resolution the Committee of Ministers limited itself to a decision to make the 1983 report public and stated that its consideration of the case was thereby completed. C. The instant application 18. The instant application is the first to have been referred to the Court. The applicant Government requested the Court in their memorial to “decide and declare that the respondent State is responsible for continuing violations and other violations of Articles 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 14, 17 and 18 of the Convention and of Articles 1 and 2 of Protocol No. 1”. These allegations were invoked with reference to four broad categories of complaints: alleged violations of the rights of Greek-Cypriot missing persons and their relatives; alleged violations of the home and property rights of displaced persons; alleged violations of the rights of enclaved Greek Cypriots in northern Cyprus; alleged violations of the rights of Turkish Cypriots and the Gypsy community in northern Cyprus. D. The Commission's findings of fact in the instant application 19. The Court considers it appropriate at this stage to summarise the Commission's findings of fact in respect of the various violations of the Convention alleged by the applicant Government as well as the essential arguments advanced by both parties and the documentary and other evidence relied on by the Commission. 1. Alleged violations of the rights of Greek-Cypriot missing persons and their relatives 20. The applicant Government essentially claimed in their application that about 1,491 Greek Cypriots were still missing twenty years after the cessation of hostilities. These persons were last seen alive in Turkish custody and their fate has never been accounted for by the respondent State. 21. The respondent Government maintained in reply that there was no proof that any of the missing persons were still alive or were being kept in custody. In their principal submission, the issues raised by the applicant Government should continue to be pursued within the framework of the United Nations Committee on Missing Persons (see paragraph 16 above) rather than under the Convention. 22. The Commission proceeded on the understanding that its task was not to establish what actually happened to the Greek-Cypriot persons who went missing following the Turkish military operations conducted in northern Cyprus in July and August 1974. Rather, it saw its task as one of determining whether or not the alleged failure of the respondent State to clarify the facts surrounding the disappearances constituted a continuing violation of the Convention. 23. To that end, the Commission had particular regard to its earlier findings in its 1976 and 1983 reports. It recalled that in its 1976 report it had stated that it was widely accepted that a considerable number of Cypriots were still missing as a result of armed conflict in Cyprus and that a number of persons declared to be missing were identified as Greek Cypriots taken prisoner by the Turkish army. This finding, in the Commission's opinion at the time, created a presumption of Turkish responsibility for the fate of persons shown to be in Turkish custody. While noting that killings of Greek-Cypriot civilians had occurred on a large scale, the Commission also considered at the time of its 1976 report that it was unable to ascertain whether, and under what circumstances, Greek-Cypriot prisoners declared to be missing had been deprived of their life. 24. In the present case, the Commission further recalled that in its 1983 report it found it established that there were sufficient indications in an indefinite number of cases that missing Greek Cypriots had been in Turkish custody in 1974 and that this finding once again created a presumption of Turkish responsibility for the fate of these persons. 25. The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in Turkish or Turkish-Cypriot custody. In this connection, the Commission had regard to the following: a statement of Mr Denktaş, “President of the TRNC”, broadcast on 1 March 1996, in which he admitted that forty-two Greek-Cypriot prisoners were handed over to Turkish-Cypriot fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to Turkey; the broadcast statement of Professor Yalçin Küçük, a former Turkish officer who had served in the Turkish army at the time and participated in the 1974 military operation in Cyprus, in which he suggested that the Turkish army had engaged in widespread killings of, inter alia, civilians in so-called cleaning-up operations; the Dillon Report submitted to the United States Congress in May 1998 indicating, inter alia, that Turkish and Turkish-Cypriot soldiers rounded up Greek-Cypriot civilians in the village of Asha on 18 August 1974 and took away males over the age of 15, most of whom were reportedly killed by Turkish-Cypriot fighters; the written statements of witnesses tending to corroborate the Commission's earlier findings that many persons now missing were taken into custody by Turkish soldiers or Turkish-Cypriot paramilitaries. 26. The Commission concluded that, notwithstanding evidence of the killing of Greek-Cypriot prisoners and civilians, there was no proof that any of the missing persons were killed in circumstances for which the respondent State could be held responsible; nor did the Commission find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent State. On the other hand, the Commission found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims' relatives. 27. The Commission further concluded that its examination of the applicant Government's complaints in the instant application was not precluded by the ongoing work of the CMP. It noted in this connection that the scope of the investigation being conducted by the CMP was limited to determining whether or not any of the missing persons on its list were dead or alive; nor was the CMP empowered to make findings either on the cause of death or on the issue of responsibility for any deaths so established. Furthermore, the territorial jurisdiction of the CMP was limited to the island of Cyprus, thus excluding investigations in Turkey where some of the disappearances were claimed to have occurred. The Commission also observed that persons who might be responsible for violations of the Convention were promised impunity and that it was doubtful whether the CMP's investigation could extend to actions by the Turkish army or Turkish officials on Cypriot territory. 2. Alleged violations of the rights of the displaced persons to respect for their home and property 28. The Commission established the facts under this heading against the background of the applicant Government's principal submission that over 211,000 displaced Greek Cypriots and their children continued to be prevented as a matter of policy from returning to their homes in northern Cyprus and from having access to their property there for any purpose. The applicant Government submitted that the presence of the Turkish army together with “TRNC”-imposed border restrictions ensured that the return of displaced persons was rendered physically impossible and, as a corollary, that their cross-border family visits were gravely impeded. What started as a gradual and continuing process of illegality over the years had now resulted in the transfer of the property left behind by the displaced persons to the “TRNC” authorities without payment of compensation and its re-assignment, together with “title deeds”, to State bodies, Turkish Cypriots and settlers from Turkey. 29. The respondent Government maintained before the Commission that the question of the Varosha district of Famagusta along with the issues of freedom of movement, freedom of settlement and the right of property could only be resolved within the framework of the inter-communal talks (see paragraph 16 above) and on the basis of the principles agreed on by both sides for the conduct of the talks. Until an overall solution to the Cyprus question, acceptable to both sides, was found, and having regard to security considerations, there could be no question of a right of the displaced persons to return. The respondent Government further submitted that the regulation of property abandoned by displaced persons, as with restrictions on cross-border movement, fell within the exclusive jurisdiction of the “TRNC” authorities. 30. The Commission found that it was common knowledge that with the exception of a few hundred Maronites living in the Kormakiti area and Greek Cypriots living in the Karpas peninsula, the whole Greek-Cypriot population which before 1974 resided in the northern part of Cyprus had left that area, the large majority of these people now living in southern Cyprus. The reality of this situation was not contested by the respondent Government. 31. The Commission noted with reference to its earlier findings in its 1976 and 1983 reports that there was no essential change in the situation obtaining at the time of the introduction of the instant application. Accordingly, and this was not disputed either by the respondent Government, displaced Greek Cypriots had no possibility of returning to their homes in northern Cyprus and were physically prevented from crossing into the northern part on account of the fact that it was sealed off by the Turkish army. The arrangements introduced by the “TRNC” authorities in 1998 to allow Greek Cypriots and Maronites to cross into northern Cyprus for the purposes of family visits or, as regards Greek Cypriots, visits to the Apostolos Andreas Monastery, did not affect this conclusion. 32. Nor did the respondent Government dispute the fact that Greek-Cypriot owners of property in northern Cyprus continued to be prevented from having access to, controlling, using and enjoying their property. As to the fate of that property, the Commission found it established that up until 1989 there was an administrative practice of the Turkish-Cypriot authorities to leave the official Land Register unaffected and to register separately the “abandoned” property and its allocation. The beneficiaries of allocations were issued with “possessory certificates” but not “deeds of title” to the properties concerned. However, as from June 1989 the practice changed and thereafter “title deeds” were issued and the relevant entries concerning the change of ownership were made in the Land Register. The Commission found it established that, at least since June 1989, the Turkish-Cypriot authorities no longer recognised any ownership rights of Greek Cypriots in respect of their properties in northern Cyprus. The Commission found confirmation for this finding in the provisions of “Article 159 § 1 (b) of the TRNC Constitution” of 7 May 1985 and “Law no. 52/1995” purporting to give effect to that provision. 33. Although the respondent Government pointed out in their submissions to the Commission that the issue of the right of displaced Greek Cypriots to return to their homes was a matter to be determined within the framework of the inter-communal talks sponsored by the Secretary-General of the United Nations (see paragraph 16 above), the Commission found that there had been no significant progress in recent years in the discussion of issues such as freedom of settlement, payment of compensation to Greek Cypriots for the interference with their property rights, or restitution of Greek-Cypriot property in the Varosha district. 3. Alleged violations arising out of the living conditions of Greek Cypriots in northern Cyprus 34. The applicant Government adduced evidence in support of their complaint that the dwindling number of Greek Cypriots living in the Karpas peninsula of northern Cyprus were subjected to continuing oppressive treatment which amounted to a complete denial of their rights and a negation of their human dignity. In addition to the harassment and intimidation which they suffered at the hands of Turkish settlers, and which has gone unpunished, the enclaved Greek Cypriots laboured under restrictions which violated many of the substantive rights contained in the Convention. The continuous daily interferences with their rights could not be redressed at the local level on account of the absence of effective remedies before the “TRNC” courts. Similar but less extensive restrictions applied to the Maronite population living in the Kormakiti area of northern Cyprus. 35. The respondent Government maintained before the Commission that effective judicial remedies were available to all Greek Cypriots living in northern Cyprus. However, they claimed that the applicant Government actively discouraged them from taking proceedings in the “TRNC”. The respondent Government further submitted that the evidence before the Commission did not provide any basis of fact for the allegations made. 36. The Commission established the facts under this heading with reference to materials submitted by both Governments. These materials included, inter alia, written statements of persons affected by the restrictions alleged by the applicant Government; press reports dealing with the situation in northern Cyprus; case-law of the “TRNC” courts on the availability of remedies in the “TRNC”; “TRNC legislation” and decisions of the “TRNC Council of Ministers” on entry and exit arrangements at the Ledra Palace check-point. The Commission also had regard to United Nations documents concerning the living conditions of enclaved Greek Cypriots and especially to the UN Secretary-General's progress reports of 10 December 1995 and 9 March 1998 on the humanitarian review carried out by UNFICYP in 1994-95 concerning the living conditions of Karpas Greek Cypriots, the so-called “Karpas Brief”. 37. Furthermore, the Commission's delegates heard the evidence of fourteen witnesses on the situation of Greek Cypriots and Maronites living in northern Cyprus. These witnesses comprised two persons who were closely associated with the preparation of the “Karpas Brief” as well as persons proposed by both Governments. The delegates also visited, on 23 and 24 February 1998, a number of localities in northern Cyprus, including Greek-Cypriot villages in the Karpas area, and heard statements from officials and other persons encountered during the visits. 38. The Commission considered the above-mentioned “Karpas Brief” an accurate description of the situation of the enclaved Greek-Cypriot and Maronite populations at about the time of the introduction of the instant application and that the proposals for remedial action recommended by UNFICYP following the humanitarian review reflected the real needs of these groups in the face of administrative practices which actually existed at the material time. Although the Commission noted that there had been a considerable improvement in the overall situation of the enclaved populations, as evidenced by the UN Secretary-General's progress reports on the “Karpas Brief” recommendations, there still remained a number of severe restrictions. These restrictions were not laid down in any “TRNC legislation” and were in the nature of administrative practices. 39. The Commission further found that there existed a functioning court system in the “TRNC” which was in principle accessible to Greek Cypriots living in northern Cyprus. It appeared that at least in cases of trespass to property or personal injury there had been some successful actions brought by Greek-Cypriot litigants before the civil and criminal courts. However, in view of the scarcity of cases brought by Greek Cypriots, the Commission was led to conclude that the effectiveness of the judicial system for resident Greek Cypriots had not really been tested. 40. In a further conclusion, the Commission found that there was no evidence of continuing wrongful allocation of properties of resident Greek Cypriots to other persons during the period under consideration. However, the Commission did find it established that there was a continuing practice of the “TRNC” authorities to allocate to Turkish-Cypriots or immigrants the property of Greek Cypriots who had died or left northern Cyprus. 41. In the absence of legal proceedings before the “TRNC” courts, the Commission noted that it had not been tested whether or not Greek Cypriots or Maronites living in northern Cyprus were in fact considered as citizens enjoying the protection of the “TRNC Constitution”. It did however find it established that, in so far as the groups at issue complained of administrative practices such as restrictions on their freedom of movement or on family visits which were based on decisions of the “TRNC Council of Ministers”, any legal challenge to these restrictions would be futile given that such decisions were not open to review by the courts. 42. Although the Commission found no evidence of cases of actual detention of members of the enclaved population, it was satisfied that there was clear evidence that restrictions on movement and family visits continued to be applied to Greek Cypriots and Maronites notwithstanding recent improvements. It further observed that an exit visa was still necessary for transfers to medical facilities in the south, although no fees were levied in urgent cases. There was no evidence to confirm the allegation that the processing of applications for movement was delayed in certain cases with the result that the health or life of patients was endangered; nor was there any indication of a deliberate practice of delaying the processing of such applications. 43. The Commission found it established that there were restrictions on the freedom of movement of Greek-Cypriot and Maronite schoolchildren attending schools in the south. Until the entry into force of the decision of the “TRNC Council of Ministers” of 11 February 1998, they were not allowed to return permanently to the north after having attained the age of 16 in the case of males and 18 in the case of females. The age-limit of 16 years was still maintained for Greek-Cypriot male students. Up to the age-limit, certain restrictions applied to the visits of students to their parents in the north, which were gradually relaxed. However, even today such visits are subject to a visa requirement and a reduced “entry fee”. 44. As to educational facilities, the Commission held that, although there was a system of primary-school education for the children of Greek Cypriots living in northern Cyprus, there were no secondary schools for them. The vast majority of schoolchildren went to the south for their secondary education and the restriction on the return of Greek-Cypriot and Maronite schoolchildren to the north after the completion of their studies had led to the separation of many families. Furthermore, school textbooks for use in the Greek-Cypriot primary school were subjected to a “vetting” procedure in the context of confidence-building measures suggested by UNFICYP. The procedure was cumbersome and a relatively high number of school-books were being objected to by the Turkish-Cypriot administration. 45. Aside from school-books, the Commission found no evidence of any restrictions being applied during the period under consideration to the importation, circulation or possession of other types of books; nor was there evidence of restrictions on the circulation of newspapers published in southern Cyprus. However, there was no regular distribution system for the Greek-Cypriot press in the Karpas area and no direct post and telecommunications links between the north and south of the island. It was further noted that the enclaved population was able to receive Greek-Cypriot radio and television. 46. The Commission did not find any conclusive evidence that letters destined for Greek Cypriots were opened by the “TRNC” police or that their telephones were tapped. 47. As to alleged restrictions on religious worship, the Commission found that the main problem for Greek Cypriots in this connection stemmed from the fact that there was only one priest for the whole Karpas area and that the Turkish-Cypriot authorities were not favourable to the appointment of additional priests from the south. The Commission delegates were unable to confirm during their visit to the Karpas area whether access to the Apostolos Andreas Monastery was free at any time for Karpas Greek Cypriots. It appeared to be the case that on high religious holidays (which occur three times a year) visits to the monastery are also allowed to Greek Cypriots from the south. 48. Concerning alleged restrictions on the freedom of association of the enclaved population, the Commission observed that the relevant “TRNC” law on associations only covered the creation of associations by Turkish Cypriots. 4. Alleged violations in respect of the rights of Turkish Cypriots and the Turkish-Cypriot Gypsy community in northern Cyprus 49. The applicant Government contended before the Commission that Turkish Cypriots living in northern Cyprus, especially political dissidents and the Gypsy community, were the victims of an administrative practice of violation of their Convention rights. They adduced evidence in support of their claim that these groups were victims of arbitrary arrest and detention, police misconduct, discrimination and ill-treatment and interferences in various forms with other Convention rights such as, inter alia, fair trial, private and family life, expression, association, property and education. 50. The respondent Government essentially maintained that the above allegations were unsubstantiated on the evidence and pointed to the availability of effective remedies in the “TRNC” to aggrieved persons. 51. The Commission's investigation into the applicant Government's allegations was based mainly on the oral evidence of thirteen witnesses who testified before the Commission's delegates on the situation of Turkish Cypriots and the Gypsy community living in northern Cyprus. The witnesses were proposed by both parties. Their evidence was taken by the delegates in Strasbourg, Cyprus and London between November 1997 and April 1998. 52. The Commission found that there existed rivalry and social conflict between the original Turkish Cypriots and immigrants from Turkey who continued to arrive in considerable numbers. Some of the original Turkish Cypriots and their political groups and media resented the “TRNC” policy of full integration for the settlers. 53. Furthermore, while there was a significant incidence of emigration from the “TRNC” for economic reasons, it could not be excluded that there were also cases of Turkish Cypriots having fled the “TRNC” out of fear of political persecution. The Commission considered that there was no reason to doubt the correctness of witnesses' assertions that in a few cases complaints of harassment or discrimination by private groups of or against political opponents were not followed up by the “TRNC” police. However, it concluded that it was not established beyond reasonable doubt that there was in fact a consistent administrative practice of the “TRNC” authorities, including the courts, of refusing protection to political opponents of the ruling parties. In so far as it was alleged by the applicant Government that the authorities themselves were involved in the harassment of political opponents, the Commission did not have sufficient details concerning the incidents complained of (for example, the dispersing of demonstrations, short-term arrests) which would allow it to form an opinion as to the justification or otherwise of the impugned acts. The Commission noted that, in any event, it did not appear that the remedy of habeas corpus had been invoked by persons claiming to be victims of arbitrary arrest or detention. 54. Regarding the alleged discrimination against and arbitrary treatment of members of the Turkish-Cypriot Gypsy community, the Commission found that judicial remedies had apparently not been used in respect of particularly grave incidents such as the pulling down of shacks near Morphou and the refusal of airline companies to transport Gypsies to the United Kingdom without a visa. 55. In a further conclusion, the Commission observed that there was no evidence before it of Turkish-Cypriot civilians having been subjected to the jurisdiction of military courts during the period under consideration. Furthermore, and with respect to the evidence before it, the Commission considered that it had not been established that, during the period under consideration, there was an official prohibition on the circulation of Greek-language newspapers in northern Cyprus or that the creation of bi-communal associations was prevented. In respect of the alleged refusal of the “TRNC” authorities to allow Turkish Cypriots to return to their properties in southern Cyprus, the Commission observed that no concrete instances were referred to it of any persons who had wished to do so during the period under consideration. | In this case, which related to the situation that has existed in northern Cyprus since the conduct of military operations there by Turkey in July and August 1974 and the continuing division of the territory of Cyprus, Cyprus alleged, among other things, a violation of Article 10 (freedom of expression) of the Convention, as regards the Karpas Greek Cypriots, because of the excessive censorship of school-books. |
131 | Servitude and forced or compulsory labour | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants, C.N. and V., are French nationals who were born in 1978 and 1984 respectively in Burundi. They are sisters. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. C. N. (“the first applicant”) arrived in France in 1994, at the age of sixteen. V. (“the second applicant”) and their three younger sisters arrived in France in 1995. The second applicant was ten years old at the time. Their arrival was arranged by their aunt, N., wife of Mr M., a national of Burundi. 8. The applicants left their country of origin, Burundi, following the civil war in 1993, during which their parents were purportedly killed. On a trip to Burundi, Mrs M. organised a family council. According to a record of the meeting dated 25 February 1995, it was decided to give guardianship and custody of the applicants and their younger sisters to Mr and Mrs M. The family considered that the couple, who lived in France, were the only members of the family “capable of taking care of [the applicants] and giving them a proper education and upbringing”. 9. Mr M., a former government minister of Burundi, was a UNESCO staff member and, as such, enjoyed diplomatic immunity. The spouses owned a four-bedroom detached house in Ville d’Avray in the Hauts de Seine département. They had seven children, one of whom was disabled. 10. When they arrived in France the applicants were housed in what they described as a poorly heated unconverted cellar in the basement of the house. The Government pointed out that it was not a cellar as such, but a basement room with a door opening into the garden and a window. The room contained a boiler, a washing machine and two beds. At the beginning of their stay the applicants shared the room with their three younger sisters. 11. At the same time, Mr and Mrs M. contacted an evangelical church with a view to placing the applicants’ three younger sisters with foster families, except in the school holidays. They were in fact taken in by two families in 1995 and 1996. In June 1996 two of the three sisters went to spend a few weeks with Mr and Mrs M.; the foster family, who had parental authority over them, had to take legal action to get them back in April 1997. 12. The applicants said that as soon as they arrived they had been made to do all the housework and domestic chores necessary for the upkeep of the house and the M. family of nine. They alleged that they had been used as “housemaids”. The first, older applicant said that she had to look after the family’s disabled son and do the gardening. They were not paid for their work or given any days off. 13. The applicants affirmed that they had had no access to a bathroom and only an unhygienic makeshift toilet at their disposal. The Government submitted that they were not denied access to the bathroom, but that it was limited to certain times of day. The applicants added that they were not allowed to eat with the family. They were given only pasta, rice and potatoes to eat, and occasionally leftovers from the family’s meat dishes. They had no leisure activities. 14. The second applicant was a pupil in the Ville d’Avray primary school from May 1995, then in the special general and vocational learning department of a Versailles secondary school from the start of the 1997 school year. As a non-French speaker she had had integration difficulties which she said increased her isolation. Her aunt nevertheless objected to her seeing the school psychologist as suggested by the teaching staff. Nor was the second applicant given any additional help in learning to read French, allegedly because this would have meant paying for her to have school meals. In spite of these difficulties she did well at school. When she got home from school she would have to do her homework then help her sister with the domestic chores. 15. The first applicant was never sent to school or given any vocational training. She spent all day doing housework and looking after her disabled cousin. The Government pointed out that the applicant had admitted in the course of the subsequent criminal proceedings that she had in fact refused to go to school. 16. On 19 December 1995 the Hauts de Seine welfare department submitted a report on children in danger to the Nantes public prosecutor according to which there was a risk that the children were being exploited “to do household chores among other things”. Following an investigation by the police child protection services, it was decided not to take any further action. 17. The first applicant turned eighteen on 23 March 1996. She contended that Mr and Mrs M. did nothing to legalise her situation vis-à-vis the authorities. According to the Government, her situation was not illegal because she was included in her aunt’s diplomatic passport. 18. From September 1997 the aunt refused to pay the second applicant’s bus fare to school. The applicant explained that when her uncle bought her a bus pass behind his wife’s back, her aunt got very angry and threatened to hit her. When she had no bus pass the second applicant had either to walk to school, which was a forty-five minute walk from where she lived, or to take the bus without a ticket. The applicant said that her aunt also refused to pay for her to have school meals. 19. In July 1998 the second applicant, after going several months without urgent dental treatment, had had to go to a dentist near the school at her own initiative. She had never received the orthopaedic treatment the dentist prescribed. As to the first applicant, she alleged that she had been hospitalised three times under her cousin’s name after being beaten by one of the of the boys in the family. 20. The applicants further alleged that they had been physically and verbally harassed on a daily basis by their aunt, who regularly threatened to send them back to Burundi to punish them and made disparaging remarks about their late parents. The second applicant claimed that once, when she was sick in bed, her aunt had threatened to hit her with a broomstick to make her clean the kitchen. 21. On 4 January 1999 the association “ Enfance et Partage ” drew the attention of the Nanterre public prosecutor’s office to the applicants’ situation, stating that the conditions they lived in – in the insalubrious, unheated basement of the M. family’s house – were contrary to human dignity, that the first applicant was used as a “housemaid” and had to look after the family’s disabled eldest son, that their aunt refused to buy the second applicant a travel card or pay for her to have school meals, and that both girls complained of ill-treatment and physical aggression by their aunt. The applicants ran away from the house the next day and were taken into the association’s care. 22. On 7 January 1999 the Nanterre public prosecutor’s office applied to the Director General of UNESCO to have Mr M.’s diplomatic immunity lifted. 23. On 27 January 1999 that request was granted, exceptionally, as part of an investigation into allegations of ill-treatment. The immunity of Mr M.’s wife was also lifted. 24. On 29 January 1999 a preliminary investigation was opened on the instructions of the Nanterre public prosecutor’s office. 25. On 2 February 1999 the police interviewed the two applicants, who confirmed the terms of the report by “ Enfance et Partage ”. They did, however, explain that their uncle had tried to temper his wife’s behaviour. The second applicant said that when their situation was first reported in 1995 she had not dared to tell the police the truth for fear of reprisals from her aunt. 26. That same day the association “ Enfance et Partage ” gave the police photos taken by the applicants in November 1998 of the basement they lived in. The photos confirmed the deplorable conditions of hygiene and insalubrity they lived in. 27. On 3 February 1999 Mr M. was interviewed by the police. He said he had done nothing wrong and that he had helped the applicants by bringing them to France. He told them that his wife, Mrs M., had left for Burundi on 15 January 1999. He also complained about an article in the press on 28 January 1999 making accusations against him and his wife. 28. The police established that, contrary to what Mr M. had told them, his wife had gone back to Burundi on 2 February 1999, a few days after the article appeared in the press. 29. Mr M. denied the investigators access to his house, alleging that his lawyer was not available. He added that renovation work was being done on the house. 30. On 16 February 1999 a judicial investigation was opened against Mr and Mrs M. for degrading treatment (Articles 225-14 and 225-15 of the Criminal Code) and against Mrs M. for wilful violence on a child under fifteen years of age, by a person in a position of authority, not entailing unfitness for work for more than eight days. An arrest warrant was issued against Mrs M. and Mr M. was placed under judicial supervision. 31. The applicants joined the proceedings as civil parties. 32. On 22 April and 3 May 1999 the applicants were heard by the investigating judge. They confirmed their previous statements and added that their situation at the home of Mr and Mrs M. had gradually deteriorated. The second applicant told the judge that at the time of the first report and investigation in 1995-1996 she had said nothing to the police because “things were not [yet] all that bad” with her aunt (a fact confirmed by the first applicant at a later hearing on 30 June 2000). The applicants emphasised the leading role played by their aunt, who had no qualms about hitting them and waking them up in the middle of the night if there was the slightest problem. The first applicant said she had even had to sleep outside the house one night. The applicants confirmed that their uncle had tried to smooth things over, but he was frequently away from home. When present he would often try to reason with his wife, and had even paid their bus fares or bought them clothes without his wife knowing. 33. On 29 April 1999 Mr M. was charged with infringement of human dignity under Articles 225-14 and 225-15 of the Criminal Code. 34. On 30 June 1999 the results of the medico-psychological examination of the two applicants ordered by the investigating judge were submitted. They revealed that the applicants showed no signs of serious psychological disorders or psychiatric decompensation, but that the psychological impact of what they had experienced was characterised by mental suffering, combined, in the case of the first applicant, with feelings of fear and a sense of abandonment, as the threat of being sent back to Burundi was synonymous in her mind with a threat of death and the abandonment of her younger sisters. As to the second applicant, the report stated that being sent back to Burundi was felt to be “even worse” than living with Mr and Mrs M. 35. On 30 June and 14 September 1999 the investigating judge noted that Mrs M. had twice failed to appear. She explained that she had been in Burundi. She was not heard until 15 June 2000. 36. Investigations carried out at the home of Mr and Mrs M. at the judge’s request revealed that the basement of the house had been completely refurbished after the applicants left. 37. On 5 February 2001 the investigating judge at the Nanterre tribunal de grande instance ordered Mrs M.’s committal for trial before the criminal court on charges of wilful violence on a child under fifteen years of age, by a person in a position of authority, not entailing unfitness for work for more than eight days (an offence punishable under Article 222-13 of the Criminal Code) in respect of the second applicant, and on charges of subjecting a person who is vulnerable or in a position of dependence to working conditions (in respect of the first applicant) or living conditions (in respect of both applicants) incompatible with human dignity (offences punishable under Articles 225-14 and 225-15 of the Criminal Code). In the same order, the investigating judge requested the termination of the proceedings against Mr M. concerning the charges of offences against human dignity. 38. On 7 February 2001 the applicants appealed against the decision to terminate that part of the proceedings. 39. On 18 December 2002 the Investigation Division of the Versailles Court of Appeal ordered further inquiries to determine the exact scope and measure of the lifting of Mr M.’s immunity by the Director General of UNESCO, and whether it applied to the preliminary investigation alone or to the proceedings as a whole. 40. On 30 April 2003 the Investigation Division of the Versailles Court of Appeal set aside the order of 5 February 2001 terminating part of the proceedings and ordered Mr M.’s committal for trial by the criminal court for having subjected the applicants, and also their three younger sisters, to treatment contrary to human dignity. As to the scope of the lifting of Mr M.’s immunity, the court found that no immunity applied, for the following reasons: “The explicit terms of the letter addressed to the court on 20 January 2003 by the Protocol Department of the Ministry of Foreign Affairs on behalf of the Minister, who has authority to interpret and measure the scope of the immunity granted to diplomats, dispel all uncertainty about the situation of Mr [M.]; the latter ceased to be a UNESCO staff member on 30 November 2001; as the deeds in question were not committed in the course of his duties, he no longer enjoys diplomatic immunity; there is accordingly no obstacle to his prosecution;” 41. Mr M. appealed against that ruling. 42. On 12 April 2005 the Criminal Division of the Court of Cassation confirmed that Mr M. did not enjoy diplomatic immunity, but set aside the Court of Appeal’s judgment of 30 April 2003 in so far as it had ordered Mr. M.’s committal for trial for offences committed against the applicants’ three sisters, as this was outside the remit of the investigating judge. 43. On 22 January 2007 the Nanterre Criminal Court rejected the objections as to admissibility raised by Mr and Mrs M. based on their diplomatic immunity. It adjourned the case to a hearing on 17 September 2007 to rule on the merits. 44. In a judgment of 17 September 2007 the Nanterre Criminal Court found Mr and Mrs M. guilty as charged. Mr M. was sentenced to twelve months’ imprisonment, suspended, and fined 10,000 euros (EUR). Mrs M. was sentenced to fifteen months’ imprisonment, suspended, and fined EUR 10,000. The couple were jointly ordered to pay the first applicant EUR 24,000 in damages, and the second applicant one symbolic euro, as she had requested. The relevant passages of the judgment read as follows: “... It appears from the information available that [the applicants], who found themselves in a situation of total dependence at the time, who were orphans and minors and whose papers had been taken away, were housed by their uncle and aunt in deplorable conditions of hygiene in an unheated, insalubrious basement; the photos adduced by counsel for the civil parties ... show the state of the place they lived in from 1995 to 1999; they had no access to the bathroom and had to fetch a pail of water from the kitchen to wash themselves, and the elder sister [the first applicant] was used as a housemaid by the couple [Mr and Mrs M.] with no day off and no pay. It is further established that they did not pay for [the second applicant’s] school meals or travel card, obliging her to walk several kilometres to school along a road through woods. It is also established that the accused refused to give them the medical treatment they needed, even though [Mr M.] had registered them with the UNESCO social security scheme. Although some of the girls’ statements indicate that the role played by [Mr M.] was a rather passive one, probably to avoid having to stand up to his wife’s strong character, he could not have been unaware of the difference in the way his nieces and his own children were treated. His frequent absences from home could not have made him unaware of the situation. In addition, he refused to let the police take photos of the basement, and then took pains to have it very comfortably refurbished when released from police custody. That being so, the actus reus and mens rea of the offence against human dignity in respect of the two accused are made out and they must be convicted.” 45. Mr and Mrs M. appealed against that judgment on 24 and 25 September 2007. 46. On 29 June 2009 the Versailles Court of Appeal set aside the judgment on the charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions, acquitted the defendants of that charge and dismissed the applicants’ claims for compensation for the damage suffered in respect of that charge. However, it upheld the guilty finding against Mrs M. on the charge of aggravated wilful violence against the second applicant. She was fined EUR 1,500 and ordered to pay one euro in respect of non-pecuniary damage. 47. The relevant passages of the judgment read as follows: “ The charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions : It is not disputed that [Mrs M.] went to fetch her nieces at a time when a civil war was raging in Burundi that left 250,000 people dead and orphaned about 50,000 children; ... the elements of the proceedings show that [Mr and Mrs M.] paid their nieces’ fare from Burundi to France; this shows that their concern was to protect these members of their family by placing the children out of harm’s way; ... Under Article 225-14 of the Criminal Code in force at the material time, offences against human dignity were characterised by the fact of abusing a person’s vulnerability or situation of dependence to subject them to working or living conditions incompatible with human dignity, and were punishable by two years’ imprisonment and a fine of 500,000 francs (FRF); the legislation now in force punishes such offences more severely and gives them a broader definition; ... the new, harsher law cannot be applied retroactively; In the instant case, while the living and domestic working conditions were poor, uncomfortable and blameworthy, they cannot be qualified as degrading in the context and the circumstances of family solidarity with no intention of economic gain or of exploiting another’s work; the living and working conditions the defendants gave their nieces were not intended to debase them as human beings or to violate their fundamental rights, but obeyed a duty to help them; ... [Mr and Mrs M.] cannot be blamed for not having asked their own children, who shared their rooms, ... to give up their comfort; and they cannot reasonably be blamed for giving more to their own children than to their nieces; ... The case materials show that the boiler which heated the house was in the basement where the complainants lived and the temperature recorded in their room during the investigation was in excess of 20 oC; As stated by the defendants’ daughter ... and confirmed by [the second applicant], the aunt had not formally denied them access to the bathroom, but simply wanted to rationalise its use because of the large number of people who had to use it; ... ... even though more could have been done to secure [the first applicant’s] integration, [Mrs M.] did call the welfare services for help; the fact that [the first applicant], who did not speak French and did not want to go to school, was required to play an active part in the housework as the eldest sister, even without pay, did not amount to working conditions incompatible with human dignity, or slave labour, or violation of any fundamental personal rights, but rather to repayment for her having been permanently taken into the home and care of an already large family; there is no evidence in the case file that [Mr and Mrs M.] stood to make any financial gain by taking their nieces into their home and care, for they were an extra financial burden for them, taken on out of moral obligation; According to the testimony, the living and working conditions were compatible with [the applicants’] human dignity; and it has not been established that the defendants took advantage of the vulnerability of their orphaned nieces or the fact that they were dependent on them; Therefore, as the mens rea of the charge of subjecting several vulnerable people, including at least one minor, to indecent living and working conditions has not been made out, the constituent elements of the offence have not been established and the judgment in respect of this charge must be set aside ... The charges against [Mrs M.] of wilful violence with two aggravating circumstances on [the second applicant], a child under 15 years of age, by a person in a position of authority: [The second applicant] told the police that her aunt hit her when she asked for a travel card or when her uncle bought her one ...; she also alleged that she was slapped when she accidentally dropped a plate; on one occasion her aunt allegedly threatened to hit her with a broom and on another occasion she violently scratched her hand; ... There is no doubt that [the second applicant] was under fifteen years of age between January 1995 and 10 December 1998, and that she was an orphan under the authority of her aunt, who had taken her in; the investigation established that [Mrs M.] shouted at [the second applicant], scolded her and threatened to send her back to Africa; The facts are established ...; the charge is made out in all its elements ...; the judgment convicting [Mrs M.] of aggravated violence must be upheld ...” 48. The applicants appealed against that judgment on 3 July 2009. Mrs M. also appealed. The Principal Public Prosecutor did not appeal. 49. On 23 June 2010 the Criminal Division of the Court of Cassation rejected the appeals lodged by the applicants and Mrs M. The relevant passage from the judgment reads as follows: “The terms of the impugned judgment place the Court of Cassation in a position to affirm that the Court of Appeal, for reasons which are neither insufficient nor contradictory and which address the essential grounds raised in the pleadings submitted to it, stated the reasons for its decision that, in the light of the evidence before it, the charge of subjecting vulnerable or dependent people, including at least one minor, to living or working conditions incompatible with human dignity had not been made out against the accused, and had thus justified its decision dismissing the claims of the civil parties. ...” | The case concerned allegations of servitude or forced or compulsory labour (unremunerated domestic chores in their aunt and uncle’s home) by two orphaned Burundi sisters aged 16 and ten years. |
341 | Police violence | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant, who is of Nigerian origin, was born in 1977 and has been lawfully resident in Spain since 2003. A. 1st episode: events of 15 and 21 July 2005 7. On 15 July 2005 the applicant was on the public highway in the El Arenal district near Palma de Mallorca, where she worked as a prostitute, when two officers of the national police force asked to see her identity and then ordered her to leave the premises, which she did immediately. 8. The applicant alleged that later the same day, after returning to the same place, she had noticed the same police officers coming towards her and had attempted to flee. The police officers had caught up with her, struck her on the left thigh and on her wrists with a truncheon and again demanded to see her identity papers. She alleged that during the altercation, which had been witnessed by a number of people including two taxi drivers and the security guards of a nearby discotheque, one of the police officers had insulted her, saying things like “get out of here you black whore”. She was released after presenting her papers to the police officers. 9. Again according to the applicant, on 21 July 2005 the same police officers stopped her again and one of them hit her on the left hand with his truncheon. 10. That day the applicant lodged a formal verbal complaint with Palma de Mallorca investigating judge no. 8 and went to hospital to have her injuries treated. The doctors observed inflammation and mild bruising of the left hand. 11. The file was allocated to Palma de Mallorca investigating judge no. 9, who decided to open a judicial investigation and requested an incident report from the police headquarters. In his report of 11 October 2005 the chief of police of the Balearic Islands explained that police patrols were common in the district concerned on account of the numerous complaints of theft or physical attacks regularly received from the local residents and the resulting damage done to the district’s image. He added that foreign female citizens present in the area often attempted to escape from the police because the latter’s presence hindered them in their work. In the present case the applicant had attempted to avoid inspection by the police but had been stopped by the officers, who had asked her to show her papers without at any time making any humiliating remarks or using physical force. With regard to the identity of the officers, the head of police indicated that the ones who had stopped and questioned the applicant the first time were from the patrol formed by the police officers Rayo 98 and Rayo 93 (code names given to the officers). Contrary to the applicant’s assertions, those who had stopped her on 21 July 2005 belonged to a different patrol, called Luna 10. 12. In a decision of 17 October 2005 Palma de Mallorca investigating judge no. 9 issued a provisional discharge order and decided to discontinue the proceedings on the ground that there was insufficient evidence that an offence had been committed. 13. That decision was served on the applicant or her representative on 23 April 2007, at the latter’s request. 14. The applicant applied to Palma de Mallorca investigating judge no. 9 to have the decision reversed, and subsequently appealed. She complained of the discriminatory attitude of the police officers and requested that various evidence-gathering measures be taken, such as identification of the officers in question and taking witness statements from the persons who had been present during the incidents. In a decision of 10 June 2007, investigating judge no. 9 refused to reverse his decision on the grounds that the applicant’s allegations had not been corroborated by objective evidence in the file. The judge observed that “the medical report [provided by the applicant] contains no date and, in any event ... mentions only inflammation and bruising of the hand, with no mention of any injury to the thigh. [The facts submitted] merely show that the applicant repeatedly failed to obey police orders given in the course of their duties, designed to prevent the shameful spectacle of prostitution on the public highway.” 15. An appeal by the applicant was examined by the Balearic Islands Audiencia Provincial, which gave a decision on 16 October 2007 allowing the appeal in part, setting aside the discharge order and ordering proceedings for a minor criminal offence to be instituted before the investigating judge against the two police officers, who had been identified on the basis of the information contained in the report drawn up by the police headquarters. 16. In the context of those proceedings the applicant asked to be able to identify the officers through a two-way mirror. Her request was rejected on the grounds that this was an unreliable method of identification given the length of time that had already elapsed since the incidents and the fact that the officers in question had been wearing helmets throughout, as the applicant had acknowledged. No evidence against the accused was taken during the trial. 17. On 11 March 2008 investigating judge no. 9 gave judgment at the end of a public hearing during which evidence was heard from the police officers charged, who were not formally identified by the applicant. In his judgment the judge observed that during the judicial investigation an incident report had been requested from the police headquarters according to which the officers involved had stated that no incident had occurred when they had stopped and questioned the applicant. The judge drew attention to the fact that the medical report provided by the applicant did not specify the date on which it had been drawn up. Furthermore, the findings in the report were not conclusive as to the cause of the injuries. Lastly, the judge reproduced verbatim the grounds of the decision of 10 June 2007 relating to the applicant’s conduct and the purpose of the intervention by the police and concluded that her allegations were not objectively corroborated. In the light of those arguments, the judge acquitted the police officers. 18. The applicant appealed. She challenged the refusal to allow her to identify the perpetrators through a two-way mirror and criticised the fact that the only investigative measure taken by the investigating judge in response to her complaint had been to request a report from the police headquarters. 19. In a judgment of 6 April 2009, the Palma de Mallorca Audiencia Provincial dismissed her appeal and upheld the investigating judge’s judgment. It pointed out that the right to use a range of evidence-gathering measures did not include the right to have each and every proposed measure accepted by a court. In the instant case identification through a two-way mirror would not have added anything to the evidence on the file. 20. Relying on Articles 14 (prohibition of discrimination), 15 (protection of physical integrity) and 24 (right to a fair trial) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 22 December 2009, the Constitutional Court dismissed the appeal on grounds of a lack of constitutional basis for the complaints raised. B. 2 nd episode: events of 23 July 2005 21. The applicant was stopped and questioned again on 23 July 2005. On the same day she went to the casualty department of a public medical centre, where the doctor observed abdominal pain and bruising on the hand and knee. 22. On 25 July 2005 she lodged a criminal complaint with Palma de Mallorca investigating judge no. 2, alleging that one of the police officers had struck her on the hand and knee with a truncheon and that the officers had singled her out on account of her racial origin and had not stopped and questioned other women carrying on the same activity. She also stated that she had subsequently been taken to the police station, where she had refused to sign a statement drawn up by the police saying that she admitted having resisted police orders. Referring to the incidents that had occurred during the first episode, the applicant requested the removal of the police officer who had assaulted her and that her complaint be joined to the one previously lodged with investigating judge no. 8. Neither of her requests was granted. 23. The case was allocated to Palma de Mallorca investigating judge no. 11, who decided to open a judicial investigation. The applicant requested certain evidence-gathering measures, including obtaining from the police the identification numbers of the officers who had been on duty on 15 and 23 July. In the alternative, should that information not permit identification of the police officers responsible, the applicant requested that all the police officers who had patrolled the area during those days be summoned so that they could be identified through a two-way mirror. Her request was rejected. 24. In the course of the judicial investigation, investigating judge no. 11 requested an incident report from the police headquarters. 25. A report by the Balearic Islands chief of police dated 28 December 2005 explained, firstly, that the applicant had admitted working as a prostitute in the area in question, which was an activity that had given rise to numerous complaints from local residents. In that connection he considered that the sole purpose of the applicant’s complaints (including the one of 15 July) had been to allow her to pursue her occupation unhindered by the police. With regard to the identity of the officers in question, the chief of police observed that the computer records had not registered any intervention on 23 July; only those of 15 and 21 July had been recorded in respect of that area. 26. On 22 February 2006 investigating judge no.11 issued a provisional discharge order and decided to discontinue the proceedings on the grounds that there was insufficient evidence that an offence had been committed. 27. The applicant sought to have that decision reversed by the judge and subsequently appealed. The judge dismissed her request by a decision of 31 July 2006. Subsequently, the Palma de Mallorca Audiencia Provincial dismissed her appeal on 7 March 2007. The Audiencia referred both to the report of the police headquarters in which there was no record of an intervention by the police on the alleged date and the statements in the report regarding the applicant’s true motives in lodging her complaints. It also considered that the medical report supplied by the applicant did not enable the cause of the injuries to be unequivocally established. 28. Relying on Articles 10 (right to dignity), 14 (prohibition of discrimination), 15 (right to physical and mental integrity) and 24 (right to a fair trial) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. In a decision of 14 April 2008, the Constitutional Court dismissed the appeal on grounds of a lack of constitutional basis for the complaints raised. ... | This case concerned a woman of Nigerian origin who was stopped by the police while working as a prostitute on the outskirts of Palma de Mallorca. The applicant complained in particular that the national police officers had verbally and physically abused her when stopping her for questioning. She further alleged that she had been discriminated against because of her profession as a prostitute, her skin colour and her gender. |
271 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969. At present he is detained in El Harrach prison in Algeria. A. Background information 6. The applicant left Algeria for Italy in 1991. He subsequently spent time in Spain, Switzerland, Canada, Pakistan and Afghanistan. In 1999 the applicant arrived in the United Kingdom where he applied for asylum. His request was dismissed. 7. On 13 January 2001 the applicant was placed in custody in the United Kingdom as a result of several accusations made against him in different countries. The only one that was pursued was that of “ association de malfaiteurs ”. It was imputed to the applicant that, when living in Montreal, he had been involved in the supply of false documents which had been used by individuals in France when they had fled arrest for offences committed there. 8. The United Kingdom extradited the applicant to France. On 7 April 2006 he was found guilty by a French court of involvement, as a member of an organised group, in the preparation, between 1996 and 1998, of a terrorist act in France and several other countries and of forging identity documents. He received a five-year sentence and was excluded from the territory of France. The applicant did not appeal and was released immediately upon conviction on the ground that he had served the sentence in the context of his prior detention while awaiting extradition. On 11 April 2006 the applicant arrived in Slovakia. 9. In the meantime, on 1 June 2005, an Algerian court had convicted the applicant, in absentia, of membership of a terrorist organisation acting both in Algeria and abroad, and of forgery. He was sentenced to life imprisonment. B. The applicant’s family ties in Slovakia 10. In January 2001 the applicant married a Slovakian national in London. A child was born to the couple on 2 August 2001. 11. With effect from 25 October 2007 the applicant’s wife was deprived of legal capacity to act. The child was entrusted to the care and custody of the applicant’s wife’s mother. On 29 May 2008 the latter, acting as guardian of her daughter, petitioned for divorce. The divorce proceedings are pending before the Bratislava IV District Court; it is not clear from the parties’ submissions whether a final decision has been given. C. Proceedings in Slovakia 1. Asylum requests of the applicant 12. On 18 July 2006 the Migration Office dismissed the applicant’s first asylum request. The Bratislava Regional Court dismissed the applicant’s action challenging that decision. 13. On 24 September 2007 the Migration Office dismissed his second request for asylum. It held that there were no obstacles to the administrative expulsion of the applicant to Algeria. On 30 October 2007 the applicant’s lawyer waived the right to challenge that administrative decision. It thus became final on that date. 14. On 6 October 2008 the Migration Office dismissed the applicant’s third request for asylum. It further decided not to afford the applicant the status of “subsidiary protection” ( doplnková ochrana ) under the Asylum Act 2002. 15. On 4 February 2009 the Bratislava Regional Court quashed that decision. It ordered the administrative authority to establish all the relevant facts and to give comprehensive reasons for its conclusion. 16. On 5 June 2009 the Migration Office again decided not to grant asylum to the applicant and not to provide him with subsidiary protection under the Asylum Act 2002. 17. It was found that the applicant’s fears were subjective in nature and unsubstantiated by objective facts, that he had failed to show that he was subjected to persecution and that such persecution was politically motivated. If returned to Algeria, the applicant could seek a retrial on the ground that he had already been convicted in France and had served the sentence imposed in that context. Moreover, the applicant represented a security risk to the Slovak Republic and to society. His arguments under Article 3 of the Convention could not be taken into account because the matter under review concerned his asylum status and not his extradition. 18. On 28 October 2009 the Bratislava Regional Court upheld the Migration Office’s decision on the applicant’s third asylum request. 19. The applicant appealed. He argued that he risked being subjected to torture and inhuman and degrading treatment and being sentenced to death if returned to Algeria. The applicant also argued that he had family ties in Slovakia and that he wished to take care of his wife, who suffered from an illness, and their son. 20. On 30 March 2010 the Supreme Court upheld the Regional Court’s judgment of 28 October 2009. The Supreme Court held, in particular, that the applicant’s wish to maintain ties with his wife and child, who were Slovakian nationals, was not a relevant ground for granting him asylum. Furthermore, the applicant had been convicted in Algeria of criminal offences linked to the activities of the Salafist Group for Preaching and Combat, the aim of which was to establish, by violent means, a fundamentalist Islamic State in Algeria. Armed attacks carried out by the group could not be considered as a means of political struggle justifying the applicant’s protection from persecution for political opinions within the meaning of the Asylum Act 2002. 21. As to the alleged risk of the applicant’s ill-treatment in Algeria, the Supreme Court held that the Court’s case-law under Article 3 of the Convention concerned cases of expulsion or extradition but not those relating to requests for asylum. 22. The applicant had not shown that justified reasons existed to believe that he could be persecuted for any of the reasons laid down in section 8 of the Asylum Act 2002, namely on the ground of his race, ethnic origin, belonging to a social group, for religious reasons or because of his political opinion. 23. In the Supreme Court’s view, the purpose of granting subsidiary protection was to avoid unsuccessful asylum seekers being removed from Slovakia in certain justified cases. However, such subsidiary protection was excluded, inter alia, where there were serious reasons to believe that an asylum seeker represented a risk to society or the safety of the State in which he or she applied for asylum. Reference was made to Articles 12 and 17 of the Council of the European Union Directive 2004/83/EC and sub ‑ sections 2(d) and (e) of section 13c of the Asylum Act 2002. 24. The applicant’s conviction in France, on 7 April 2006, of involvement in a terrorist organisation and his admission that he had been trained in Afghanistan in handling weapons and explosives, as well as other information gathered by the Office for the Fight Against Organised Crime, justified the conclusion that the applicant could provide assistance to persons suspected of involvement in terrorist groups operating worldwide. The decision not to grant subsidiary protection to the applicant was therefore lawful. That conclusion could not be affected by the express admission by the Migration Office, in the context of the asylum proceedings, that the applicant could be exposed to a real risk of inhuman treatment if returned to Algeria. 25. Finally, the Supreme Court noted that the applicant had unlawfully left for Austria while proceedings concerning his asylum request in Slovakia had been pending and that he had lodged an asylum request in Austria. It concluded that the applicant was not genuinely interested in protection by the Slovakian authorities. 26. The Supreme Court’s judgment was served on the applicant and became final on 16 April 2010. 2. Other proceedings and facts relating to the applicant’s stay in Slovakia and his expulsion 27. On 20 July 2006, the Border and Foreigners Police Department in Bratislava ordered the applicant’s expulsion and banned him from entering Slovakia for ten years. The decision became final and binding on 12 October 2006. The applicant was expelled to Austria on the basis of the decision. 28. In May 2007 the Austrian authorities returned the applicant to Slovakia where he was placed under provisional arrest. On 20 June 2007 he was remanded in custody pending his extradition on a warrant in connection with the above-mentioned Algerian court’s judgment of 1 June 2005. 29. On 30 November 2007 the Bratislava Regional Court gave its consent to the applicant’s extradition to Algeria. On 22 January 2008 the Supreme Court approved that decision. On 13 March 2008 the Constitutional Court suspended the effect of the Supreme Court’s decision pending its decision on the applicant’s complaint that he would run the risk of ill-treatment if he were extradited to his country of origin. 30. On 26 June 2008 the Constitutional Court quashed the Supreme Court’s decision of 22 January 2008. It instructed the latter to re-examine the case with particular emphasis on the alleged threat of the applicant being subjected to treatment contrary to Article 3 of the Convention in the event of his extradition. 31. On 7 August 2008 the Supreme Court found that the applicant’s extradition to Algeria was not permissible. On the same date the applicant was released. 32. In its judgment the Supreme Court relied on a number of international documents, such as reports of the UN Human Rights Committee of 2007 and the UN Committee against Torture of 2008, a document prepared by the UNHCR, documents issued by Amnesty International, the United States Department of State, the British Foreign and Commonwealth Office, Human Rights Watch and the Court’s judgment in Saadi v. Italy [GC], no. 37201/06, ECHR 2008). 33. In particular, the Supreme Court referred to the broad powers of investigation of the Department of Intelligence and Security (DRS), documented reports on detention of suspects incommunicado in secret DRS centres, and numerous reports of torture and inhuman or degrading treatment of people at the hands of the DRS. The information available indicated that the DRS had systematically used torture and other forms of ill-treatment in respect of individuals deemed to have information about terrorist activities. 34. Furthermore, the law and practice in Algeria did not exclude the use in judicial proceedings of evidence which had been extracted under torture. The Algerian authorities had refused to co-operate with special rapporteurs or working groups established within the UN system and with non-governmental organisations with a view to clarifying the position. Similarly, the Algerian authorities had refused to allow monitoring the situation of people who had been returned to that country. 35. The Supreme Court noted that the relevant regulation did not list Algeria as a safe country of origin. It concluded that there were justified reasons to fear that the applicant would be exposed to treatment contrary to Article 3 of the Convention in the event of his extradition to Algeria. 36. Subsequently the applicant was apprehended and placed in a detention centre for foreigners in Medveďov on the basis of the Border and Foreigners Police decision of 7 August 2008. Reference was made to the above-mentioned decision of 20 July 2006 to expel the applicant and to exclude him from the territory of Slovakia for ten years. The decision stated that proceedings concerning the applicant’s expulsion were still under way. 37. On 17 October 2008 the applicant requested leave to stay in Slovakia ( tolerovaný pobyt ). The police dismissed the request. 38. On 3 February 2009 the applicant was released from the detention centre for foreigners in Medveďov. He was placed in an accommodation facility for asylum seekers in Opatovská Nová Ves and, later, in a similar facility in Rohanovce. During his stay in those facilities the applicant’s freedom of movement was restricted. He unsuccessfully sought redress before the Supreme Court and the Constitutional Court, which decided on his claim on 3 March 2009 and 16 December 2009 respectively. 39. On 19 December 2009 the applicant left the facility in Rohanovce and arrived in a centre for refugees in Austria. The Austrian authorities returned him to Slovakia on 11 March 2010. 40. On 22 April 2010 the Minister of the Interior informed the media that the applicant had been expelled from Slovakia and escorted to Algeria in accordance with the decision of the Border and Foreigners Police Department in Bratislava of 20 July 2006. The applicant’s representative learned about his expulsion from press articles. D. Information obtained by the respondent Government from the Algerian authorities 41. A letter from the Algerian Ministry of Justice of 2 July 2007 indicated that the Algiers Criminal Court had convicted the applicant in absentia, on 1 June 2005, of belonging to a terrorist organisation acting both in Algeria and abroad and of forgery under Articles 87bis, 87bis §§ 3 and 6 and Article 222 of the Criminal Code. His extradition was requested with a view to re-trying him for the same offences. His previous conviction in absentia would lose effect upon his return to Algeria pursuant to Article 326 of the Criminal Code. In the event of his extradition the applicant would have an adversarial trial before the criminal court, the judgment of which could be appealed against to the Supreme Court. Assistance by legal counsel was mandatory in such proceedings. Under the Criminal Code the offences imputed to the applicant were not punishable by capital penalty. 42. In a letter of 25 September 2007 a representative of the Algerian Ministry of Justice indicated that his country had not yet ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Nevertheless, the law in force established a system of control permitting detained persons to seek redress in the event of a breach of their rights. Furthermore, the collaborators of the International Committee of the Red Cross had the possibility of visiting detained persons in private. Torture and other forms of ill-treatment were subject to heavy penalties under the Algerian Criminal Code. 43. In a letter of 22 September 2010 the Algerian Ministry of Justice indicated that the applicant’s conviction by the judgment of 1 June 2005 had lost effect following his return to Algeria. He was being detained in El Harrach prison under an order issued by the indictment chamber of the Algiers Criminal Court. The applicant had the right to meet an advocate in private, to receive visits by members of his family, to file complaints and to medical care. The applicant’s trial was scheduled for October 2010. He had the right to assistance by counsel and could avail himself of a variety of procedural rights incorporated in the Code of Criminal Procedure. Finally, the letter indicated that several persons suspected of terrorism had been extradited or expelled to Algeria from the United Kingdom, Spain or the United States and that all those persons had been treated in accordance with the law. 44. On 13 December 2010 the Slovakian Ministry of the Interior asked the Algerian Embassy in Vienna for a visit of the former’s State Secretary to be arranged during which he could discuss the applicant’s situation with the Algerian penitentiary administration. The Government submitted no further information as regards that initiative. 45. In a verbal note of 5 April 2011 the Algerian Embassy in Vienna informed the Slovakian Ministry of Foreign Affairs that the Algiers Criminal Court had convicted the applicant, on 12 January 2011, of having belonged to a terrorist group acting abroad. The trial had been public and covered by the media and the applicant had been defended by counsel of his choice. He had been sentenced to a three-year prison term with twelve months suspended and to a fine of 500,000 Algerian dinars. The applicant had also been prohibited from exercising public functions after his release and from exercising his property rights. 46. The verbal note further stated that the charges of having belonged to a terrorist group acting within Algeria and of complicity in forgery and use of forgeries had not been upheld by the tribunal. Both the prosecution and the applicant’s counsel had appealed against the judgment on 17 January 2011. 47. No further information has been provided. II. PROCEEDINGS BEFORE THE COURT A. Interim measures under Rule 39 of the Rules of Court 48. On 18 July 2008 the Acting President of the Court’s Chamber decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the applicant should not be extradited to Algeria. 49. On 13 August 2008 the Acting President of the Chamber again decided to indicate to the respondent Government under Rule 39 that the applicant should not be expelled to Algeria. The measure was to remain in force “for a period of two weeks following the outcome of the asylum proceedings, the ensuing expulsion proceedings as the case [might] be and, as appropriate, of any complaint which [the applicant] lodge[d] with the Constitutional Court in respect of those proceedings.” 50. On 15 April 2010 the applicant’s legal representative requested the Court to clarify the conditions of the interim measure of 13 August 2008. The advocate explained that the applicant’s asylum case had been dismissed by the Supreme Court two weeks before and, in the absence of the written version of the judgment with reasons, the applicant had not had an opportunity to challenge it before the Constitutional Court. 51. On 16 April 2010 the Section Registrar informed the applicant that, in applying Rule 39, the Acting President had wished to ensure that the applicant would not be expelled before he had exhausted domestic remedies. The relevant part of the letter reads: “The Rule 39 measure remains in force until the Constitutional Court has pronounced on the applicant’s constitutional complaint. It is clear that the applicant needs the reasons given by the Supreme Court for refusing his asylum case to enable him to lodge a complaint under Article 127 of the Constitution with the Constitutional Court. The two-week period referred to in the Registry’s letter of 13 August 2008 runs from the date on which the final decision is given with reasons and is intended to allow the Court, in the light of the reasons given by the Constitutional Court, to decide whether to lift or continue to apply Rule 39.” 52. A copy of the letter was sent to the Government with specific mention that the Rule 39 measure was still in force. 53. On 22 April 2010 the applicant’s representative informed the Court that it was impossible to contact the applicant and that, according to media reports, he had been expelled to Algeria earlier that week. 54. On 22 April 2010, on instruction by the President of the Section, the Section Registrar requested the Government to confirm or deny the reports of the applicant’s expulsion. 55. On 26 April 2010 the Government informed the Court that the applicant had been expelled on 19 April 2010. The expulsion had been carried out on the basis of the final and binding decision of the Border and Foreigners Police Department of 20 July 2006. Since the Supreme Court’s judgment in the asylum proceedings had become final on 16 April 2010, on the national level the applicant was considered to be a foreigner without permission to stay in Slovakia. 56. On 28 April 2010 the Registrar of the Court sent the following letter to the Government: “The President of the Court ... has instructed me to express on his behalf his profound regret at the decision taken by your authorities to extradite Mr Mustapha Labsi to Algeria in disrespect of the Court’s interim measure adopted under Rule 39 of the Rules of Court. The President has noted in this connection that on 16 April 2010 your authorities were reminded in clear terms by the Registrar of Section IV of the Court that the Rule 39 measure, first applied on 13 August 2008, continued to remain in force. Nevertheless, the Government extradited the applicant to Algeria on 19 April. The President is deeply disturbed at this development and is particularly concerned about its implications for the authority of the Court and the unfortunate message which it sends both to other Contracting States faced with a Rule 39 measure and to applicants and potential applicants liable to extradition or expulsion to countries where they may be exposed to the risk of violation of their rights under Articles 2 and 3 of the Convention. As an indication of the seriousness with which he views this turn of events, the President has asked that the Chairman of the Committee of Ministers, the President of the Parliamentary Assembly and the Secretary General of the Council of Europe be informed immediately. The President also notes that notwithstanding the Court’s request of 22 April 2010 for clarification of the circumstances surrounding Mr Labsi’s extradition, your letter of 26 April failed to explain why the Rule 39 measure was not complied with. The President expects your authorities to provide an explanation. He would in particular request your authorities to confirm or deny reports that the spokesperson of the Ministry of the Interior declared that his authorities were prepared to run the risk of being found to be in breach of the Convention and that other States which had failed to comply with a Rule 39 measure only had to pay ‘a few thousand euros’”. 57. In a reply dated 10 May 2010 the Vice-Prime Minister holding the post of the Minister of the Interior stated that all the relevant facts and legal issues had been taken into account prior to the applicant’s expulsion to Algeria, which had been carried out in accordance with the police decision of 20 July 2006. 58. The letter indicated, inter alia, that the offences of which the applicant had been convicted in absentia did not carry a capital penalty. The Algerian authorities had confirmed that the applicant would receive a new trial in which his defence rights would be respected and that all forms of violence against individuals were punishable under Algerian law. 59. The applicant had been convicted and sentenced to five years’ imprisonment in France; he had also been banned from the territory of that State. Information about the applicant, including his involvement in the activities of terrorist groups and the fact that an international arrest warrant had been issued by Algerian authorities, was entered in the Schengen information system. The Slovakian police’s decision to expel the applicant was also based on the obligation resulting from Council Directive 2001/40/EC of 28 May 2001, which requires the police in Slovakia to ensure the enforcement of an expulsion decision issued in one of the States within the European Economic Area where a foreigner was sentenced to a prison term of at least one year. 60. On the basis of all the information available the Slovakian police had concluded that the applicant represented a real risk to the security of the Slovak Republic and to society. The Supreme Court, in its decision concerning the applicant’s third request for asylum, had reached the same conclusion. 61. The Ministry of the Interior believed that the need to protect society from a person who had been convicted of involvement in a terrorist group prevailed in the present case and that the applicant’s expulsion had not been contrary to Slovakia’s undertakings under the Convention. The statements which the spokesperson of the Ministry of the Interior had made about the applicant’s case and the Court’s practice were to be interpreted in that context. B. The representation of the applicant before the Court 62. At the time of lodging the application the applicant was represented by Ms M. Kolíková, a lawyer practising in Bratislava. In a letter of 9 July 2010 Ms Kolíková informed the Court that her right to practice as an advocate had been suspended as of that date following her appointment as Secretary of State at the Ministry of Justice. The letter further stated that Mr M. Hrbáň, a lawyer practising in Bratislava, was prepared to take over the applicant’s representation before the Court. It was impossible to contact the applicant for practical reasons, but the necessary steps would be taken with a view to ensuring his proper representation. 63. On 30 July 2010 Mr M. Hrbáň confirmed that, upon agreement with Ms Kolíková, he undertook to protect the applicant’s rights and to submit a power of attorney from the applicant as soon as he could obtain one. 64. On 31 March 2011 and 5 September 2011 Mr Hrbáň informed the Court that he had sent three letters to the applicant in El Harrach prison in Algeria to which he had received no reply. The Ministry of the Interior of the Slovak Republic had refused to inform Mr Hrbáň of the applicant’s address on the ground that he had not produced a power of attorney to represent the applicant. Efforts were being made, in co-operation with Amnesty International, to obtain more information about the applicant’s whereabouts. 65. Mr Hrbáň stated, with reference to section 17 of the Bar Act 2003, that Ms Kolíková had appointed him as her substitute on the basis of their mutual agreement. The client’s consent and submission of a new power of attorney were not required in such circumstances. 66. In a letter of 11 April 2011 Mr Hrbáň submitted information about the applicant’s fresh trial and conviction in Algeria which he had obtained from representatives of Amnesty International, one of whom had talked to the applicant’s brother. That information corresponds to that which the Algerian Ministry of Justice had furnished to the respondent Government (see paragraph 45 above). 67. On 5 September 2011 Mr Hrbáň informed the Court that he had been unable to establish contact with the applicant. He maintained that he acted in good faith with a view to defending the applicant’s interests and that he had not modified the subject-matter of the application as submitted by the representative whom the applicant had appointed. He would continue in his efforts to contact the applicant in Algeria and asked the Court to consider his submissions as an amicus curiae intervention. | This case concerned the expulsion of an Algerian man, convicted in France of preparing a terrorist act, from Slovakia following his unsuccessful asylum request. The applicant was expelled to Algeria in April 2010, despite the fact that the Court had issued an interim measure in 2008, under Rule 39 of its Rules of Court, to the effect that he should not be extradited to Algeria before the final outcome of his asylum case before the Slovakian Constitutional Court. |
742 | Noise pollution | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1954 and lives in Zalaegerszeg. 6. The applicant ’ s house is situated across the street from Zalaegerszeg Railway Station, in front of the starting position of trains. When about 1988 the Hungarian Railway Company (“MÁV”) replaced its steam engines with diesel ones, the noise level increased significantly. 7. On 22 October 1991 the applicant and his neighbours filed an action in trespass against MÁV, seeking that it be obliged to keep its noise emission under control by constructing a noise barrier wall, modernising the railway station, preheating the engines in another place and avoiding the use of certain engines. This action was later extended to include a compensation claim. 8. Between 7 February 1992 and January 1993 the proceedings were stayed upon the parties ’ request. From 22 July 1994 to 27 November 1998 the proceedings were suspended upon the applicant ’ s request, pending his similar complaint before the National Public Health and Medical Officer Service. 9. In 1995 the applicant also complained to the Regional Environment Protection Authority about the noise disturbance. In remitted proceedings, on 27 August 1997 the Environment Protection Authority established the noise limits applicable to preheating trains. On 18 May 1998 it imposed a fine on MÁV for non-compliance with those limits. The noise did not decrease, therefore the applicant and his neighbours turned to the Public Prosecutor. On 4 May 2008 the Public Prosecutor initiated civil proceedings against MÁV. These proceedings were consolidated with the ones initiated by the applicant and his neighbours. 10. Relying on acoustic and engineering expert opinions, on 24 September 2004 the Zalaegerszeg District Court established the existence of sound pollution and ordered MÁV to finance the installation of soundproof doors and windows on the plaintiffs ’ houses, but dismissed the remaining claims. 11. On appeal, the case was remitted to the first instance. 12. In the remitted proceedings, on 9 November 2005 the District Court delivered a partial judgment, maintaining that the noise level exceeded the limit value, prohibiting MÁV from making the excessive noise emission, and obliging it to construct a noise barrier wall. 13. On appeal, on 30 March 2006 the Zala County Regional Court dispensed with the obligation to build the protection wall, considering it unnecessary in addition to the prohibition on noise pollution. The Regional Court relied on section 101 (3) of the Act no. LIII of 1996 on the Protection of Nature (“Nature Protection Act”). 14. The partial judgment having become final, the first-instance proceedings continued with regard to the compensation claims. On 7 March 2008 the District Court ordered MÁV to pay the applicant 4,150,000 Hungarian forints [1] (HUF) in compensation for the loss of value of his house and HUF 445,000 [2] for the costs of replacing the doors and windows. 15. On appeal, on 5 June 2008 the Regional Court partly reversed the judgment, dispensing with the award for the loss of value. It relied on a real estate expert opinion, according to which if MÁV complied with the partial judgment, the remaining noise would not reduce the market value of the house. 16. MÁV complied with its payment obligation without delay. In addition to that, between 2010 and 2012 several noise mitigating measures, investments and developments were implemented at Zalaegerszeg Railway Station, including reduction in the number of trains passing through the station, minimisation of the stay of freight trains on passenger-train tracks and the stationing of trains in the applicant ’ s street, renovation of engines, electrification of shunting, reorganisation of pre-heating, limitation of the number of diesel engines and their operation only on branch tracks, and avoidance of unnecessary working of machines in the station area. 17. The applicant claims that due to the above measures the noise has decreased to a degree but still exceeds the statutory limit value by night and at dawn. However, no evidence has been produced to that effect. | The applicant, whose house was situated across the street from a railway station, complained in particular of the extreme noise disturbance caused by the trains ever since steam engines had been replaced by diesel engines in 1988, and of the authorities’ failure to enforce, in an effective and timely manner, the railway company’s obligation to keep the noise level under control. In particular, even though the applicant had brought proceedings in 1991 to oblige the company to construct a noise barrier, the first noise-reduction measures were only actually implemented in 2010. |
1,062 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE A. The taxable transaction 6. On 16 August 2000 the applicant company purchased goods from another company (“the supplier”). 7. Both companies were registered under the Value Added Tax Act 1999 (“the VAT Act”) and the transaction constituted a taxable supply under the said Act. 8. The total cost of the received supply was 21,660 Bulgarian levs (BGN) (11,107 euros (EUR)), of which BGN 18,050 (EUR 9,256) was the value of the goods and BGN 3,610 (EUR 1,851) was value-added tax (“VAT”). 9. The supplier issued invoice no. 12/16.08.2000 to the applicant company, which the latter paid in full, including the VAT of BGN 3,610 (EUR 1,851). 10. The applicant company recorded the purchase in its accounting records for the month of August 2000 and filed its VAT return for that period by 15 September 2000. 11. The supplier, on the other hand, did not record the sale in its accounting records for the month of August 2000, but for October 2000, and reported it in its VAT return for the latter period, which it filed on 14 November 2000. B. The VAT audit 12. On an unspecified date the tax authorities conducted a VAT audit of the applicant company covering the period from 10 February to 31 December 2000. In the course of the inspection a cross-check of the supplier was conducted in order to ascertain whether it had properly reported and recorded the supply in its accounting records. As a result, the above reporting discrepancy was discovered (see paragraphs 10 and 11 above). 13. On 31 January 2001 the “ Yug ” Tax Office of the Plovdiv Territorial Tax Directorate issued the applicant company with a tax assessment. It refused the applicant company the right to deduct the VAT it had paid to its supplier (“the input VAT”), amounting to BGN 3,610 (EUR 1,851), because the supplier had entered the supply in its accounting records for the month of October 2000 and had reported it for that period rather than for August 2000. The Territorial Tax Directorate therefore considered that no VAT had been “charged” on the supply in the August 2000 tax period, that the applicant company could not therefore deduct the amount it had paid to its supplier as VAT and, furthermore, that it was liable to pay the VAT on the received supply a second time. Accordingly, it ordered the applicant company to pay the VAT in the amount of BGN 3,610 (EUR 1,851) into the State budget, together with interest of BGN 200.24 (EUR 102) for the period from 15 September 2000 to 31 January 2001. 14. The applicant company appealed against the tax assessment on 20 February 2001. 15. In a decision of 26 February 2001 the Plovdiv Regional Tax Directorate dismissed the applicant company ’ s appeal and upheld the tax assessment in its entirety. It recognised that the applicant company had fully complied with its VAT reporting obligations in respect of the received supply, but found that the supplier had failed to enter its invoice in its own accounting records on the date it had been issued, 16 August 2000, and had not reported its VAT-taxable supply for the month of August 2000 as it should have done. It therefore concluded that no VAT had been “charged” on the supply in question and that the applicant company was accordingly not entitled to deduct the input VAT, in spite of the fact that the supplier had subsequently reported the supply for the month of October 2000. 16. The applicant company appealed against the decision of the Regional Tax Directorate on 19 March 2001, arguing that it could not be denied the right to deduct the input VAT solely because of its supplier ’ s belated compliance with its VAT reporting obligations. The applicant company also claimed that the supplier ’ s right to deduct the VAT it had paid to its own supplier had been recognised by its tax office, while the applicant company was being denied that right. In its submissions the applicant company relied, inter alia, on Article 1 of Protocol No. 1 to the Convention. 17. In a judgment of 21 September 2001 the Plovdiv Regional Court dismissed the applicant company ’ s appeal and upheld the decisions of the tax directorates. It stated as follows: “The Court finds that the ... objection of the [applicant company] is ... unsubstantiated. In particular, [the applicant company objected that] it had been the compliant party, while the supplier had not complied with its obligations. The right to ... [deduct the input VAT] arises for the recipient of a [taxable] supply only if the supplier has fulfilled the conditions under section 64 in conjunction with section 55 of the VAT Act. The Act does not differentiate between the parties to a supply transaction as regards compliance; the court cannot therefore introduce such an element into this judgment. ” 18. On 26 October 2001 the applicant company appealed to the Supreme Administrative Court. 19. In a final judgment of 24 October 2002 the Supreme Administrative Court concurred with the findings and conclusions of the tax authorities and stated the following: “... In this case the non-compliance of the supplier impacts unfavourably on the recipient ..., because the right to recover the [input VAT] does not arise for [the latter] and it does not matter that the recipient of the [taxable] supply [acted] in good faith and [was] compliant..., as this is irrelevant for the [purposes of] taxation. ... There [is] also [no] ... violation of ... Article 1 of Protocol No. 1, because the refusal to recognise the claimant ’ s right to [deduct the input VAT] under section 64 (2) of the VAT Act did not violate its property rights, due [to the fact that] the recognition of its substantive right [to deduct] under section 64 of the VAT Act is conditional on the actions of its supplier and [the latter ’ s] discharge [of its obligations] vis-à-vis [the State] budget. ...” | The applicant, a joint-stock company, complained in particular that the Bulgarian authorities had deprived it of the right to deduct the input VAT it had paid to its supplier, who had been late in complying with its own VAT reporting obligations. |
199 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 11. The applicant was born on 2 February 1984 and lives in İzmir. A. The applicant ’ s arrest and detention 12. On 29 May 2001 at about 10.15 p.m., the applicant was taken into custody by police officers from the anti- terrorism branch of the İzmir Security Directorate on suspicion of having participated in an unlawful demonstration in support of an illegal organisation, namely the PKK (the Workers ’ Party of Kurdistan). The applicant was also accused of hanging an illegal banner from a bridge in Bornova on 26 April 2001. 13. At about 12.30 a.m. on 30 May 2001 the applicant was taken to the Atatürk Teaching and Research Hospital, where he was examined by a doctor. The medical report stated that there was no trace of ill-treatment on his body. 14. Subsequently, at about 1 a.m., the applicant was interrogated at the anti- terrorism branch in the absence of a lawyer. According to a form explaining arrested persons ’ rights which the applicant had signed, he had been reminded of the charges against him and of his right to remain silent. In his statement, the applicant admitted his involvement in the youth branch of HADEP ( Halkın Demokrasi Partisi – the People ’ s Democracy Party). He gave the names of several persons who worked for the youth branch of the Bornova District Office. He explained that he was the assistant youth press and publications officer and was also responsible for the Osmangazi neighbourhood. He further stated that it had been part of his job to assign duties to other members of the youth branch. He admitted that he had participated in the demonstration on 29 May 2001 organised by HADEP in support of the imprisoned leader of the PKK. He said that there had been about sixty demonstrators present and that the group had shouted slogans in support of Öcalan and the PKK. He had been arrested on the spot. He also admitted that he had written “Long live leader Apo ” on a banner which had been hung from a bridge on 26 April 2001. The police took samples of the applicant ’ s handwriting and sent it to the police laboratory for examination. 15. On 1 June 2001 the İzmir Criminal Police Laboratory issued a report after comparing the applicant ’ s handwriting to that on the banner. It concluded that although certain characteristics of the applicant ’ s handwriting bore similarities to the handwriting on the banner, it could not be established whether or not the writing on the banner was in fact his. 16. At 11.45 p.m. on 1 June 2001 the applicant was again examined by a doctor, who stated that there were no traces of ill-treatment on his body. 17. On the same day, the applicant was brought before the public prosecutor and subsequently the investigating judge. Before the public prosecutor, he explained that he was not a member of any political party, but had taken part in certain activities of HADEP. He denied fabricating an illegal banner or participating in the demonstration on 29 May 2001. He stated that he was in the Doğanlar neighbourhood to visit a friend when he was arrested by the police. The applicant also made a statement to the investigating judge, in which he retracted his statement to the police, alleging that it had been extracted under duress. He claimed that he had been beaten and insulted while in police custody. He again denied engaging in any illegal activity and explained that on 29 May 2001 he had gone to the Doğanlar neighbourhood to visit a friend and had not been part of the group shouting slogans. After the questioning was over, the investigating judge remanded the applicant in custody, having regard to the nature of the offence of which he was accused and the state of the evidence. The applicant was then allowed to have access to a lawyer. B. The trial 18. On 11 July 2001 the public prosecutor at the İzmir State Security Court filed an indictment with that court accusing the applicant and eight other accused of aiding and abetting the PKK, an offence under Article 169 of the Criminal Code and section 5 of the Prevention of Terrorism Act (Law no. 3713). 19. On 16 July 2001 the State Security Court held a preparatory hearing. It decided that the applicant ’ s detention on remand should be continued and that the accused be invited to prepare their defence submissions. 20. On 28 August 2001 the State Security Court held its first hearing, in the presence of the applicant and his lawyer. It heard evidence from the applicant in person, who denied the charges against him. The applicant also rejected the police statement, alleging that it had been extracted from him under duress. He explained that while he was in custody, police officers had ordered him to copy the words from a banner. He also stated that he had witnessed the events that had taken place on 29 May 2001; however, he had not taken part in the demonstration as alleged. Instead, he had been in the neighbourhood to visit a friend named Özcan. He also denied hanging an illegal banner from a bridge on 26 April 2001. 21. At the next hearing, which was held on 25 October 2001, the applicant and his lawyer were both present. The court also heard from other accused persons, all of whom denied having participated in the illegal demonstration on 29 May 2001 and retracted statements they had made previously. The prosecution then called for the applicant to be sentenced pursuant to Article 169 of the Criminal Code and the applicant ’ s lawyer requested time to submit the applicant ’ s defence submissions. 22. On 5 December 2001 the applicant made his defence submissions. He denied the charges against him and requested his release. On the same day, the İzmir State Security Court delivered its judgment. It acquitted five of the accused and convicted the applicant and three other accused as charged. It sentenced the applicant to four years and six months ’ imprisonment, which was reduced to two and a half years as the applicant had been a minor at the time of the offence. 23. In convicting the applicant, the State Security Court had regard to the applicant ’ s statements to the police, the public prosecutor and the investigating judge respectively. It also took into consideration his co-defendants ’ evidence before the public prosecutor that the applicant had urged them to participate in the demonstration of 29 May 2001. The court noted that the co-defendants had also given evidence that the applicant had been in charge of organising the demonstration. It further took note of the expert report comparing the applicant ’ s handwriting to that on the banner and of the fact that, according to the police report on the arrest, the applicant had been among the demonstrators. It concluded: “ ... in view of these material facts, the court does not accept the applicant ’ s denial and finds that his confession to the police is substantiated.” C. The appeal 24. On 2 January 2002 the applicant ’ s lawyer appealed against the judgment of the İzmir State Security Court. In her notice of appeal, she alleged a breach of Articles 5 and 6 of the Convention, arguing that the proceedings before the first-instance court had been unfair and that the court had failed to assess the evidence properly. 25. On 27 March 2002 the Principal Public Prosecutor at the Court of Cassation lodged a written opinion with the Ninth Division of the Court of Cassation in which he submitted that the Division should uphold the judgment of the İzmir State Security Court. This opinion was not served on the applicant or his representative. 26. On 10 June 2002 the Ninth Division of the Court of Cassation, upholding the İzmir State Security Court ’ s reasoning and assessment of the evidence, dismissed the applicant ’ s appeal. | The applicant, a minor at the time, was arrested on suspicion of participating in an illegal demonstration in support of the imprisoned leader of the PKK and accused of hanging an illegal banner from a bridge. He was subsequently convicted of aiding and abetting the PKK. The case concerned restriction on the applicant’s right of access to a lawyer while in police custody for an offence falling under the jurisdiction of the state security courts, regardless of age. |
119 | Domestic violence | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1965 and lives in Remanzaccio. 7. The applicant married A.T., a Moldovan national, and two children were born of the marriage: a daughter in 1992 and a son in 1998. 8. The applicant alleged that after their marriage her husband had started beating her. However, in 2011 the applicant followed her husband to Italy in order to provide her children with the opportunity of a more serene future. 1. The first assault committed by A.T. against the applicant and her daughter 9. The applicant submitted that her husband, who was an alcoholic, had already been physically abusing her for a long time when, on 2 June 2012, she requested the intervention of the police after she and her daughter had been assaulted by A.T. 10. When the police arrived, A.T. had left the family home. He was found in the street in a state of intoxication, with scratches on the left side of his face. The police drew up a report of the incident. The report stated that the applicant had been beaten and bitten in the face and the left leg and that she had a number of bruises. The report also stated that the applicant ’ s daughter had herself been hit after intervening to protect her mother and presented a neck injury caused by a fingernail and injuries to both arms. The applicant and her daughter were informed of their rights and expressed their intention to go to the hospital accident and emergency unit. 11. The applicant alleged that she had not, however, been informed of the possibility of lodging a complaint or contacting a shelter for battered women. She also submitted that she went to the accident and emergency unit in order to have her injuries recorded, but that after waiting for three hours she had decided to return home. 12. The Government, referring to the police report, submitted that there was no evidence that the applicant had gone to the accident and emergency unit. 2. The second assault committed by A.T. against the applicant a) The applicant ’ s version 13. The applicant submitted that after the assault on 2 June 2012 she had taken refuge in the cellar of her flat and started sleeping there. 14. She recounted the following events as follows. On 19 August 2012, after receiving a threatening telephone call from her husband, and fearing an attack by him, she decided to leave the house. When she returned home, she found that the cellar door had been broken. She tried telephoning a friend to ask if she could stay the night with her, but no one answered her call. She then decided to go back to the cellar. A.T. attacked her there with a knife and forced her to follow him in order to have sexual relations with his friends. Hoping that she would be able to seek help once outside, she resigned herself to following him. She asked a police patrol in the street for help. 15. The police merely checked her and A.T. ’ s identity papers, and despite the applicant ’ s assertions that she had been threatened and beaten by her husband, they invited her to go home without offering her help and told A.T. to keep away from her. A.T. was fined for unauthorised possession of a lethal weapon. 16. Shortly after she had returned home, the applicant called the emergency services and was taken to hospital. The doctors noted, among other things, that she suffered from cranial trauma, a head injury, multiple abrasions to her body and a bruise on her chest. It was deemed that her injuries would heal up within a week. b) The Government ’ s version 17. The Government indicated that, according to the incident report drawn up by the police, they had arrived at Leopardi Street shortly after midnight. The applicant informed them that she had been hit in the face. A.T. had given the police officers a knife. The applicant told the police that she wanted to go to hospital to have her injuries recorded. She had gone there and A.T. had returned home. The knife had been seized and the applicant fined for unauthorised possession of a lethal weapon. 3. The applicant ’ s complaint 18. At the hospital the applicant spoke to a social worker and said that she refused to return home to her husband. She was then given shelter by an association for the protection of female victims of violence, IOTUNOIVOI (“the association” ). 19. The president of the women ’ s shelter, accompanied by police officers, went to the cellar where the applicant had been living in order to fetch her clothes and personal effects. 20. From 20 August onwards A.T. began harassing the applicant by telephoning her and sending her insulting messages. 21. On 5 September 2012 the applicant lodged a complaint against her husband for bodily harm, ill-treatment and threats of violence, urging the authorities to take prompt action to protect her and her children and to prevent A.T. from approaching them. She stated that she had taken refuge in a women ’ s shelter and that A.T. was harassing her by telephone. 22. A.T. was placed under judicial investigation on charges of ill-treating family members, inflicting grievous bodily harm and making threats. The police sent the criminal complaint to the prosecution on 9 October 2012. 23. On 15 October 2012 the prosecution, having regard to the applicant ’ s requests for protection measures, ordered urgent investigative measures, in particular requesting the police to find potential witnesses, including the applicant ’ s daughter. 24. The applicant was given shelter by the association for three months. 25. In a letter of 27 August 2012 the head of Udine social services informed the association that there were no resources available to take charge of the applicant or to find alternative accommodation for her. 26. The Government gave a different interpretation of that letter, saying that, as the applicant had not first been referred to the Udine social services, which cared for victims of violence in the context of another project, called “Zero tolerance”, the latter could not pay the association ’ s expenses. In their submission, female victims of violence could contact social services requesting assistance, which the applicant had not done. 27. On 4 December 2012 the applicant left the shelter to look for work. 28. She said that she had first slept in the street before being accommodated by a friend, and had subsequently found a job as an assistant nurse for elderly people and was then able to rent a flat. According to the applicant, A.T. had continued exerting psychological pressure on her to withdraw her complaint. 29. On 18 March 2013 the prosecution, finding that no investigative measure had been carried out, again asked the police to investigate the applicant ’ s allegations rapidly. 30. On 4 April 2013, seven months after she had lodged her complaint, the applicant was questioned for the first time by the police. She altered her statements, mitigating the seriousness of her original allegations. Regarding the episode of June 2012 she stated that A.T. had unsuccessfully attempted to hit her and her daughter. With regard to the incident that had occurred in August 2012, she said that A.T. had hit her but had not threatened her with a knife. A.T. had, however, pretended to turn the knife on himself. The applicant also stated that at the time she had not spoken very good Italian and had not been able to express herself properly. She also stated that A.T. had not forced her to have sex with other people and that she had returned to live at the family home. She said that when she had been living at the shelter provided by the association, she had not spoken to her husband on the telephone because she had been told not to. She stated that, barring her husband ’ s alcoholism, the situation at home was calm. She concluded by saying that her husband was a good father and a good husband and that there had been no further episodes of violence. 31. The applicant submitted that she had altered her original statements because of the psychological pressure exerted on her by her husband. 32. On 30 May 2013 the Udine public prosecutor ’ s office, after noting, firstly, that the applicant, who had been interviewed in April, had mitigated her allegations against her husband saying that he had not threatened her with a knife and that she had been misunderstood by an employee from the shelter where she had taken refuge and, secondly, that no other violent episode had occurred, asked the investigating judge to close the complaint lodged against A.T. for ill-treatment of family members. Regarding the offence of grievous bodily harm, the prosecuting authorities indicated that they intended to continue the investigations. 33. In a decision of 1 August 2013 the investigating judge discontinued the part of the complaint concerning the allegations of ill-treatment of family members and threats. He considered that the course of the events was unclear and that, with regard to the alleged ill-treatment, the offence had not been made out because, since the applicant had complained only about the incident of August 2012, the criterion of repeated episodes of violence was not satisfied. 34. With regard to the complaint of threats aggravated by the use of a weapon, the investigating judge noted that the applicant ’ s statements were contradictory and that in the report drawn up by the hospital there was no reference to knife injuries. 35. With regard to the offence of causing bodily harm, the proceedings were continued before the magistrate. A.T. was committed for trial on 28 October 2013. The first hearing was held on 13 February 2014 and A.T. was ordered to pay a fine of 2,000 euros (EUR) on 1 October 2015. 4. The third assault by A.T., against the applicant and her son and the murder by A.T. of his son 36. It can be seen from the case file that on 18 November 2013 A.T. received notice of his committal for trial before the magistrate ’ s court on 19 May 2014 for inflicting bodily harm on the applicant in August 2012. 37. In the night of 25 November 2013 the applicant sought the intervention of the police in connection with a dispute with her husband. 38. The police made the following findings in their report : on their arrival they saw that the bedroom door had been broken down and that the floor was strewn with bottles of alcohol. The applicant had stated that her husband was under the influence of alcohol and that she had decided to call for help because she thought he needed a doctor. She told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her allegations. The applicant ’ s son had stated that his father had not been violent towards him. Neither the applicant nor her son had shown any traces of violence. 39. A. T. was taken to hospital in a state of intoxication. In the night he left the hospital and went to an amusement arcade. 40. While he was walking along the street he was arrested by the police for an identity check at 2. 25 a.m. 41. The police report shows that A.T. was in a state of intoxication and had difficulty keeping his balance and that the police had let him go after stopping and fining him. 42. At 5 a.m. A.T. entered the family flat armed with a 12 cm kitchen knife with the intention of assaulting the applicant. The applicant ’ s son attempted to stop him and was stabbed three times. He died of his wounds. The applicant tried to escape but A.T. succeeded in catching up with her in the street, where he stabbed her several times in the chest. 5. Criminal proceedings instituted against A.T. for grievous bodily harm 43. On 1 October 2015 A.T. was convicted by the magistrate ’ s court of inflicting grievous bodily harm on the applicant, on account of the injuries he had inflicted on her during the incident in August 2012, and sentenced to a fine of EUR 2 ,000. 6. Criminal proceedings instituted against A.T. for the murder of his son, the attempted murder of the applicant and ill-treatment of the applicant 44. On an unspecified date in November 2013 the investigation into acts of ill-treatment was reopened. 45. A.T. asked to be tried in accordance with the summary procedure ( giudizio abbreviato ). 46. On 8 January 2015 A.T. was sentenced to life imprisonment by the Udine preliminary hearings judge for the murder of his son and the attempted murder of his wife and for the offences of ill-treatment of his wife and daughter and unauthorised possession of a prohibited weapon. He was also ordered to pay the applicant, who had applied to join the proceedings as a civil party, EUR 400,000 in damages. 47. With regard to the ill-treatment, the preliminary hearings judge, after hearing witnesses and the applicant ’ s daughter, considered that the applicant and her children had been living in a climate of violence. He found that A.T. had been habitually violent and held that, apart from the daily harassment suffered by the applicant, there had been four violent episodes. He added that A.T., at his trial, had confessed to experiencing feelings of hatred towards his wife. According to the preliminary hearings judge, the events of 25 November 2013 were the consequence of an attempt by the applicant to get away from A.T. 48. On 22 May 2015 A.T. appealed against the judgment. It can be seen from the file that in a judgment of 26 February 2016 the judgment was upheld by the Court of Appeal. However, neither of the parties annexed the judgment to their observations. | This case concerned the conjugal violence suffered by the applicant, which resulted in the murder of her son and her own attempted murder. |
700 | Hate speech and right of others to respect for private life | I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant was born in 1996 and lives in Kaunas. The second applicant was born in 1995 and lives in Panevėžys. 7. At the time that the application was lodged with the Court, the first applicant was a secondary-school student at the Kaunas School of Applied Arts. He graduated from that school in June 2017. He is an openly gay man in a same-sex relationship with the second applicant. At the time of the lodging of the application with the Court, the second applicant was a theology student at the Vytautas Magnus University in Kaunas. In August 2015 he discontinued his theology studies and instead began studying psychology at the same university. Both applicants are members of the LGL Association. 8. As can be seen from the material provided and relied on by the Government – namely, copies of public posts on the Facebook pages of the first and the second applicants – on 31 December 2013 the second applicant publicly posted on Facebook that on that day he had “met for the first time” the first applicant. On 26 March 2014 the first applicant publicly posted on his Facebook account, asking: “Do I have any homophobic ‘friends’ who are against LGBT people?” On 17 May 2014 the first applicant publicly posted a summary of the main arguments cited by homophobic commenters (such as the assertion that homosexuality was a disease and a perversion that was against the laws of nature). On 30 May 2014 the first applicant stated in a public post that he had excluded homophobic persons from his Facebook “friends”. On 4 July 2014 the first applicant announced in a public post that he was “in a relationship” with the second applicant. 1. The photograph in question, and the comments and reaction that followed 9. On 8 December 2014 the first applicant posted a photograph on his Facebook page depicting a same-sex kiss between him and the second applicant. The picture was accessible not only to his Facebook “friends”, but also to the general public. As stated by the applicants in their application to the Court, the intention of posting the picture publicly was to announce the beginning of the applicants’ relationship. 10. According to the applicants, “the picture went viral online and it received more than 2,400 ‘likes’ and more than 800 comments”. They also submitted that the majority of online comments had been aimed at inciting hatred and violence against LGBT people in general, while numerous comments had directly threatened the applicants personally. The posted comments, of which the Lithuanian law-enforcement authorities were notified afterwards, included the following (the Lithuanian has not been corrected): “I’m going to throw up – they should be castrated or burnt; cure yourselves, jackasses – just saying” ( Vimtelsiu, kastruot ar degint tokius, pasigydykit asilai, tik sakau ) “If you were born perverts and have this disorder, then go and hide in basements and do whatever you like there, faggots. But you will not ruin our beautiful society, which was brought up by my mum and dad, where men kiss women and do not prick their skewers together. I genuinely hope that while you are walking down the street, one of you will get your head smashed in and your brain shaken up” ( Jei jau gimet isgamom ir turit liga, eikit pasislepe rusiuose ka norit ir darykit pyderastai. Bet musu grazios visuomenes, kuria uzaugino mama ir tetis ir vyrai buciuoja moteris, o ne badosi spagom tarpusavyje – nesugadinsit. As labai nuosirdziai tikiuosi kad kazkuriam is jusu einant gatve atitrenks galva kazkas ir atpurtys smegeneles ) “These faggots fucked up my lunch; if I was allowed to, I would shoot every single one of them” ( Supisti pietai per siuos pyderastus, leistu visus iki vieno issaudyciau ) “Scum!!!!!! Into the gas chamber with the pair of them” ( Urodai!!!!!! I duju kameras abu ) “Hey fags – I’ll buy you a free honeymoon trip to the crematorium.” ( Ei pyderai medaus menesio kelione nupirksiu nasaram y krematoriuma ) “Fucking faggots – burn in hell, garbage” ( Kurwa pydarai blt, dekit pragare siuksles ) “Into the bonfire with those faggots ...” ( Pydarastus and lauzo ... ) “For fuck’s sake ... You fucking gays – you should be exterminated FU” ( Eik tu nahui... Gėjai jūs supisti, jus naikint nx ) “Because you’re faggots, and children can see photos such as these, it’s not only the Jews that Hitler should have burned” ( Tuom kad jus pydarasai esat ir vaikai mato tokias ft issigimeli, galėjo Hitleris netik žydus deginti ) “Burn the faggots, damn it” ( Sudeginti piderastus ku*va ) “Fags! Into the bonfire those bitches!” ( Gaidžiai! Ant laužo kurvas! ) “Fuck you – damn it, kill yourselves, faggots” ( Eik to nahui krw nusizudykit piderai ) “Satan, please allow me to smash their heads into a wall” ( Šetone prašau duok man leidimą daužys tokiem galvas į sienas ) “Oh for fuck’s sake – get the fuck out of Lithuania and don’t shame us, you fucking capon; we should put your head under a car and into the noose, you fucking faggot” ( Oj kurwa pidaras pusk is lt nedares gedos wisgaidy tu krw jabanas galwa po masina pakist ir sniurais suka tu kwr jabanas ) “Kill ...” ( Zudyt ... ) 11. On 9 December 2014 the photograph was reposted by LGBT-friendly Vilnius (an organisation upholding the rights of LGBT people) on its public Facebook page with the following comment: “Two young men, who live in Kaunas – Pijus and Mangirdas – today caused a big commotion on Lithuanian Facebook pages, provoking a huge number of ‘likes’, ‘shares’; and hateful comments ... Why? The reason is simple: a kiss. Nothing more, nothing less. We asked them what prompted their choice to make this nice photograph public. Here is Pijus’s wise reply: ‘We hope that maybe some lonely person, who is being condemned by others, will see this photograph and will no longer feel lonely. Maybe, [standing] on the roof of some house, or on the edge of a window sill or balcony, he or she will move to a safer spot, where nothing will threaten him or her and his or her life will not be just a statistic.’ Thank you Pijus, and thank you, Mangirdas! Your courage inspires and gives hope. Let’s express our support by sharing [the link to the post carrying the photograph] and expressing our opinion.” 12. On 10 December 2014 the LGL Association shared the photograph on its Facebook page and publicly posted the following: “We are happy about the bravery of these young men. Now they need support – more than ever – here on Facebook, and also in their everyday life. So, is it just a kiss? What is the reaction of Lithuanians who avoid being labelled as homophobes? Please pay attention to their opinions expressed in the comments.” 13. Subsequently, on 12 December 2014, the LGL Association stated in a public post on its Facebook page: “Homophobia seeps through not only anonymous comments on Internet portals but also on Facebook, where people post under their true names. We did as we said we would: the meanest comments and their authors have already been denounced to the law-enforcement institutions. Do express your opinion respectfully and responsibly ... There are thousands of comments and thousands of people making them. You cannot catch them all, but this is not our purpose. It is more important to show society that [making such hateful comments] is against the law and that hatred cannot be tolerated.” 14. In that context, the Government also provided a screenshot of the first applicant’s Facebook page from December 2016, where he had written “Two years ago we were causing a commotion” and provided a link to the photograph in question. 15. In June 2016 LGBT-friendly Vilnius shared on its Facebook page both applicants’ impressions of the Baltic Pride event. The applicants expressed their satisfaction that the parade had gone well and had passed off without incidents such as the throwing of eggs or disruptions staged by “supporters of traditional values”. The two applicants had marched at the forefront of the parade, carrying the Lithuanian flag. 2. The attempts to have criminal proceedings opened 16. On 10 December 2014 both applicants lodged a written request with the LGL Association, of which they were both members (see paragraph 7 above), asking it to notify, in its own name, the Prosecutor General’s Office of the hateful comments left under the photograph posted on the first applicant’s Facebook page. They submitted that the comments were not only degrading, detrimental to their dignity and incited discrimination, but also “incited violence and physically violent treatment”. The comments were therefore frightening both to homosexual people in general and to the applicants in particular. The applicants considered that such actions were criminal and merited pre-trial investigation. They reasoned in their request that their wish for the LGL Association, as a non-governmental organisation that defended the public interest, to act on their behalf was based on the applicants’ view that the Lithuanian legal system did not provide any additional procedural guarantees for alleged victims of homophobic hate crimes. The applicants also wrote that they feared retaliation by the authors of the online comments should they personally lodge such a complaint with the prosecutor. They also believed that were they to lodge a personal complaint it would not be treated seriously by law-enforcement officials. 17. On 12 December 2014 the LGL Association lodged a complaint with the Prosecutor General’s Office, asking that criminal proceedings be initiated regarding thirty-one comments posted on the first applicant’s public Facebook page (see paragraph 10 above). The complaint was lodged on the basis of Article 170 §§ 2 and 3 of the Criminal Code (“Incitement against any national, racial, ethnic, religious or other group of people” – see paragraph 30 below) and Article 19 § 1 (3) of the Law on the Provision of Information to the Public, which prohibits publishing in the media information that incites hatred or violence against a group of people because of their sexual orientation (see paragraph 33 below). It was indicated in the complaint that the comments in question had ridiculed and expressed contempt for individuals of homosexual orientation, and incited discrimination, hatred and violence against them. The LGL Association also added a hard copy of the photograph in question and the comments posted below it. 18. On 30 December 2014 a prosecutor at the Klaipėda district prosecutor’s office took the decision not to initiate a pre-trial investigation regarding the LGL Association’s complaint. Having examined the thirty-one comments referred to by the LGL Association, the prosecutor noted that of those thirty-one comments, twenty-seven people had written one comment each, and two people had written two comments each. For the prosecutor, this was easy to establish, since the commenters had placed those comments under their personal profiles. The prosecutor held that in order to assess whether the comments in question were of a criminal nature, it was necessary to take into account not only the comments as such, but also the context in which those comments had been written. Given that the comments had been written by different people, each comment had to be assessed individually, and not collectively. It was also essential to establish whether those comments constituted an active attempt ( aktyvus siekis ) to incite other people to disseminate degrading comments and to incite them to commit violence. The prosecutor then considered that active attempts required “systematic action”. In the applicants’ case, however, that criterion had not been met because various individuals had written only one or two comments, which was not enough to be considered as constituting a systematic attempt to incite hatred or violence against people distinguishable by their sexual orientation. From this it followed that the objective element of a crime, as established under Article 170 §§ 2 and 3 of the Criminal Code, was absent. Furthermore, the fact that the “expression of opinion” in question had been non-systematic and isolated meant that there had been no subjective element – namely, that of direct intent – in the crime in question, because by posting the comments the authors thereof had merely been “expressing their opinion”, instead of seeking to incite hatred or violence against individuals who were distinguishable by their sexual orientation. Even though the authors of the comments had reacted “unethically” in respect of the image portrayed in the photograph of the two applicants, such “immoral behaviour” did not constitute an element of a crime under Article 170 §§ 2 and 3 of the Criminal Code. The prosecutor lastly considered that the Supreme Court was of a similar view, in view of the fact that by a ruling of 18 December 2012 in case no. 2K-677/2012 it had acquitted a person who had posted a comment stating that gay people were “perverts” and “belonged in a psychiatric hospital”. In that case the Supreme Court had considered that such a comment, even though unethical, had not actively incited hatred or discrimination against homosexual people (for a more detailed description see paragraphs 39-41 below). The prosecutor thus found that his conclusion was in line with the Supreme Court’s practice in such cases – that is to say, that comments of such a tenor were unethical but not criminal. 19. On 9 January 2015 the LGL Association lodged an appeal against the prosecutor’s decision with the Klaipėda City District Court. The LGL Association pointed out that the prosecutor had taken the decision not to prosecute on two grounds: firstly, that the actions of the people who had commented on the above-mentioned Facebook post had not been systematic in nature, and secondly, that in respect of cases concerning similar situations (that is to say, comments of a similar nature) the authorities routinely considered that no crime had been committed. The LGL Association noted that in more than 90% of cases in Lithuania, hatred was promoted through the electronic sphere – for example, by the creation of hatred-promoting groups on the Facebook social network or on Internet forums. The LGL Association also relied on Lithuanian court decisions of 2014 at district court (that is to say, first-instance) level which had found that a single comment had been sufficient to find the author thereof guilty of a crime under Article 170 § 2 of the Criminal Code (see paragraphs 50-51 below). The LGL Association thus disputed the prosecutor’s conclusion that such actions had to be systematic in nature in order for criminal liability to arise. The LGL Association argued that the question of whether or not comments could be deemed to be systematic in nature could be taken into account when assessing the gravity of a crime and imposing a punishment on the author of such comments, but it did not amount to a constitutive element of that crime. As to the applicants’ case in particular, it also argued, inter alia, that several terms contained in the comments had promoted the infliction of physical harm and even the killing of members of the group in question (for example, advocating burning and extermination), which had indicated their authors’ “particular attitude” ( ypatingą nusiteikimą ) towards people of non-traditional sexual orientation and had clearly intentionally articulated a call for violence. On this point the LGL Association relied on the Court’s judgment in Vejdeland v. Sweden (no. 1813/07, §§ 54-55, 9 February 2012), in which it had held that Sweden had not breached the rights of the applicants in that case by prosecuting them, even if their statements had not called for violence. Lastly, the LGL Association argued that if the comments under the photograph of the applicants on Facebook had been only “expressing [the authors’] opinion”, it was totally unclear what could be considered to constitute “publicly ridiculing, expressing contempt, urging hatred or inciting discrimination” within the meaning of Article 170 § 2 of the Criminal Code. That norm of criminal law was destined to become a “dead letter”, which the law-enforcement authorities chose not to apply “by giving unjustified preference to freedom of expression, or perhaps owing to other motives which, although not related to law, had an influence on law”. 20. By a ruling of 23 January 2015, the Klaipėda City District Court dismissed the LGL Association’s appeal. The court shared the prosecutor’s view that the authors of the impugned comments “had chosen improper words” ( pavartojo netinkamus žodžius ) to express their disapproval of homosexual people. Even so, the “mere use of obscenities” ( tik necenzūrinių žodžių pavartojimas ) was not enough to incur criminal liability under Article 170 § 2 of the Criminal Code. The court considered that in making such comments their authors had not been inciting others to discriminate against or hate homosexuals. 21. The District Court also pointed out that the first applicant’s Facebook page, where the picture of the two men kissing had been posted, had been public, visible and accessible not only to his acquaintances and friends, but also to individuals who were completely unknown to him. Therefore, a person who posted in the public sphere ( viešoje erdvėje ) a picture “of two men kissing” should and must have foreseen that such “eccentric behaviour really did not contribute to the social cohesion of those who had different views or to the promotion of tolerance” ( ekscentriškas elgesys tikrai neprisideda prie visuomenėje kitokias pažiūras turinčių asmenų tarpusavio supratimo bei tolerancijos ugdymo ). The owner of a social network profile on which such an image was posted, by exercising his freedom to express his convictions and freedom to promote tolerance, had to take into account the fact that that freedom was inseparable from the obligation to respect the views and traditions of others. According to the court, “the majority of Lithuanian society very much appreciate[d] traditional family values” ( itin vertina tradicinės šeimos vertybes ). Indeed, that view was enshrined in Article 38 of the Constitution, which read that the family should be the basis of society and the State, and that marriage should be undertaken on the basis of the free mutual consent of a man and a woman. The District Court also referred to a passage from the Constitutional Court’s ruling of 28 September 2011 (see paragraph 34 below), and from that ruling inferred that “the family, as a constitutional value, is a union between a man and a woman”. Lastly, the court stated that criminal proceedings were an ultima ratio measure and that they should therefore be initiated only when serious grounds and all the elements of a crime existed. This was not the situation in the case at hand. In its view, the decision not to prosecute the authors of the comments had been reasonable. 22. The LGL Association lodged an appeal on 29 January 2015. It pleaded that certain comments had been clearly meant to incite violence, thus directly constituting an objective element of a crime under Article 170 §§ 2 and 3 of the Criminal Code. The LGL Association noted that even milder public comments, although concerning racial or ethnic discrimination, had been considered by the Lithuanian courts to constitute a crime. The LGL Association also argued that the subjective element of a crime, that is to say direct intent, should be assessed only after the identification of the alleged perpetrators and during subsequent criminal proceedings, not at the time that a procedural decision was taken regarding whether to start a pre-trial investigation or not. Responding to the District Court’s statement that the majority of Lithuanian society very much appreciated “traditional family values”, the LGL Association underlined that a criminal offence could not be justified by the views and traditions of either an individual or the majority of society. In that connection the LGL Association also relied on the Court’s case-law, which held that freedom of expression was applicable not only to “information” or “ideas” that were favourably received or regarded as inoffensive or as a matter of indifference, but also those that offended, shocked or disturbed. The LGL Association lastly referred to the Court’s judgment in Balsytė-Lideikienė v. Lithuania (no. 72596/01, § 82, 4 November 2008) to the effect that one right, such as the freedom of speech of the authors of the comments, could be restricted if such a restriction was necessary because that speech was offensive. 23. By a final ruling of 18 February 2015 the Klaipėda Regional Court dismissed the LGL Association’s appeal, upholding the prosecutor’s and the District Court’s reasoning, including that court’s arguments regarding the applicants’ “eccentric behaviour”. The Regional Court also underlined the fact that the first applicant had posted the photograph in question publicly and had not restricted it to his friends or “like-minded people” ( bendraminčiams ), even though the Facebook social network allowed such a possibility. Such an action could therefore be interpreted as constituting “an attempt to deliberately tease or shock individuals with different views or to encourage the posting of negative comments”. The court also considered that, in the absence of objective and subjective elements of a crime under Article 170 of the Criminal Code, it would constitute a “waste of time and resources”, or even an unlawful restriction of the rights of others [that is to say, Internet commenters’] to open criminal proceedings. Lastly, criminal proceedings constituted an ultima ratio measure, and not all actions merited them. 3. Subsequent developments, as presented by the parties 24. In their application to the Court the applicants stated that the proceedings before the domestic courts had generated a lot of interest in both the local and international media. As a result, they had experienced an increased level of attention and hostility both in the private and in the public spheres. The first applicant had been summoned by his secondary-school headmaster, who had requested him “not to disseminate his ideas”. The second applicant had been summoned by the dean of the university theology faculty, who had requested him to change his course of study because his “lifestyle did not correspond with the faculty’s values”. On several occasions the applicants had been verbally harassed in public places. They had also received a number of threatening private messages in their social network mailboxes. None of those incidents had been reported to the police, because the applicants had been steadily losing their faith in the effectiveness of the law-enforcement system in Lithuania in the light of their unsuccessful attempts to launch a pre-trial investigation in connection with the initial hateful comments. 25. For their part, the Government referred to a number of educational programmes at the first applicant’s secondary school aimed at raising children’s understanding of such issues as respect, solidarity and non-discrimination. They also could not speculate on the reasons for the second applicant changing his course of study. The Government lastly pointed out that the applicants themselves had never attempted to persuade the domestic authorities to initiate any kind of pre-trial investigation regarding any alleged subsequent discriminatory acts. | The applicants, two young men who were in a relationship, alleged that they had been discriminated against on the grounds of sexual orientation because of the authorities’ refusal to launch a pre-trial investigation into the hate comments on the Facebook page of one of them. The latter had posted a photograph of them kissing on his Facebook page, which led to hundreds of online hate comments. Some were about LGBT people in general, while others personally threatened the applicants. The applicants submitted that they had been discriminated against on the grounds of sexual orientation. They also argued that the refusal had left them with no possibility of legal redress. |
189 | Online harassment | 2. The applicant is Ms Valeriya Igorevna Volodina; she is a Russian national who was born in 1985 and lives in an undisclosed location in Russia. In 2018, fearing for her safety, she obtained a legal change of name (see Volodina v. Russia, no. 41261/17, § 39, 9 July 2019). Her old name is used in the judgment to protect her safety. The applicant was represented before the Court by Ms Vanessa Kogan, director of the Stichting Justice Initiative, a human-rights organisation based in Utrecht, the Netherlands. 3. The Government were initially represented by Mr M. Galperin, former Representative of the Russian Federation to the European Court of Human Rights, and later by his successor in this office, Mr M. Vinogradov. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Circumstances of the case 5. In November 2014 the applicant began a relationship with Mr S., an Azerbaijani national. After their separation in 2015, S. threatened her with death or bodily injuries; he abducted and assaulted her on several occasions. For details, see Volodina, cited above, §§ 10-36. 6. In June 2016 the applicant’s brother told her that her account on the Russian social media platform VKontakte had been hacked. Her invented name had been replaced with the real name; her personal details, a photograph of her passport and her intimate photographs had been uploaded to the account. Classmates of her twelve ‑ year-old son and his class teacher had been added as friends. The applicant attempted to log into her account only to discover that the password had been changed. 7. On 22 June 2016 the applicant complained to the Ulyanovsk police about a breach of her right to privacy. The police took a statement from the applicant’s brother. He said that he had talked to S. on the phone and that S. had admitted that he had hacked into the applicant’s email account and sent obscene messages to her contacts. He had done so out of desperation because he had “no good way of bringing [her] back”. Claiming that they were unable to locate S. in their jurisdiction, on 21 July 2016 the Ulyanovsk police forwarded the matter to the police in the Krasnodar Region where S. had registered his residence. On 29 August 2016 the Krasnodar police sent the file on to the Samara Region where S. had moved. On 30 September 2016 the Samara police returned the case file to their colleagues in Ulyanovsk. 8. On 7 November 2016 the Ulyanovsk police declined to institute criminal proceedings on the grounds that the information had been made public on social media rather than in the media. The supervising prosecutor set that decision aside as unlawful because S. had not been interviewed. On 2 May 2017 the police again declined to open a criminal case, finding no indication that S. had collected or disseminated information about the applicant’s private life. The decision stated that it had not been possible to locate S. who had no Russian nationality or proof of residence in Russia. On 1 February 2018 the supervising prosecutor annulled that decision. He directed the police to locate and interview S., to examine his electronic devices and records of his phone calls to the applicant. 9. On 6 March 2018 the Ulyanovsk police opened a criminal investigation under Article 137 of the Criminal Code. Over the following months, police investigators interviewed the applicant and S., first separately and later face ‑ to-face, took statements from the applicant’s family members, seized and examined their mobile phones, obtained logs of phone communications from mobile providers, received information from the company operating the VKontakte site, and talked to a social media expert. 10. In February, March and September 2018, new fake profiles in the applicant’s name appeared on VKontakte and Instagram. The profiles used her intimate photographs and personal details. 11. On 13 August and 19 September 2018 the applicant complained to the Ulyanovsk police that S. had sent her death threats via social media and Internet messengers. She enclosed printouts of messages and asked the police to open a criminal case under Article 119 of the Criminal Code (threats of death or bodily injury) and to grant her protection. On 3 January 2019 the police refused to open a criminal case on the grounds that the threats had not been “real”. 12. Following the creation of court orders prohibiting certain forms of conduct (see paragraph 32 below), on 28 September 2018 the applicant asked the investigator to seek an order which would prevent S. from using the Internet, contacting her by any means including via social media, e-mail or Internet messengers, or approaching her or members of her family. On 18 October 2018 the investigator replied that, on account of his independent standing in the proceedings, the parties could not dictate him what action needed to be taken. He refused her request on the grounds that “measures of restraint could be applied to suspects in exceptional circumstances only”. By judgment of 27 November 2018, as upheld on appeal on 21 January 2019, the Ulyanovsk courts dismissed the applicant’s complaint about the investigator’s decision on the grounds that it had been issued by a competent official within his scope of discretion. 13. On 12 December 2018 the applicant complained to the Kuntsevskiy District Court in Moscow that the Kuntsevskiy district police had not responded in any way to her report of a tracking device she had found in her bag two years previously (see Volodina, cited above, §§ 28-29). On 26 December 2018 the District Court found no fault with the actions of the district police because the deputy chief had forwarded the applicant’s report to the Special Technical Measures Bureau shortly upon its receipt. On 28 February 2019 the Moscow City Court dismissed, in a summary fashion, her appeal against the District Court’s decision. 14. On 19 January 2019 the Ulyanovsk police suspended the investigation into the fake social media profiles. They established that two fake profiles had been created in February and March 2018 using IP addresses and phone numbers registered in Azerbaijan. According to the billing information of his phones and the police database, on critical dates S. had been in the Tambov Region in Russia. The investigators decided to ask their Azerbaijani counterparts to obtain records of phone communications from the Azerbaijani number. 15. Counsel for the applicant applied for judicial review of the investigators’ decisions. She complained that the criminal case had been opened following a two-year period of inactivity after the first report, that the fake profiles created in 2016 had not been investigated, that S.’s friends and connections had not been identified or interviewed, that communications between S. and the phone number in Azerbaijan had not been evaluated, and that the collected evidence had not been made available to the applicant. 16. On 25 June 2019 the Zavolzhskiy District Court in Ulyanovsk set aside the 19 January 2019 suspension decision as unlawful and premature in so far as it did not fix a time-limit for receiving a reply from Azerbaijan and as it prevented the applicant from requesting the investigator to follow the leads which she believed needed to be explored. On 19 August 2019 the Ulyanovsk Regional Court quashed the District Court’s decision in respect of the applicant’s complaints which had been granted. It held that the law did not require the investigator to make the case file available to the applicant until the investigation had been completed, and that the suspension decision had been lawful because “the investigator had ... given due consideration to all the circumstances” underlying that decision. 17. On 14 September 2019 the Kuntsevskiy district police in Moscow refused to open a criminal investigation into the tracking device. The decision listed the constituent elements of an offence under Article 137 of the Criminal Code and stated that the device had been identified as a Russian ‑ made GPS tracker which was legally available for purchase. As the applicant had thrown away the device and the SIM card it contained, it was impossible to identify the owner. Her claim that “no one but [S.] could have planted the device” was speculation which could not be accepted as evidence. As there was no “objective evidence incriminating [S.]”, the criminal case against him could not continue. 18. On 20 October 2019 the owner of the telephone number registered in Azerbaijan which had been used for the fake social media accounts was established and questioned. The applicant was not informed of this development. Nor was it mentioned in the investigator’s subsequent decision of 25 December 2019 to suspend the criminal proceedings due to the failure to identify the perpetrator. 19. On 18 May 2020 the applicant was questioned about the fake profiles which had appeared in 2018 on Instagram and VKontakte. The investigator asked the applicant if she knew certain named individuals in Azerbaijan and whether she would accept a polygraph test. She said she did not know these people and refused the test. 20. On 14 October 2020 the Ulyanovsk police closed the criminal case under Article 137 of the Criminal Code. According to the decision, it was established that in February and March 2018 S. had created fake profiles on VKontakte in the applicant’s name and had published nude photos of her without her consent. The published photos had been found on his phone during an inspection. On 13 October 2020 S. had filed a motion to discontinue the proceedings because the limitation period had expired. The motion had been granted: as the offence under Article 137 was of lesser gravity, the two ‑ year period of limitation had expired in March 2020. 21. The decision was not communicated to the applicant or her lawyer. On 14 April 2021 she became aware of its existence from the Government’s Action Plan submitted to the Committee of Ministers in the framework of execution of the Volodina group of cases. | This case concerned the applicant’s allegation that the Russian authorities had failed to protect her against repeated acts of cyberharassment. She submitted, in particular, that her former partner had used her name, personal details and intimate photographs to create fake social media profiles, that he had planted a GPS tracker in her handbag, that he had sent her death threats via social media; and that the authorities had failed to effectively investigate these allegations. |
320 | Article 4 § 1 (prohibition of slavery and servitude) of the Convention | I. THE CIRCUMSTANCES OF THE CASE 13. The applicant, Mr Nikolay Mikhaylovich Rantsev, is a Russian national who was born in 1938 and lives in Svetlogorsk, Russia. He is the father of Ms Oxana Rantseva, also a Russian national, born in 1980. 14. The facts of the case, as established by the submissions of the parties and the material submitted by them, in particular the witness statements taken by the Cypriot police, may be summarised as follows. A. The background facts 15. Oxana Rantseva arrived in Cyprus on 5 March 2001. On 13 February 2001, X.A., the owner of a cabaret in Limassol, had applied for an “artiste ” visa and work permit for Ms Rantseva to allow her to work as an artiste in his cabaret (see further paragraph 115 below). The application was accompanied by a copy of Ms Rantseva ’ s passport, a medical certificate, a copy of an employment contract (apparently not yet signed by Ms Rantseva ) and a bond, signed by [X.A.] Agencies, in the following terms (original in English) : “KNOW ALL MEN BY THESE PRESENTS that I [X.A.] of L/SSOL Am bound to the Minister of the Interior of the Republic of Cyprus in the sum of £150 to be paid to the said Minister of the Interior or other the [sic] Minister of Interior for the time being or his attorney or attorneys. Sealed with my seal. Dated the 13 th day of February 2001 WHEREAS Ms Oxana RANTSEVA of RUSSIA Hereinafter called the immigrant, (which expression shall where the context so admits be deemed to include his heirs, executors, administrators and assigns) is entering Cyprus and I have undertaken that the immigrant shall not become in need of relief in Cyprus during a period of five years from the date hereof and I have undertaken to replay [sic] to the Republic of Cyprus any sum which the Republic of Cyprus may pay for the relief or support of the immigrant (the necessity for which relief and support the Minister shall be the sole judge) or for the axpenses [sic] of repatriating the immigrant from Cyprus within a period of five years from the date hereof. NOW THE CONDITION OF THE ABOVE WRITTEN BOND is such that if the immigrant or myself, my heirs, executors, administrators and assigns shall repay to the Republic of Cyprus on demand any sum which the Republic of Cyprus may have paid as aforesaid for the relief or Support of the immigrant or for the expenses of repatriation of the immigrant from Cyprus then the above written bond shall be void but otherwise shall remain in full force.” 16. Ms Rantseva was granted a temporary residence permit as a visitor until 9 March 2001. She stayed in an apartment with other young women working in X.A. ’ s cabaret. On 12 March 2001 she was granted a permit to work until 8 June 2001 as an artiste in a cabaret owned by X.A. and managed by his brother, M.A. She began work on 16 March 2001. 17. On 19 March 2001, at around 11a.m., M.A. was informed by the other women living with Ms Rantseva that she had left the apartment and taken all her belongings with her. The women told him that she had left a note in Russian saying that she was tired and wanted to return to Russia. On the same date M.A. informed the Immigration Office in Limassol that Ms Rantseva had abandoned her place of work and residence. According to M.A. ’ s subsequent witness statement, he wanted Ms Rantseva to be arrested and expelled from Cyprus so that he could bring another girl to work in the cabaret. However, Ms Rantseva ’ s name was not entered on the list of persons wanted by the police. B. The events of 28 March 2001 18. On 28 March 2001, at around 4 a.m., Ms Rantseva was seen in a discotheque in Limassol by another cabaret artiste. Upon being advised by the cabaret artiste that Ms Rantseva was in the discotheque, M.A. called the police and asked them to arrest her. He then went to the discotheque together with a security guard from his cabaret. An employee of the discotheque brought Ms Rantseva to him. In his subsequent witness statement, M.A. said (translation) : “When [Ms Rantseva] got in to my car, she did not complain at all or do anything else. She looked drunk and I just told her to come with me. Because of the fact that she looked drunk, we didn ’ t have a conversation and she didn ’ t talk to me at all.” 19. M.A. took Ms Rantseva to Limassol Central Police Station, where two police officers were on duty. He made a brief statement in which he set out the circumstances of Ms Rantseva ’ s arrival in Cyprus, her employment and her subsequent disappearance from the apartment on 19 March 2001. According to the statement of the police officer in charge when they arrived (translation) : “On 2 8 March 2001, slightly before 4 a.m., [M.A.] found [ Ms Rantseva ] in the nightclub Titanic ... he took her and led her to the police station stating that Ms Rantseva was illegal and that we should place her in the cells. He ( [M.A.] ) then left the place (police station). ” 20. The police officers then contacted the duty passport officer at his home and asked him to look into whether Ms Rantseva was illegal. After investigating, he advised them that her name was not in the database of wanted persons. He further advised that there was no record of M.A. ’ s complaint of 19 March 2001 and that, in any case, a person did not become illegal until 15 days after a complaint was made. The passport officer contacted the person in charge of the AIS (Police Aliens and Immigration Service), who gave instructions that Ms Rantseva was not to be detained and that her employer, who was responsible for her, was to pick her up and take her to their Limassol Office for further investigation at 7 a.m. that day. The police officers contacted M.A. to ask him to collect Ms Rantseva. M.A. was upset that the police would not detain her and refused to come and collect her. The police officers told him that their instructions were that if he did not take her they were to allow her to leave. M.A. became angry and asked to speak to their superior. The police officers provided a telephone number to M.A. The officers were subsequently advised by their superior that M.A. would come and collect Ms Rantseva. Both officers, in their witness statements, said that Ms Rantseva did not appear drunk. The officer in charge said (translation): “ Ms Rantseva remained with us ... She was applying her make-up and did not look drunk ... At around 5.20a.m. ... I was ... informed that [M.A.] had come and picked her up ... ” 21. According to M.A. ’ s witness statement, when he collected Ms Rantseva from the police station, he also collected her passport and the other documents which he had handed to the police when they had arrived. He then took Ms Rantseva to the apartment of M.P., a male employee at his cabaret. The apartment M.P. lived in with his wife, D.P., was a split-level apartment with the entrance located on the fifth floor of a block of flats. According to M.A., they placed Ms Rantseva in a room on the second floor of the apartment. In his police statement, he said: “ She just looked drunk and did not seem to have any intention to do anything. I did not do anything to prevent her from leaving the room in [the] flat where I had taken her.” 22. M.A. said that M.P. and his wife went to sleep in their bedroom on the second floor and that he stayed in the living room of the apartment where he fell asleep. The apartment was arranged in such a way that in order to leave the apartment by the front door, it would be necessary to pass through the living room. 23. M.P. stated that he left his work at the cabaret “Zygos” in Limassol at around 3.30 a.m. and went to the “Titanic” discotheque for a drink. Upon his arrival there he was informed that the girl they had been looking for, of Russian origin, was in the discotheque. Then M.A. arrived, accompanied by a security guard from the cabaret, and asked the employees of “ Titanic ” to bring the girl to the entrance. M.A., Ms Rantseva and the security guard then all got into M.A. ’ s car and left. At around 4.30 a.m. M.P. returned to his house and went to sleep. At around 6 a.m. his wife woke him up and informed him that M.A. had arrived together with Ms Rantseva and that they would stay until the Immigration Office opened. He then fell asleep. 24. D.P. stated that M.A. brought Ms Rantseva to the apartment at around 5.45 a.m.. She made coffee and M.A. spoke with her husband in the living room. M.A. then asked D.P. to provide Ms Rantseva with a bedroom so that she could get some rest. D.P. stated that Ms Rantseva looked drunk and did not want to drink or eat anything. According to D.P., she and her husband went to sleep at around 6 a.m. while M.A. stayed in the living room. Having made her statement, D.P. revised her initial description of events, now asserting that her husband had been asleep when M.A. arrived at their apartment with Ms Rantseva. She stated that she had been scared to admit that she had opened the door of the apartment on her own and had had coffee with M.A.. 25. At around 6.30 a.m. on 28 March 2001, Ms Rantseva was found dead on the street below the apartment. Her handbag was over her shoulder. The police found a bedspread looped through the railing of the smaller balcony adjoining the room in which Ms Rantseva had been staying on the upper floor of the apartment, below which the larger balcony on the fifth floor was located. 26. M.A. claimed that he woke at 7 a. m. in order to take Ms Rantseva to the Immigration Office. He called to D.P. and M.P. and heard D.P. saying that the police were in the street in front of the apartment building. They looked in the bedroom but Ms Rantseva was not there. They looked out from the balcony and saw a body in the street. He later discovered that it was Ms Rantseva. 27. D.P. claimed that she was woken by M.A. knocking on her door to tell her that Ms Rantseva was not in her room and that they should look for her. She looked for her all over the apartment and then noticed that the balcony door in the bedroom was open. She went out onto the balcony and saw the bedspread and realised what Ms Rantseva had done. She went onto another balcony and saw a body lying on the street, covered by a white sheet and surrounded by police officers. 28. M.P. stated that he was woken up by noise at around 7 a.m. and saw his wife in a state of shock; she told him that Ms Rantseva had fallen from the balcony. He went into the living room where he saw M.A. and some police officers. 29. In his testimony of 28 March 2001, G.A. stated that on 2 8 March 2001, around 6.30 a.m., he was smoking on his balcony, located on the first floor of M.P. and D.P. ’ s building. He said : “I saw something resembling a shadow fall from above and pass directly in front of me. Immediately afterwards I heard a noise like something was breaking ... I told my wife to call the police ... I had heard nothing before the fall and immediately afterwards I did not hear any voices. She did not scream during the fall. She just fell as if she were unconscious ... Even if there had been a fight (in the apartment on the fifth floor) I would not have been able to hear it.” C. The investigation and inquest in Cyprus 30. The Cypriot Government advised the Court that the original investigation file had been destroyed in light of the internal policy to destroy files after a period of five years in cases where it was concluded that death was not attributable to a criminal act. A duplicate file, containing all the relevant documents with the exception of memo sheets, has been provided to the Court by the Government. 31. The file contains a report by the officer in charge of the investigation. The report sets out the background facts, as ascertained by forensic and crime scene evidence, and identifies 17 witnesses: M.A., M.P. D.P., G.A., the two police officers on duty at Limassol Police Station, the duty passport officer, eight police officers who attended the scene after Ms Rantseva ’ s fall, the forensic examiner and the laboratory technician who analysed blood and urine samples. 32. The report indicates that minutes after receiving the call from G.A. ’ s wife, shortly after 6.30 a.m., the police arrived at the apartment building. They sealed off the scene at 6.40 a.m. and began an investigation into the cause of Ms Rantseva ’ s fall. They took photographs of the scene, including photographs of the room in the apartment where Ms Rantseva had stayed and photographs of the balconies. The forensic examiner arrived at 9.30 a.m. and certified death. An initial forensic examination took place at the scene 33. On the same day, the police interviewed M.A., M.P. and D.P. as well as G.A.. They also interviewed the two police officers who had seen M.A. and Ms Rantseva at Limassol Police Station shortly before Ms Rantseva ’ s death and the duty passport officer (relevant extracts and summaries of the statements given is included in the facts set out above at paragraphs 17 to 29 ). Of the eight police officers who attended the scene, the investigation file includes statements made by six of them, including the officer placed in charge of the investigation. There is no record of any statements being taken either from other employees of the cabaret where Ms Rantseva worked or from the women with whom she briefly shared an apartment. 34. When he made his witness statement on 28 March 2001, M.A. handed Ms Rantseva ’ s passport and other documents to the police. After the conclusion and signature of his statement, he added a clarification regarding the passport, indicating that Ms Rantseva had taken her passport and documents when she left the apartment on 19 March 2001. 35. On 29 March 2001 an autopsy was carried out by the Cypriot authorities. The autopsy found a number of injuries on Ms Rantseva ’ s body and to her internal organs. It concluded that these injuries resulted from her fall and that the fall was the cause of her death. It is not clear when the applicant was informed of the results of the autopsy. According to the applicant, he was not provided with a copy of the autopsy report and it is unclear whether he was informed in any detail of the conclusions of the report, which were briefly summarised in the findings of the subsequent inquest. 36. On 5 August 2001 the applicant visited Limassol Police Station together with a lawyer and spoke to the police officer who had received Ms Rantseva and M.A. on 28 March 2001. The applicant asked to attend the inquest. According to a later statement by the police officer, dated 8 July 2002, the applicant was told by the police during the visit that his lawyer would be informed of the date of the inquest hearing before the District Court of Limassol. 37. On 10 October 2001 the applicant sent an application to the District Court of Limassol, copied to the General Procurator ’ s Office of the Republic of Cyprus and the Russian Consulate in the Republic of Cyprus. He referred to a request of 8 October 2001 of the Procurator ’ s Office of the Chelyabinsk region concerning legal assistance (see paragraph 48 below) and asked to exercise his right to familiarise himself with the materials of the case before the inquest hearing, to be present at the hearing and to be notified in due time of the date of the hearing. He also advised that he wished to present additional documents to the court in due course. 38. The inquest proceedings were fixed for 30 October 2001 and, according to the police officer ’ s statement of 8 July 2002 (see paragraph 36 above), the applicant ’ s lawyer was promptly informed. However, neither she nor the applicant appeared before the District Court. The case was adjourned to 11 December 2001 and an order was made that the Russian Embassy be notified of the new date so as to inform the applicant. 39. In a facsimile dated 20 October 2001 and sent on 31 October 2001 to the District Court of Limassol, copied to the General Procurator ’ s Office of the Republic of Cyprus and the Russian Consulate in the Republic of Cyprus, the applicant asked for information regarding the inquest date to be sent to his new place of residence. 40. On 11 December 2001 the applicant did not appear before the District Court and the inquest was adjourned until 27 December 2001. 41. On 27 December 2001 the inquest took place before the Limassol District Court in the absence of the applicant. The court ’ s verdict of the same date stated, inter alia (translation) : “At around 6.30 a.m. on [28 March 2001] the deceased, in an attempt to escape from the afore-mentioned apartment and in strange circumstances, jumped into the void as a result of which she was fatally injured ... My verdict is that MS OXANA RANTSEVA died on 28 March 2001, in circumstances resembling an accident, in an attempt to escape from the apartment in which she was a guest ( εφιλοξενείτο ). There is no evidence before me that suggests criminal liability of a third person for her death”. D. Subsequent proceedings in Cyprus and Russia 42. Ms Rantseva ’ s body was transferred to Russia on 8 April 2001. 43. On 9 April 2001 the applicant requested the Chelyabinsk Regional Bureau of Medical Examinations (“the Chelyabinsk Bureau”) to perform an autopsy of the body. He further requested the Federal Security Service of the Russian Federation and the General Prosecutor ’ s Office to investigate Ms Rantseva ’ s death in Cyprus. On 10 May 2001 the Chelyabinsk Bureau issued its report on the autopsy. 44. In particular the following was reported in the forensic diagnosis (translation provided) : “It is a trauma from falling down from a large height, the falling on a plane of various levels, politrauma of the body, open cranial trauma: multiple fragmentary comminuted fracture of the facial and brain skull, multiple breeches of the brain membrane on the side of the brain vault and the base of the skull in the front brain pit, haemorrhages under the soft brain membranes, haemorrhages into the soft tissues, multiple bruises, large bruises and wounds on the skin, expressed deformation of the head in the front-to-back direction, closed dull trauma of the thorax with injuries of the thorax organs ..., contusion of the lungs along the back surface, fracture of the spine in the thorax section with the complete breach of the marrow and its displacement along and across ... Alcohol intoxication of the medium degree: the presence of ethyl alcohol in the blood 1,8%, in the urine -2,5%. ” 45. The report ’ s conclusions included the following: “The color and the look of bruises, breaches and wounds as well as hemorrhages with the morphological changes of the same type in the injured tissues indicates, without any doubt, that the traumas happened while she was alive, as well as the fact, that they happened not very long before death, within a very short time period, one after another. During the forensic examination of the corpse of Rantseva O. N. no injuries resulting from external violence, connected with the use of various firearms, various sharp objects and weapons, influence of physical and chemical reagents or natural factors have been established. ... During the forensic chemical examination of the blood and urine, internal organs of the corpse no narcotic, strong or toxic substances are found. Said circumstances exclude the possibility of the death of Rantseva O.N. from firearms, cold steel, physical, chemical and natural factors as well as poisoning and diseases of various organs and systems. ... Considering the location of the injuries, their morphological peculiarities, as well as certain differences, discovered during the morphological and histological analysis and the response of the injured tissues we believe that in this particular case a trauma from falling down from the great height took place, and it was the result of the so-called staged/bi-moment fall on the planes of various levels during which the primary contact of the body with an obstacle in the final phase of the fall from the great height was by the back surface of the body with a possible sliding and secondary contact by the front surface of the body, mainly the face with the expressed deformation of the head in the front-to-back direction due to shock- compressive impact ... During the forensic chemical examination of the corpse of Rantseva O.N. in her blood and urine we found ethyl spirits 1,8 and 2,5 correspondingly, which during her life might correspond to medium alcohol intoxication which is clinically characterized by a considerable emotional instability, breaches in mentality and orientation in space in time. ” 46. On 9 August 2001 the Russian Embassy in Cyprus requested from the chief of Limassol police station copies of the investigation files relating to Ms Rantseva ’ s death. 47. On 13 September 2001 the applicant applied to the Public Prosecutor of the Chelyabinsk region requesting the Prosecutor to apply on his behalf to the Public Prosecutor of Cyprus for legal assistance free of charge as well as an exemption from court expenses for additional investigation into the death of his daughter on the territory of Cyprus. 48. By letter dated 11 December 2001 the Deputy General Prosecutor of the Russian Federation advised the Minister of Justice of the Republic of Cyprus that the Public Prosecutor ’ s Office of the Chelyabinsk region had conducted an examination in respect of Ms Rantseva ’ s death, including a forensic medical examination. He forwarded a request, dated 8 October 2001, under the European Convention on Mutual Assistance in Criminal Matters (“ the Mutual Assistance Convention” – see paragraphs 175 to 178 below ) and the Treaty between the USSR and the Republic of Cyprus on Civil and Criminal Matters 1984 (“the Legal Assistance Treaty ” – see paragraphs 179 to 185 below ), for legal assistance for the purposes of establishing all the circumstances of Ms Rantseva ’ s death and bringing to justice guilty parties, under Cypriot legislation. The request included the findings of the Russian authorities as to the background circumstances; it is not clear how the findings were reached and what, if any, investigation was conducted independently by the Russian authorities. 49. The findings stated, inter alia, as follows (translation provided) : “The police officers refused to arrest Rantseva O.N. due to her right to stay on the territory of Cyprus without the right to work for 14 days, i.e. until April 2, 2001. Then Mr [M.A.] suggested to detain Rantseva O.N. till the morning as a drunken person. He was refused, since, following the explanations provided by the police officers Rantseva O.N. looked like a sober person, behaved decently, was calm, was laying make-up. M.A., together with an unestablished person, at 5.30 a.m. on March 28, 2001 took Rantseva O.N. from the regional police precinct and brought her to the apartment of [D.P.] ... where [they] organised a meal, and then, at 6.30 a. m. locked Rantseva O.N. in a room of the attic of the 7 th floor of said house. ” 50. The request highlighted the conclusion of the experts at the Chelyabinsk Bureau of Forensic Medicine that there had been two stages in Ms Rantseva ’ s fall, first on her back and then on her front. The request noted that this conclusion contradicted the findings made in the Cypriot forensic examination that Ms Rantseva ’ s death had resulted from a fall face-down. It further noted: “It is possible to suppose, that at the moment of her falling down the victim could cry from horror. However, it contradicts the materials of the investigation, which contain the evidence of an inhabitant of the 2 nd floor of this row of loggias, saying that a silent body fell down on the asphalt ... ” 51. The report concluded: “Judging by the report of the investigator to Mr Rantsev N.M., the investigation ends with the conclusion that the death of Rantseva O.N. took place under strange and un- established circumstances, demanding additional investigation.” 52. The Prosecutor of the Chelyabinsk region therefore requested, in accordance with the Legal Assistance Treaty, that further investigation be carried out into the circumstances of Ms Rantseva ’ s death in order to identify the cause of death and eliminate the contradictions in the available evidence; that persons having any information concerning the circumstances of the death be identified and interviewed; that the conduct of the various parties be considered from the perspective of bringing murder and/or kidnapping and unlawful deprivation of freedom charges, and in particular that M.A. be investigated; that the applicant be informed of the materials of the investigation; that the Russian authorities be provided with a copy of the final decisions of judicial authorities as regards Ms Rantseva ’ s death; and that the applicant be granted legal assistance free of charge and be exempted from paying court expenses. 53. On 27 December 2001 the Russian Federation wrote to the Cypriot Ministry of Justice requesting, on behalf of the applicant, that criminal proceedings be instituted in respect of Ms Rantseva ’ s death, that the applicant be joined as a victim in the proceedings and that he be granted free legal assistance. 54. On 16 April 2002 the Russian Embassy in Cyprus conveyed to the Cypriot Ministry of Justice and Public Order the requests dated 11 December and 27 December 2001 of the General Prosecutor ’ s Office of the Russian Federation, made under the Legal Assistance Treaty, for legal assistance concerning Ms Rantseva ’ s death. 55. On 25 April 2002 the Office of the Prosecutor General of the Russian Federation reiterated its request for the institution of criminal proceedings in connection with Ms Rantseva ’ s death and the applicant ’ s request to be added as a victim to the proceedings in order to submit his further evidence, as well as his request for legal aid. It requested the Cypriot Government to provide an update and advise of any decisions that had been taken. 56. On 25 November 2002, the applicant applied to the Russian authorities to be recognised as a victim in the proceedings concerning his daughter ’ s death and reiterated his request for legal assistance. The request was forwarded by the Office of the Prosecutor General of the Russian Federation to the Cypriot Ministry of Justice. 57. By letter of 27 December 2002 the Assistant to the Prosecutor General of the Russian Federation wrote to the Cypriot Ministry of Justice referring to the detailed request made by the applicant for the initiation of criminal proceedings in connection with the death of his daughter and for legal aid in Cyprus, which had previously been forwarded to the Cypriot authorities pursuant to the Mutual Assistance Convention and the Legal Assistance Treaty. The letter noted that no information had been received and requested that a response be provided. 58. On 13 January 2003 the Russian Embassy wrote to the Cypriot Ministry of Foreign Affairs requesting an expedited response to its request for legal assistance in respect of Ms Rantseva ’ s death. 59. By letters of 17 and 31 January 2003 the Office of the Prosecutor General of the Russian Federation noted that it had received no response from the Cypriot authorities in relation to its requests for legal assistance, the contents of which it repeated. 60. On 4 March 2003 the Cypriot Ministry of Justice informed the Prosecutor General of the Russian Federation that its request had been duly executed by the Cypriot police. A letter from the Chief of Police, and the police report of 8 July 2002 recording the applicant ’ s visit to Limassol Police Station in August 2001 were enclosed. 61. On 19 May 2003 the Russian Embassy wrote to the Cypriot Ministry of Foreign Affairs requesting an expedited response to its request for legal assistance in respect of Ms Rantseva ’ s death. 62. On 5 June 2003 the Office of the Prosecutor General of the Russian Federation submitted a further request pursuant to the Legal Assistance Treaty. It requested that a further investigation be conducted into the circumstances of Ms Rantseva ’ s death as the verdict of 27 December 2001 was unsatisfactory. In particular, it noted that despite the strange circumstances of the incident and the acknowledgment that Ms Rantseva was trying to escape from the flat where she was held, the verdict did not make any reference to the inconsistent testimonies of the relevant witnesses or contain any detailed description of the findings of the autopsy carried out by the Cypriot authorities. 63. On 8 July 2003 the Russian Embassy wrote to the Cypriot Ministry of Foreign Affairs requesting a reply to its previous requests as a matter of urgency. 64. On 4 December 2003 the Commissioner for Human Rights of the Russian Federation forwarded the applicant ’ s complaint about the inadequate reply from the Cypriot authorities to the Cypriot Ombudsman. 65. On 17 December 2003, in reply to the Russian authorities ’ request (see paragraph 52 above), the Cypriot Ministry of Justice forwarded to the Prosecutor General of the Russian Federation a further report prepared by the Cypriot police and dated 17 November 2003. The report was prepared by one of the officers who had attended the scene on 28 March 2001 and provided brief responses to the questions posed by the Russian authorities. The report reiterated that witnesses had been interviewed and statements taken. It emphasised that all the evidence was taken into consideration by the inquest. It continued as follows (translation) : “At about 6.30 a.m. on 28 March 200 1 the deceased went out onto the balcony of her room through the balcony door, climbed down to the balcony of the first floor of the apartment with the assistance of a bedspread which she tied to the protective railing of the balcony. She carried on her shoulder her personal bag. From that point, she clung to the aluminium protective railing of the balcony so as to climb down to the balcony of the apartment on the floor below in order to escape. Under unknown circumstances, she fell into the street, as a result of which she was fatally injured.” 66. The report observed that it was not known why Ms Rantseva left the apartment on 19 March 2001 but on the basis of the investigation (translation): “ ... it is concluded that the deceased did not want to be expelled from Cyprus and because her employer was at the entrance of the flat where she was a guest, she decided to take the risk of trying to climb over the balcony, as a result of which she fell to the ground and died instantaneously.” 67. As to the criticism of the Cypriot autopsy and alleged inconsistencies in the forensic evidence between the Cypriot and Russian authorities, the report advised that these remarks had been forwarded to the Cypriot forensic examiner who had carried out the autopsy. His response was that his own conclusions were sufficient and that no supplementary information was required. Finally, the report reiterated that the inquest had concluded that there was no indication of any criminal liability for Ms Rantseva ’ s death. 68. By letter of 17 August 2005 the Russian Ambassador to Cyprus requested further information about a hearing concerning the case apparently scheduled for 14 October 2005 and reiterated the applicant ’ s request for free legal assistance. The Cypriot Ministry of Justice responded by facsimile of 21 September 2005 indicating that Limassol District Court had been unable to find any reference to a hearing in the case fixed for 14 October 2005 and requesting clarification from the Russian authorities. 69. On 28 October 2005 the applicant asked the Russian authorities to obtain testimonies from two young Russian women, now resident in Russia, who had been working with Ms Rantseva at the cabaret in Limassol and could testify about sexual exploitation taking place there. He reiterated his request on 11 November 2005. The Russian authorities replied that they could only obtain such testimonies upon receipt of a request by the Cypriot authorities. 70. By letter of 22 December 2005 the Office of the Prosecutor General of the Russian Federation wrote to the Cypriot Ministry of Justice seeking an update on the new inquest into Ms Rantseva ’ s death and requesting information on how to appeal Cypriot court decisions. The letter indicated that, according to information available, the hearing set for 14 October 2005 had been suspended due to the absence of evidence from the Russian nationals who had worked in the cabaret with Ms Rantseva. The letter concluded with an undertaking to assist in any request for legal assistance by Cyprus aimed at the collection of further evidence. 71. In January 2006, according to the applicant, the Attorney-General of Cyprus confirmed to the applicant ’ s lawyer that he was willing to order the re-opening of the investigation upon receipt of further evidence showing any criminal activity. 72. On 26 January 2006 the Russian Embassy wrote to the Cypriot Ministry of Justice requesting an update on the suspended hearing of 14 October 2005. The Ministry of Justice replied by facsimile on 30 January 2006 confirming that neither the District Court of Limassol nor the Supreme Court of Cyprus had any record of such a hearing and requesting further clarification of the details of the alleged hearing. 73. On 11 April 2006 the Office of the Prosecutor General of the Russian Federation wrote to the Cypriot Ministry of Justice requesting an update on the suspended hearing and reiterating its query regarding the appeals procedure in Cyprus. 74. On 14 April 2006, by letter to the Russian authorities, the Attorney-General of Cyprus advised that he saw no reason to request the Russian authorities to obtain the testimonies of the two Russian citizens identified by the applicant. If the said persons were in the Republic of Cyprus their testimonies could be obtained by the Cypriot police and if they were in Russia, the Russian authorities did not need the consent of the Cypriot authorities to obtain their statements. 75. On 26 April 2006 the Cypriot Ministry of Justice replied to the Office of the Prosecutor General of the Russian Federation reiterating its request for more information about the alleged suspended hearing. 76. On 17 June 2006 the Office of the Prosecutor General of the Russian Federation wrote to the Attorney - General of Cyprus reminding him of the outstanding requests for renewal of investigations into Ms Rantseva ’ s death and for information on the progress of judicial proceedings. 77. On 22 June and 15 August 2006 the applicant reiterated his request to the Russian authorities that statements be taken from the two Russian women. 78. On 17 October 2006 the Cypriot Ministry of Justice confirmed to the Office of the Prosecutor General of the Russian Federation that the inquest into Ms Rantseva ’ s death was completed on 27 December 2001 and that it found that her death was the result of an accident. The letter noted: “No appeal was filed against the decision, because of the lack of additional evidence”. 79. On 25 October 2006, 27 October 2006, 3 October 2007 and 6 November 2007 the applicant reiterated his request to the Russian authorities that statements be taken from the two Russian women. II. REPORTS ON THE SITUATION OF “ ARTISTES ” IN CYPRUS A. Ex Officio report of the Cypriot Ombudsman on the regime regarding entry and employment of alien women as artistes in entertainment places in Cyprus, 24 November 2003 80. In November 2003, the Cypriot Ombudsman published a report on “ artistes ” in Cyprus. In her introduction, she explained the reasons for her report as follows (all quotes are from a translation of the report provided by the Cypriot Government) : “Given the circumstances under which [ Oxana ] Rantseva had lost her life and in the light of similar cases which have been brought into publicity regarding violence or demises of alien women who arrives in Cyprus to work as ‘ artistes ’, I have decided to undertake an ex officio investigation ... ” 81. As to the particular facts of Ms Rantseva ’ s case, she noted the following: “After formal immigration procedures, she started working on 16 March 2001. Three days later she abandoned the cabaret and the place where she had been staying for reasons which have never been clarified. The employer reported the fact to the Aliens and Immigration Department in Limassol. However, [ Oxana ] Rantseva ’ s name was not inserted on the list comprising people wanted by the Police, for unknown reasons, as well.” 82. She further noted that: “The reason for which [ Oxana ] Rantseva was surrendered by the police to her employer, instead of setting her free, since there were [neither] arrest warrant [nor] expulsion decree against her, remained unknown.” 83. The Ombudsman ’ s report considered the history of the employment of young foreign women as cabaret artistes, noting that the word “artiste” in Cyprus has become synonymous with “prostitute”. Her report explained that since the mid- 1970s, thousands of young women had legally entered Cyprus to work as artistes but had in fact worked as prostitutes in one of the many cabarets in Cyprus. Since the beginning of the 1980s, efforts had been made by the authorities to introduce a stricter regime in order to guarantee effective immigration monitoring and to limit the “well-known and commonly acknowledged phenomenon of women who arrived in Cyprus to work as artistes”. However, a number of the measures proposed had not been implemented due to objections from cabaret managers and artistic agents. 84. The Ombudsman ’ s report noted that in the 1990s, the prostitution market in Cyprus started to be served by women coming mainly from former States of the Soviet Union. She concluded that : “During the same period, one could observe a certain improvement regarding the implementation of those measures and the policy being adopted. However, there was not improvement regarding sexual exploitation, trafficking and mobility of women under a regime of modern slavery. ” 85. As regards the living and working conditions of artistes, the report stated : “The majority of the women entering the country to work as artistes come from poor families of the post socialist countries. Most of them are educated ... Few are the real artistes. Usually they are aware that they will be compelled to prostitute themselves. However, they do not always know about the working conditions under which they will exercise this job. There are also cases of alien women who come to Cyprus, having the impression that they will work as waitresses or dancers and that they will only have drinks with clients ( ‘ consomation ’ ). They are made by force and threats to comply with the real terms of their work ... Alien women who do not succumb to this pressure are forced by their employers to appear at the District Aliens and Immigration Branch to declare their wish to terminate their contract and to leave Cyprus on ostensible grounds ... Consequently, the employers can replace them quickly with other artistes ... The alien artistes from the moment of their entry into the Republic of Cyprus to their departure are under constant surveillance and guard of their employers. After finishing their work, they are not allowed to go wherever they want. There are serious complaints even about cases of artistes who remain locked in their residence place. Moreover, their passports and other personal documents are retained by their employers or artistic agents. Those who refuse to obey are punished by means of violence or by being imposed fees which usually consist in deducting percentages of drinks, ‘ consommation ’ or commercial sex. Of course these amounts are included in the contracts signed by the artistes. ... Generally, artistes stay at one or zero star hotels, flats or guest-houses situated near or above the cabarets, whose owners are the artistic agents or the cabaret owners. These places are constantly guarded. Three or four women sleep in each room. According to reports given by the Police, many of these buildings are inappropriate and lack sufficient sanitation facilities. ... Finally, it is noted that at the point of their arrival in Cyprus alien artistes are charged with debts, for instance with traveling expenses, commissions deducted by the artistic agent who brought them in Cyprus or with commissions deducted by the agent who located them in their country etc. Therefore, they are obliged to work under whichever conditions to pay off at least their debts.” ( footnotes omitted) 86. Concerning the recruitment of women in their countries of origin, the report noted : “Locating women who come to work in Cyprus is usually undertaken by local artistic agents in cooperation with their homologues in different countries and arrangements are made between both of them. After having worked for six months maximum in Cyprus, a number of these artistes are sent to Lebanon, Syria, Greece or Germany .” ( footnotes omitted) 87. The Ombudsman observed that the police received few complaints from trafficking victims: “The police explain that the small number of complaints filed is due to the fear that artistes feel, since they receive threats against their lives on the part of their procurer. ” 88. She further noted that protection measures for victims who had filed complaints were insufficient. Although they were permitted to work elsewhere, they were required to continue working in similar employment. They could therefore be easily located by their former employers. 89. The Ombudsman concluded: “The phenomenon of trafficking in person has so tremendously grown worldwide. Trafficking in persons concerns not only sexual exploitation of others but also exploitation of their employment under conditions of slavery and servitude ... From the data of this report it is observed that over the last two decades Cyprus has not been only a destination country but a transit country where women are systematically promoted to the prostitution market. It follows also that this is also due to a great extent to the tolerance on the part of the immigration authorities, which are fully aware of what really happens. On the basis of the policy followed as for the issue of entry and employment permits to entertainment and show places, thousands of alien women, with no safety valve, have entered by law the country to work as artistes unlawfully. In various forms of pressure and coercion most of these women are forced by their employers to prostitution under cruel conditions, which infringe upon the fundamental human rights, such as individual freedom and human dignity.” ( footnotes omitted) 90. Although she considered the existing legislative framework to combat trafficking and sexual exploitation satisfactory, she noted that no practical measures had been taken to implement the policies outlined, observing that: “ ... The various departments and services dealing with this problem, are often unaware of the matter and have not been properly trained or ignore those obligations enshrined in the Law ... ” B. Extracts of report of 12 February 2004 by the Council of Europe Commissioner for Human Rights on his visit to Cyprus in June 2003 (CommDH(2004)2) 91. The Council of Europe Commissioner for Human Rights visited Cyprus in June 2003 and in his subsequent report of 12 February 2004, he referred to issues in Cyprus regarding trafficking of women. The report noted, inter alia, that : “ 29. It is not at all difficult to understand how Cyprus, given its remarkable economic and tourist development, has come to be a major destination for this traffic in the Eastern Mediterranean region. The absence of an immigration policy and the legislative shortcomings in that respect have merely encouraged the phenomenon. ” 92. As regards the legal framework in place in Cyprus (see paragraphs 127 to 131 below), the Commissioner observed: “ 30. The authorities have responded at the normative level. The Act of 2000 (number 3(I), 2000) has established a suitable framework for suppression of trafficking in human beings and sexual exploitation of children. Under the Act, any action identifiable as trafficking in human beings in the light of the Convention for the Suppression of Trafficking in Persons and of the Exploitation and Prostitution of Others, together with other acts of a similar nature specified by law, are an offence punishable by 10 years ’ imprisonment, the penalty being increased to 15 years where the victim is under 18 years of age. The offence of sexual exploitation carries a 15 year prison sentence. If committed by persons in the victim ’ s entourage or persons wielding authority or influence over the victim, the penalty is 20 years in prison. According to the provisions of Article 4, using children for the production and sale of pornographic material is an offence. Article 7 grants State aid, within reasonable limits, to victims of exploitation; such aid comprises subsistence allowance, temporary accommodation, medical care and psychiatric support. Article 8 reaffirms the right to redress by stressing the power of the court to award punitive damages justified by the degree of exploitation or the degree of the accused person ’ s constraint over the victim. A foreign worker lawfully present in Cyprus who is a victim of exploitation can approach the authorities to find other employment up until the expiry of the initial work permit (Article 9). Lastly, the Council of Ministers, under Article 10, appoints a guardian for victims with the principal duties of counselling and assisting them, examining complaints of exploitation, and having the culprits prosecuted, as well as for pinpointing any deficiency or loophole in the law and for making recommendations with a view to their removal. ” 93. Concerning practical measures, the Commissioner noted: “ 31. At a practical level, the Government has made efforts to protect women who have laid a complaint against their employers by permitting them to remain in the country in order to substantiate the charges. In certain cases, the women have remained in Cyprus at government expense during the investigation.” 94. However, he criticised the failure of the authorities to tackle the problem of the excessive number of young foreign women coming to work in Cypriot cabarets: “ 32. However, apart from punitive procedures, preventive control measures could be introduced. By the authorities ’ own admission, the number of young women migrating to Cyprus as nightclub artistes is well out of proportion to the population of the island .” C. Extracts of follow-up report of 26 March 2006 by the Council of Europe Commissioner for Human Rights on the progress made in implementing his recommendations ( CommDH(2006)12) 95. On 26 March 2006, the Council of Europe Commissioner for Human Rights published a follow-up report in which he assessed the progress of the Cypriot Government in implementing the recommendations of his previous report. As regards the issue of trafficking, the report observed that: “48. The Commissioner noted in his 2003 report that the number of young women migrating to Cyprus as nightclub artistes was well out of proportion to the population of the island, and that the authorities should consider introducing preventive control measures to deal with this phenomenon, in conjunction with legislative safeguards. In particular, the Commissioner recommended that the authorities adopt and implement a plan of action against trafficking in human beings.” 96. The report continued: “ 49. The so called ‘ cabaret artiste ’ visas are in fact permits to enter and work in nightclubs and bars. These permits are valid for 3 months and can be extended for a further 3 months. The permit is applied for by the establishment owner on behalf of the woman in question. Approximately 4,000 permits are issued each year, with 1,200 women working at a given time and most women originating from Eastern Europe. A special information leaflet has been prepared by the Migration Service and translated into four languages. The leaflet is given to women entering the country on such permits, is also available on the website of the Ministry of the Interior and the Ministry of Foreign Affairs and copies of the leaflet are sent to the consulates in Russia, Bulgaria, the Ukraine and Romania in order for women to be informed before they enter Cyprus. The leaflet sets out the rights of the women and the responsibilities of their employers. The authorities are aware that many of the women who enter Cyprus on these artistes visas will in fact work in prostitution .” 97. The Commissioner ’ s report highlighted recent and pending developments in Cyprus : “ 50. A new Law on Trafficking in Human Beings is currently being discussed. The new law will include other forms of exploitation such as labour trafficking as well as trafficking for sexual exploitation. Cyprus has signed but not ratified the Council of Europe Convention on Action Against Trafficking in Human Beings. 51. The Attorney General ’ s Office has prepared a National Action Plan for the Combating of Human Trafficking. The Action Plan was presented and approved by the Council of Ministers in April 2005. Some NGOs complained of their lack of involvement in the consultation process. The Ministry of the Interior is responsible for the implementation of the Action Plan. According to the Action Plan, women involved in cases of sexual exploitation or procuring are not arrested or charged with any offence, but are considered as victims and are under the care of the Ministry of Labour and Social Security. Victims who will act as witnesses in court trials can reside in Cyprus until the end of the case. They have the possibility of working, or if they do not wish to work, the Ministry will cover all their residential, health and other needs. A special procedures manual has been drafted for the treatment of victims of trafficking, and has been circulated to all ministries and government departments, as well as NGOs for consultation. 52. There is no specific shelter for victims of trafficking at present, although victims may be accommodated by the authorities in two rooms in state-owned retirement homes, which are available in each major town. A shelter in Limassol is due to be opened soon, which will provide accommodation for 15 women, as well as providing the services of a social worker, lawyer, and vocational advisor. ” 98. As regards steps taken to improve information collection and research into trafficking, he noted: “ 53. An Office for the Prevention and Combating of Human Trafficking was set up by the police in April 2004. The office ’ s role is to collect and evaluate intelligence regarding trafficking in human beings, to co-ordinate operations of all police divisions and departments, to organise and participate in operations, and to follow-up on cases that are under investigation, pending trial or presented to the courts. The office also prepares reports on trafficking and investigates child pornography on the Internet. In addition, the office organises educational seminars carried out at the Cyprus Police Academy. 54. According to statistical information provided by the police from 2000 to 2005, there is a clear increase in the number of cases reported concerning offences of sexual exploitation, procuring, and living on the earnings of prostitution, etc. NGOs confirm that awareness about issues relating to trafficking has increased. ” 99. Finally, in respect of preventative measures, the Commissioner highlighted recent positive developments: “ 55. Preventive and suppressive measures are also undertaken by the police, such as raids in cabarets, inspections, interviews with women, co-operation with mass media, and control of advertisements found in different newspapers. The police provide an anonymous toll-free hotline where anybody can call to seek help or give information. Cabarets which are under investigation are put on a black list and are unable to apply for new visas. 56. Some efforts have been made by the Cypriot authorities to improve victim identification and referral, and in particular, 150 police officers have been trained on this issue. However, according to NGOs a culture still prevails in which women are seen by the police to have ‘ consented ’ to their predicament and victim identification remains inadequate .” 100. The report reached the following conclusions: “ 57. Trafficking in human beings is one of the most pressing and complex Human Rights issues faced by Council of Europe member states, including Cyprus. There is obviously a risk that the young women who enter Cyprus on artiste visas may be victims of trafficking in human beings or later become victims of abuse or coercion. These women are officially recruited as cabaret dancers but are nevertheless often expected also to work as prostitutes. They are usually from countries with inferior income levels to those in Cyprus and may find themselves in a vulnerable position to refuse demands from their employers or clients. The system itself, whereby the establishment owner applies for the permit on behalf of the woman, often renders the woman dependent on her employer or agent, and increases the risk of her falling into the hands of trafficking networks. 58. The Commissioner urges the Cypriot authorities to be especially vigilant about monitoring the situation and ensuring that the system of artiste visas is not used for facilitating trafficking or forced prostitution. In this context, the Commissioner recalls the exemplary reaction of the Luxembourg authorities to similar concerns expressed in his report on the country and their withdrawal of the cabaret artiste visa regime. Changes to the current practice might, at the very least, include women having to apply for the visa themselves, and the information leaflet being given to the women, if possible, before they enter the country. 59. The Commissioner welcomes the new National Action Plan for the Combating of Human Trafficking as a first step in addressing this issue and encourages the Ministry of the Interior to ensure its full implementation. The new law on trafficking, once enacted, will also play an important role. The variety of police activities in response to this phenomenon, such as the setting up of the Office for the Prevention and Combating of Human Trafficking, should also be welcomed. 60. In order to respect the human rights of trafficked persons, the authorities need to be able to identify victims and refer them to specialised agencies which can offer shelter and protection, as well as support services. The Commissioner urges the Cypriot authorities to continue with the training of police officers in victim identification and referral, and encourages the authorities to include women police officers in this area. More effective partnerships with NGOs and other civil society actors should also be developed. The Commissioner expresses his hope that the shelter in Limassol will be put into operation as soon as possible. ” D. Extracts of report of 12 December 2008 by the Council of Europe Commissioner for Human Rights on his visit to Cyprus on 7 ‑ 10 July 200 8 (CommDH(200 8 ) 36 ) 101. The Commissioner of Human Rights has recently published a further report following a visit to Cyprus in July 2008. The report comments on the developments in respect of issues relating to trafficking of human beings, emphasising at the outset that trafficking of women for exploitation was a major problem in many European countries, including Cyprus. The report continued as follows: “33. Already in 2003, the Commissioner for Administration (Ombudswoman) stated that Cyprus had been associated with trafficking both as a country of destination and transit, the majority of women being blackmailed and forced to provide sexual services. In 2008, the island still is a destination country for a large number of women trafficked from the Philippines, Russia, Moldova, Hungary, Ukraine, Greece, Vietnam, Uzbekistan and the Dominican Republic for the purpose of commercial sexual exploitation ... Women are reportedly denied part or all of their salaries, forced to surrender their passports, and pressed into providing sexual services for clients. Most of these women are unable to move freely, are forced to work far above normal working hours, and live in desperate conditions, isolated and under strict surveillance. 34. Victims of trafficking are recruited to Cyprus mainly on three-month so-called ‘ artiste ’ or ‘ entertainment ’ visas to work in the cabaret industry including night clubs and bars or on tourist visas to work in massage parlours disguised as private apartments ... The permit is sought by the owner of the establishment, in most cases so - called ‘ cabarets ’, for the women in question. 35. The study conducted by the Mediterranean Institute of Gender Studies (MIGS) led to a report on trafficking in human beings published in October 2007. It shows that an estimated 2 000 foreign women enter the island every year with short term ‘ artiste ’ or ‘ entertainment ’ work permits. Over the 20-year period 1982-2002, there was a dramatic increase of 111% in the number of cabarets operating on the island ... 36. During his visit the Commissioner learned that there are now approximately 120 cabaret establishments in the Republic of Cyprus, each of them employing around 10 to 15 women ... ” (footnotes omitted) 102. The Commissioner noted that the Government had passed comprehensive anti-trafficking legislation criminalising all forms of trafficking, prescribing up to 20 years ’ imprisonment for sexual exploitation and providing for protection and support measures for victims (see paragraphs 127 to 131 below). He also visited the new government-run shelter in operation since November 2007 and was impressed by the facility and the commitment shown by staff. As regards allegations of corruption in the police force, and the report noted as follows: “42. The Commissioner was assured that allegations of trafficking-related corruption within the police force were isolated cases. The authorities informed the Commissioner that so far, three disciplinary cases involving human trafficking/prostitution have been investigated: one resulted in an acquittal and two are still under investigation. In addition, in 2006, a member of the police force was sentenced to 14 months imprisonment and was subsequently dismissed from service following trafficking related charges.” 103. The report drew the following conclusions in respect of the artiste permit regime in Cyprus : “ 45. The Commissioner reiterates that trafficking in women for the purposes of sexual exploitation is a pressing and complex human rights issues faced by a number of Council of Europe member States, including Cyprus. A paradox certainly exists that while the Cypriot government has made legislative efforts to fight trafficking in human beings and expressed its willingness through their National Action Plan 2005, it continues to issue work permits for so-called cabaret artistes and licences for the cabaret establishments. While on paper the permits are issued to those women who will engage in some type of artistic performance, the reality is that many, if not most, of these women are expected to work as prostitutes. 46. The existence of the ‘ artiste ’ work permit leads to a situation which makes it very difficult for law enforcement authorities to prove coercion and trafficking and effectively combat it. This type of permit could thus be perceived as contradicting the measures taken against trafficking or at least as rendering them ineffective. 47. For these reasons, the Commissioner regrets that the ‘ artiste ’ work permit is still in place today despite the fact that the government has previously expressed its commitment to abolish it. It seems that the special information leaflet given to women entering the country on such a permit is of little effect, even though the woman needs to have read and signed the leaflet in the presence of an official. 48. The Commissioner calls upon the Cypriot authorities to abolish the current scheme of cabaret ‘ artistes ’ work permits ... ” 104. The Commissioner also reiterated the importance of a well-trained and motivated police force in the fight against trafficking in human beings and encouraged the authorities to ensure adequate and timely victim identification. E. Trafficking in Persons Report, U. S. State Department, June 2008 105. In its 2008 report on trafficking, the U. S. State Department noted that: “Cyprus is a destination country for a large number of women trafficked from the Philippines, Russia, Moldova, Hungary, Ukraine, Greece, Vietnam, Uzbekistan, and the Dominican Republic for the purpose of commercial sexual exploitation ... Most victims of trafficking are fraudulently recruited to Cyprus on three-month ‘ artiste ’ work permits to work in the cabaret industry or on tourist visas to work in massage parlors disguised as private apartments.” 106. The report found that Cyprus had failed to provide evidence that it had increased its efforts to combat severe forms of trafficking in persons from the previous year. 107. The report recommended that the Cypriot Government: “Follow through with plans to abolish, or greatly restrict use of the artiste work permit—a well-known conduit for trafficking; establish standard operating procedures to protect and assist victims in its new trafficking shelter; develop and launch a comprehensive demand reduction campaign specifically aimed at clients and the larger public to reduce wide-spread misconceptions about trafficking and the cabaret industry; dedicate more resources to its anti-trafficking unit; and improve the quality of trafficking prosecutions to secure convictions and appropriate punishments for traffickers.” i. it is done by the use of force, violence or threats; or ii. there is fraud; or iii. it is done through abuse of power or other kind of pressure to such an extent so that the particular person would have no substantial and reasonable choice but to succumb to pressure or ill-treatment; b. the trafficking of adult persons for profit and for sexual exploitation purposes in the circumstances referred to in subsection (a) above; c. the sexual exploitation or the ill-treatment of minors; d. the trafficking of minors for the purpose of their sexual exploitation or ill-treatment .” 128. Section 6 provides that the consent of the victim is not a defence to the offence of trafficking. 129. Under section 5(1), persons found guilty of trafficking adults for the purposes of sexual exploitation may be imprisoned for up to ten years or fined CYP 10,000, or both. In the case of a child, the potential prison sentence is increased to fifteen years and the fine to CYP 15,000. Section 3(2) provides for a greater penalty in certain cases: “For the purposes of this section, blood relationship or relationship by affinity up to the third degree with the victim and any other relation of the victim with the person, who by reason of his position exercises influence and authority over the victim and includes relations with guardian, educators, hostel administration, rehabilitation home, prisons or other similar institutions and other persons holding similar position or capacity that constitutes abuse of power or other kind of coercion : a. a person acting contrary to the provisions of section 1 (a) and (b) commits an offence and upon conviction is liable to imprisonment for fifteen years; b. a person acting contrary to the provisions of section 1 (c) and (d) commits an offence and upon conviction is liable to imprisonment for twenty years. ” 130. Section 7 imposes a duty on the State to protect victims of trafficking by providing them with support, including accommodation, medical care and psychiatric support. 131. Under sections 10 and 11, the Council of Ministers may appoint a “guardian of victims” to advise, counsel, and guide victims of exploitation; to hear and investigate complaints of exploitation; to provide victims with treatment and safe residence; to take the necessary steps to prosecute offenders; to take measures aimed at rehabilitating, re-employing or repatriating victims; and to identify any deficiencies in the law to combat trafficking. Although a custodian was appointed, at the time of the Cypriot Ombudsman ’ s 2003 Report (see paragraphs 80 to 90 above ), the role remained theoretical and no programme to ensure protection of victims had been prepared. B. Russia 1. Jurisdiction under the Russian Criminal Code 132. Articles 11 and 12 of the Criminal Code of the Russian Federation set out the territorial application of Russian criminal law. Article 11 establishes Russian jurisdiction over crimes committed in the territory of the Russian Federation. Article 12 (3) provides for limited jurisdiction in respect of non-Russian nationals who commit crimes outside Russian territory where the crimes run counter to the interests of the Russian Federation and in cases provided for by international agreement. 2. General offences under the Criminal Code 133. Article 105 of the Russian Criminal Code provides that murder shall be punishable with a prison term. 134. Article 125 of the Russian Criminal Code provides that deliberate abandonment and failure to provide assistance to a person in danger is punishable by a fine, community service, corrective labour or a prison term. 135. Articles 12 6 and 12 7 make abduction and illegal deprivation of liberty punishable by prison terms. 3. Trafficking in human beings 136. In December 2003, an amendment was made to the Russian Criminal Code by the insertion of a new Article 127.1 in the following terms: “1. Human beings ’ trafficking, that is, a human being ’ s purchase and sale or his recruiting, transportation, transfer, harbouring or receiving for the purpose of his exploitation ... shall be punishable by deprivation of liberty for a term of up to five years. 2. The same deed committed: a) in respect of two or more persons; ... d) moving the victim across the State Border of the Russian Federation or illegally keeping him abroad; ... f) with application of force or with the threat of applying it; ... shall be punishable by deprivation of liberty for a term from three to 10 years. 3. The deeds provided for by Parts One and Two of this Article: a) which have entailed the victim ’ s death by negligence, the infliction of major damage to the victim ’ s health or other grave consequences; b) committed in a way posing danger to the life or health of many people; c) committed by an organized group – shall be punishable by deprivation of liberty for a term from eight to 15 years.” V. THE CYPRIOT GOVERNMENT ’ S UNILATERAL DECLARATION 186. By letter of 10 April 2009 the Attorney-General of the Republic of Cyprus advised the Court as follows: “Please note that the Government wishes to make a unilateral declaration with a view to resolving the issues raised by the application. By the Unilateral Declaration the Government requests the Court to strike out the application in accordance with Article 37 of the Convention. ” 187. The relevant parts of the appended a unilateral declaration read as follows: “ ... (a) The Government regrets the decision taken by the police officers on 28 March 20 01 not to release the applicant ’ s daughter but to hand her over to [M.A.], from whom she sought to escape. The Government acknowledges that the above decision violated its positive obligation towards the applicant and his daughter arising from Article 2 of the Convention to take preventive measures to protect the applicant ’ s daughter from the criminal acts of another individual. (b) The Government acknowledges that the police investigation in the present case was ineffective as to whether the applicant ’ s daughter was subjected to inhuman or degrading treatment prior to her death. As such the Government acknowledges that it violated the procedural obligation of Article 3 of the Convention in respect of the failure to carry out an adequate and effective investigation as to whether the applicant ’ s daughter was subjected to inhuman or degrading treatment prior to her death. (c) The Government acknowledges that it violated its positive obligations towards the applicant and his daughter arising out of Article 4 of the Convention in that it did not take any measures to ascertain whether the applicant ’ s daughter had been a victim of trafficking in human beings and/or been subjected to sexual or any other kind of exploitation. (d) The Government acknowledges that the treatment of applicant ’ s daughter at the police station on 28 March 2001 in deciding not to release her but to hand her over to [M.A.] although there was not any basis for her deprivation of liberty, was not consistent with Article 5(1) of the Convention. (e) The Government acknowledges that it violated the applicant ’ s right to an effective access to court in failing to establish any real and effective communication between its organs (i.e. the Ministry of Justice and Public Order and the police) and the applicant, regarding the inquest proceedings and any other possible legal remedies that the applicant could resort to. 3. In regard to the above issues, the Government recalls that the Council of Ministers has followed the advice of the Attorney General – Government Agent, and has thus appointed on 5 February 2009 three independent criminal investigators whose mandate is to investigate: (a) The circumstances of death of applicant ’ s daughter and into any criminal responsibility by any person, authority of the Republic, or member of the police concerning her death, (b) the circumstances concerning her employment and stay in Cyprus in conjunction with the possibility of her subjection to inhuman or degrading treatment or punishment and/or trafficking and/or sexual or other exploitation, (by members of the police, authorities of the Republic or third persons) contrary to relevant laws of the Republic applicable at the material time, and (c) into the commission of any other unlawful act against her, (by members of the police, authorities of the Republic or third persons) contrary to relevant laws of the Republic applicable at the material time. 4. The Government recalls that the investigators are independent from the police (the first investigator is the President of the Independent Authority for the Investigation of Allegations and Complaints Against the Police, the second is a Member of the said Authority, and the third is a practicing advocate with experience in criminal law). The Government recalls that the investigators have already commenced their investigation. 5. In these circumstances and having regard to the particular facts of the case the Government is prepared to pay the applicant a global amount of 37,300 (thirty seven thousand and three hundred) EUR ( covering pecuniary and non pecuniary damage and costs and expenses). In its view, this amount would constitute adequate redress and sufficient compensation for the impugned violations, and thus an acceptable sum as to quantum in the present case. If, the Court however considers that the above amount does not constitute adequate redress and sufficient compensation, the Government is ready to pay the applicant by way of just satisfaction such other amount of compensation as is suggested by the Court ... ” | The applicant was the father of a young woman who died in Cyprus, where she had gone to work in March 2001. He argued that the Cypriot police had not done everything possible to protect his daughter from human trafficking while she was still alive or to punish those responsible after her death. He further complained that the Russian authorities had failed to investigate his daughter’s alleged trafficking and subsequent death or to take steps to protect her from the risk of trafficking. |
840 | Searches and seizures carried out at a lawyer’s offices or home | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1959 and lives in Vienna. 6. The applicant is a practising lawyer by profession. He runs his law office with a partner. 7. In 2005 criminal proceedings on suspicion of aggravated theft, aggravated fraud and embezzlement were opened against the applicant and a number of other persons by the Vienna Regional Criminal Court ( Landesgericht für Strafsachen ). 8. On 21 February 2006 the investigating judge issued a search warrant for the applicant’s premises. The warrant authorised the search and seizure of the following items: “Documents, personal computers and discs, savings books, bank documents, deeds of gift and wills in favour of Dr Heinz Robathin, and any files concerning R. [name of one person] and G. [name of another person].” 9. In its reasoning, the search warrant stated that the applicant was suspected firstly of having taken furniture, pictures and silver worth more than 50,000 euros (EUR) from Mr R. in December 2003 for personal enrichment; secondly, of having induced Mr G. to sign an agreement for a secured loan of EUR 150,000 in December 2004, which Mr G. then failed to receive; and thirdly, of having abused the power of attorney granted to him by Mr R. in order to make bank transfers, causing the latter financial damage of more than EUR 50,000 in September 2003. 10. The search of the applicant’s business premises was carried out by police officers of the Federal Ministry of the Interior on 21 February 2006. The applicant, his defence counsel and a representative of the Vienna Bar Association were present. The police officers proceeded to search the applicant’s computer system, copying all files to disc. The representative of the Vienna Bar Association opposed this as being disproportionate since it was technically possible, by using appropriate search criteria, to search for and copy only those files which corresponded to the criteria set out in the search warrant. Having contacted the investigating judge, the police officers insisted on copying all files. On the proposal of the representative of the Vienna Bar Association, the police officers copied all data returned by a search for the names “R.” and “G.” to one disc and all other data to separate discs. All the discs were sealed. 11. The report drawn up by the police officers lists the following seized items: (1) laptop, (2) CDs/DVDs of R./G. data, (3) CDs/DVDs of all Robathin law office data, and (4) copies of agendas. 12. All these items were handed over to the investigating judge. Because the applicant opposed the search of the data, the Review Chamber ( Ratskammer ), a panel of three judges, of the Vienna Regional Criminal Court was called upon to decide whether they were to be examined or returned pursuant to Article 145 § 2 of the Code of Criminal Procedure ( Strafprozeßordnung ). 13. On 3 March 2006 the Review Chamber authorised the examination of all the files. It repeated that there were grounds for suspecting the applicant of the offences described in the search warrant and noted that the data in issue had been seized in the context of the preliminary investigations in respect of the applicant and other persons. A lawyer could not rely on his duty of professional secrecy and the attendant guarantees of Article 152 § 1 of the Code of Criminal Procedure when he himself was the suspect. In sum, the examination of the seized files was necessary in order to investigate the offences. 14. On 23 March 2006 the Vienna Bar Association contacted the Procurator General, suggesting that he lodge a plea of nullity for the preservation of the law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) in the applicant’s case. It submitted, in particular, that a search of a lawyer’s business premises risked impinging on his duty of professional secrecy. 15. Pursuant to Article 139 of the Code of Criminal Procedure, the investigating judge had to give reasons when issuing a search warrant and to describe as clearly as possible which items were to be searched for and seized. In the applicant’s case it was open to doubt whether the search warrant had accurately described which items could be seized. Generally, only a search for particular files likely to be related to the offence in issue could be authorised. The same applied to searches of electronic data. A practising lawyer was obliged by law to have at his disposal a computer system fulfilling certain standards in order to communicate electronically with the courts. In fact, most lawyers also had all their files in electronic form. Standard software for law offices allowed full-text searches for any name or word and thus made it easy to narrow the search of data. In the present case such a search had returned results and thus the search warrant did not extend to the seizure of all of the law office’s data. 16. For these reasons, the Bar Association argued that the seizure of all the data and the Review Chamber’s decision to permit the examination thereof had been excessive and therefore unlawful. The Review Chamber had failed to give any specific reasons why an examination of the data relating to Mr R. and Mr G. would not be sufficient. The applicant’s duty of professional secrecy could only be lifted in relation to the suspicion against him concerning two of his clients but not in respect of all his lawyer-client relationships. Moreover, the partner in his law office was not under any suspicion. 17. By a letter of 12 April 2006 the Procurator General informed the Vienna Bar Association that he had not found any reason to lodge a plea of nullity for the preservation of the law. 18. On 14 May 2009 the Vienna Regional Criminal Court convicted the applicant of embezzlement but acquitted him of the other charges. The court sentenced him to three years’ imprisonment, two of which were suspended on probation. On 22 December 2009 the Supreme Court dismissed the applicant’s and the public prosecutor’s pleas of nullity and on 10 March 2010 the Vienna Court of Appeal upheld the sentence. Subsequently, the applicant obtained evidence which had not been available to him at the time of the trial. He requested a reopening of the proceedings, which was granted and led to the applicant’s acquittal by the Vienna Regional Criminal Court’s judgment of 15 March 2011. | A practising lawyer, the applicant complained about a search carried out in his office and seizure of documents as well as all his electronic data following criminal proceedings brought against him on suspicion of theft, embezzlement and fraud of his clients. He was ultimately acquitted of all charges against him. |
796 | Living conditions in psychiatric institutions or social care homes | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 5. The applicant was born on 21 November 2004 to parents who suffered from a mental disability. He was abandoned at birth and at his grandmother ’ s request he was placed in B. Orphanage at the age of three months. B. Social Welfare Centre was appointed as his guardian. Symptoms of growth delay were detected when he was one year old. According to a diagnosis given when he was two years old, his physical development had stalled and he had a speech disability. On 14 April 2008 a team of doctors from B. Hospital diagnosed that the applicant had been suffering from a moderate mental disability, the most severe ( најтешко ) form of physical disability (cerebral palsy), and a speech disability ( alalia ) since birth. 6. On 8 November 2008 the applicant ’ s guardian placed him in B. Rehabilitation Institute, a State-run institution for people with hearing and speech disabilities. During his stay in the institute, the applicant was diagnosed as suffering from mental, physical and speech disabilities. He was discharged in June 2012 on the basis of findings made by the medical personnel in the institute which concluded that his continued stay and treatment there would not be justified. B. The applicant ’ s placement and treatment in the Rehabilitation Institute B.B.S. 7. On 21 June 2012 the applicant ’ s guardian contacted the Rehabilitation Institute B.B.S. (“the RIBBS”), an open-type State-run institution for physically disabled people with no mental disabilities, asking it to accept the applicant. The competent ministry granted that request. In a reply received by the applicant ’ s guardian on 29 June 2012, the RIBBS stated, inter alia : “The expert panel ... decided unanimously that [the applicant] cannot be placed in our institution, for the following reasons: On the basis of [medical material], it was established that we cannot educate and rehabilitate [the applicant] because he is unable to speak; nor can we communicate with him or understand his needs, because we have no qualified staff to understand and work with him. Our primary activity is accommodating [and] providing care ... to people with severe physical disabilities [who are] mentally fit ...” 8. On the same date (29 June 2012), the applicant ’ s guardian decided that he should be placed in the RIBBS. No appeal against that decision was submitted, notwithstanding the clear instruction on available legal remedies contained in the decision. Such an appeal would not have had suspensive effect, under section 181(3) of the Social Care Act. The guardian also requested that the applicant ’ s state of health be reclassified ( рекатегоризација ). However, the applicant was not transferred to B. Hospital for examination. 9. By a letter of 12 July 2012, the RIBBS notified the applicant ’ s guardian that it had no qualified staff to care for the applicant. It further stated: “All members of staff hold [the applicant] by the hand all the time in order to prevent him from running away. Our institution is an open-type institution, and in accordance with internal rules, we can neither lock him in a room nor apply any other restrictive measure. If we don ’ t hold him by his hand, he runs away ... He could put himself in danger, because beyond the entrance door is a high-speed road ... We draw your attention to this in good faith, in order to find a solution for [the applicant] and avoid things for which we would all be responsible.” 10. The RIBBS ’ records about the applicant stated that his continued stay there would worsen his condition. It was reiterated that its staff could not communicate with him because he was deaf and unable to speak. The applicant had also started injuring himself (biting himself). Whenever possible, he escaped from the institution. It was therefore recommended that he be transferred to a more appropriate institution. In this regard, meetings were held with the applicant ’ s guardian and other competent authorities. The RIBBS also raised the inappropriateness of the applicant ’ s placement with the competent ministry and inspectorate. In a letter of May 2013 the RIBBS told the relevant inspectorate, inter alia, “L.R. was categorised as suffering from the most severe form of physical disability, and he is in fact a schoolboy who is deaf and unable to speak”. 11. On 6 November 2013 the Ombudsman visited the RIBBS, where the applicant was found tied to his bed by his leg. In a special report about the RIBBS of 16 November 2013, the Ombudsman stated: “ 2. Inhuman or degrading treatment of residents in the RIBBS A deaf child who cannot speak was found in the RIBBS, who had been tied [to a bed] for safety reasons; he cannot communicate with members of staff and the staff do not know sign language [so cannot] provide him with adequate care ... Holding that it is inhuman to place people with special disabilities in institutions that are inappropriate for them and have no adequate safeguards [to prevent] those people and other residents [from being] put at risk, ... it has to be established whether the rights of this group of people with special needs were violated. ESTABLISHED FACTS ... Negative events People with special disabilities, for whom there are no adequate safeguards [at the institution], are placed in the RIBBS. The institution cannot provide these people with adequate care, nor does it have qualified staff to work with them. The Ombudsman considers that the inappropriate placement [of these people] constitutes, in itself, inhuman treatment.” 12. In reply to the Ombudsman ’ s request for information, the RIBBS stated that the applicant ’ s placement there had been in contravention of all its internal regulations, a fact which it had brought to the attention of the competent ministries and social welfare centres. 13. Following a request by the applicant ’ s guardian on 4 March 2014, B. Hospital examined the applicant and reached the same findings as those made in its earlier report, namely that he suffered from a moderate mental disability, the most severe form of physical disability (cerebral palsy), and a speech disability ( alalia ) (see paragraph 5 above). 14. On 15 April 2014 the guardian placed the applicant in the S. Rehabilitation Institute, where he is at present. 15. At a press conference on 25 June 2014 the Ombudsman presented its annual report and revealed that the applicant had been placed in the RIBBS and tied to his bed. Following that conference, on 30 June 2014 the HCHR visited the applicant at the S. Rehabilitation Institute. C. HCHR ’ s criminal complaint on behalf of the applicant 16. On 17 July 2014 the HCHR lodged a criminal complaint, accusing the director of the RIBBS and other (unidentified) employees of “torture and other cruel, inhuman or degrading treatment or punishment” and “ill ‑ treatment in the performance of [their] duties”, punishable under Articles 142 and 143 of the Criminal Code (see paragraphs 34 and 35 below). It was alleged that not only had the applicant been tied to the bed by his leg with a rope described as being long enough to enable him to “reach the corridor”, he had also not been provided with adequate care and treatment, which had amounted to complete neglect. Furthermore, the RIBBS had had no qualified personnel to give the applicant treatment which was appropriate for his needs, which had resulted in his health deteriorating. The HCHR submitted several newspaper articles and a copy of the Ombudsman ’ s annual report as evidence. 17. The S. public prosecutor ’ s office obtained a great deal of documentary material from the RIBBS, the Ombudsman and other competent authorities. It also examined the director of the RIBBS (J.G.D.) and four of its employees (V.M., Z.K., N.G. and S.I.). 18. J.G.D. stated, inter alia : “... the RIBBS is an open-type institution ... all residents are easy to communicate with ... I immediately told [the director of B. Social Welfare Centre] that our institution had no qualified staff to treat [the applicant] and that we could not accommodate him ... [it was not just that the applicant] was deaf and unable to speak and that it was impossible to establish communication with him, he was also hyperactive and took every opportunity to leave the institution ... he attempted to jump from the window of his room ... In order to ensure his safety, we removed the handles from the window. I was also informed by employees that he had run away from the institution, so we looked for him in the [nearby] village. I constantly informed the competent authorities about the problems we had with [the applicant] and the fact that our institution was inappropriate and had no qualified staff to care for children like this. All my attempts were futile ... ... [ regarding the Ombudsman ’ s visit] I informed the Ombudsman that [the applicant] created problems owing to his mental health and hyperactivity. For his safety, namely to prevent him from injuring or harming himself when employees were occupied [with other residents], employees were obliged to tie him to the bed for a while with cotton straps ( медицински завој ). When they were finished with their [other] duties, [the applicant] was untied and provided with all the requisite care, like other residents ...” 19. Relevant parts of statements by the RIBBS ’ employees read as follows: “[the applicant] had no visible physical disabilities; on the contrary, he was a very active child ... Owing to his temperament, we avoided leaving him alone without any supervision ... because whenever he was alone, [he] would escape ... I do not think that he was aggressive, but he needed to be under [the RIBBS ’ ] employees ’ constant supervision. For those reasons, at night we tied him lightly to his bed with cotton straps ( памучен завој ). We did that strictly for safety reasons, to prevent him from escaping ... I tied [the applicant] to his bed at night, but I did not do it in order to ill ‑ treat him, [I did it] to protect him from harming himself by leaving the institution, where he would be exposed to danger ...” (Statement of V.M.) “... [ the applicant] was ... a hyperactive child ... at night we tied him to the bed on which he was sleeping for safety reasons only ... if we didn ’ t secure him, there was a risk that he would escape and go out of the institution onto the street, where there were people, animals and traffic that could put him in danger. That was particularly necessary after 8 p.m., during the night shift, when there were only two members of staff for sixty to seventy residents ... I know that during the day, usually during the midday break, not only I, but also other members of staff would tie [the applicant] to his bed for safety reasons ... All [the RIBBS] employees knew that, the director included, but I think that that was the only way to ensure [the applicant ’ s] safety. Our institution is an open-type institution: doors are open; windows have no bars. Given the lack of staff, ... the only way to prevent [the applicant] from harming himself or exposing himself to risk while we were occupied with other things was to tie him up during certain parts of the day ...” (Statement of Z.K.) “... despite the fact that, according to medical reports, [the applicant] was regarded as suffering from the most severe form of physical disability, [he had] no visible physical disabilities when he was admitted to the institution. [The applicant] walked without any problems; he ran, so I can say that he was hyperactive and constantly moving ... I consider that the RIBBS is not [an] appropriate [place] to accommodate a child with such disabilities, because our institution does not have [suitably] qualified staff ...” (Statement of N.G.) 20. On 24 November 2014 the S. (first-instance) public prosecutor ’ s office notified, under section 288 of the Criminal Proceedings Act (see paragraph 33 below), the HCHR that by a decision of the same date it had rejected the criminal complaint against those accused of crimes, namely the director of B. Social Welfare Centre, the director of the RIBBS and five carers from the RIBBS (V.M., Z.K., V.B., P.M. and K.D., all identified by their full names). The decision found that their actions had not contained any elements of the alleged crimes or any other crime subject to State prosecution. The public prosecutor established: that the RIBBS was responsible for persons with physical disabilities, but in practice also accommodated mentally disabled people; that it had sought the applicant ’ s transfer to an appropriate institution, since its staff had not been adequately trained to provide him with the requisite care; that the applicant, notwithstanding his medical diagnosis, had not had any physical disability, but had instead been a very active child who had required constant care from the staff; that the applicant had received the daily care he required, but the results of the work with him had been limited, owing to his speech disability; that there had been incidents where the applicant had left the RIBBS; and that occasionally the applicant had been tied to his bed with a rope. The prosecutor held that the aim of that measure had not been to ill ‑ treat or degrade him, but to prevent him from running away from the RIBBS and putting himself in danger or harming himself. In those circumstances, the public prosecutor concluded that the act of tying the applicant to his bed could not be considered an act of unlawful use of force or threats intended to extract a confession or cause suffering. The prosecutor found that there had been a lack of intent on the part of the suspects to subject the applicant to inhuman or degrading treatment, a subjective element of the reported crimes. The applicant had been tied to his bed in order to prevent him from harming himself. Furthermore, L.R. could not be regarded as falling within any category of victims specified under Article 142 of the Criminal Code (see paragraph 34 below). A copy of the decision (containing an instruction on legal remedies) was served on B. Social Welfare Centre, the applicant ’ s guardian. The guardian did not appeal against the decision. 21. On 30 December 2014, under the Public Prosecution Act (section 26(2)), the HCHR requested that the higher public prosecutor take over the prosecution. In that request, it reiterated that the applicant ’ s inappropriate placement and treatment in the RIBBS had amounted to inhuman and degrading treatment in violation of domestic and international law. It further added that the applicant ’ s guardian, although aware of his situation, had failed to take appropriate action. The findings of the first ‑ instance prosecutor ’ s office that the applicant had been tied to a bed for “safety reasons” were “unacceptable and absurd”. According to the HCHR, that amounted to unprofessional ( непрофесионално и нестручно ) exercise of office by the S. public prosecutor. 22. In a letter of 27 January 2015 (received by the HCHR on 2 February 2015), the higher public prosecutor informed the HCHR that it had inspected the case file and had noted that the lower prosecutor had undertaken many investigative measures and had obtained a great deal of evidence regarding the complaint. The higher public prosecutor ’ s office referred to the Ombudsman ’ s report, according to which “[the applicant] had been tied up for safety reasons” (see paragraph 11 above). It endorsed the facts and reasoning provided by the first-instance public prosecutor. It also upheld the findings that the applicant had been tied to his bed for safety reasons and that there had been a lack of intent on the part of the suspects to debase the applicant. 23. For the same reasons outlined above (see paragraph 21 above), the HCHR requested that the State Public Prosecutor take over the prosecution. By a letter of 1 June 2015 (received by the HCHR on 13 July 2015), the State Public Prosecutor confirmed the findings of the lower prosecutors ’ offices. D. Other relevant information 1. Medical report about the applicant ’ s state of health following his discharge from the RIBBS 24. On 10 July 2014 a psychiatric hospital in S. drew up a medical report about the applicant, the relevant parts of which state as follows: “... [the applicant] has a low level of functionality; [he has] communication difficulties ... [his] walking is stable, with synchronised movements; he keeps his balance properly ... Owing to [his] undeveloped communication skills, ... no two-way communication can be established ... I consider that [the applicant] suffers from autism ... accompanied by a mental disability and a speech disability. Owing to insufficient stimulation and early treatment, the child has a very low level of development and he is practically incapable of caring for himself.” 2. Proceedings before the B. public prosecutor 25. On 27 February 2015 the S. public prosecutor notified the B. public prosecutor about the HCHR ’ s criminal complaint, stating: “... it was established that the reported event [the applicant being tied to his bed] had been as a result of [the applicant ’ s] inappropriate placement in the RIBBS ... notwithstanding the fact that [the applicant] had no physical disabilities, in the medical report of 14 April 2008 he was classified as a person with multiple disabilities ... [including] the most severe form of physical disability ... He was classified in a similar way ... in 2014 ... Given the fact that medical reports about [the applicant] in 2008 and 2014, [prepared] by B. Hospital, ... did not reflect his real state of health ... we bring this information to your attention, as the competent prosecutor ’ s office, [so that you may] take measures regarding any crimes within your jurisdiction ...” 26. Soon afterwards the B. public prosecutor ’ s office requested and obtained a copy of the medical material concerning the applicant from B. Hospital. It also obtained relevant material from the applicant ’ s guardian and the competent inspectorate, which had found no shortcomings in B. Hospital ’ s work. No information was submitted as to the outcome of the proceedings before the B. public prosecutor. 3. Disciplinary proceedings 27. By a decision of 22 August 2014, the director of the RIBBS found no grounds to reprimand (the measure proposed to her by the disciplinary commission of the institute) V.N., P.R.V., S.I. and E.J. – employees in the RIBBS who had allegedly failed to comply with the rules on keeping medical records ( неизготвување на потребната стручна документација ). There is nothing to suggest that the HCHR was informed about the institution and completion of those proceedings. 4. Other actions taken by the HCHR regarding the applicant 28. In the second half of 2014 the HCHR brought the allegedly incorrect medical diagnosis of the applicant and his subsequent neglect to the attention of the Ministry of Labour and Social Policy, the Ministry of Health, the competent inspectorate, B. Hospital and the Ombudsman. It also enquired as to whether any measures had been taken against the staff at the RIBBS and B. Hospital. The inspectorate replied that B. Hospital had not identified any shortcomings. The HCHR also reported the applicant ’ s case in its annual reports of 2014 and 2015. V. Conclusions and recommendationsB. Recommendations “ 85. The Special Rapporteur calls upon all States to: .. (c) Conduct prompt, impartial and thorough investigations into all allegations of torture and ill-treatment in health-care settings; where the evidence warrants it, prosecute and take action against perpetrators; and provide victims with effective remedy and redress, including measures of reparation, satisfaction and guarantees of non-repetition as well as restitution, compensation and rehabilitation; ... ” 4. Persons with psychosocial disabilities “ 89. The Special Rapporteur calls upon all States to: (a) Review the anti-torture framework in relation to persons with disabilities in line with the Convention on the Rights of Persons with Disabilities as authoritative guidance regarding their rights in the context of health-care; (b) Impose an absolute ban on all forced and non-consensual medical interventions against persons with disabilities, including the non-consensual administration of psychosurgery, electroshock and mind-altering drugs such as neuroleptics, the use of restraint and solitary confinement, for both long- and short-term application. The obligation to end forced psychiatric interventions based solely on grounds of disability is of immediate application and scarce financial resources cannot justify postponement of its implementation; ...” B. Council of Europe 1. Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine of 4 April 1997 (CETS 164, Oviedo Convention) 39. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine, in its relevant parts provides: Article 6 – Protection of persons not able to consent ” 1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit. ... 3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The individual concerned shall as far as possible take part in the authorisation procedure. 4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5. 5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.” Article 7 – Protection of persons who have a mental disorder ” Subject to protective conditions prescribed by law, including supervisory, control and appeal procedures, a person who has a mental disorder of a serious nature may be subjected, without his or her consent, to an intervention aimed at treating his or her mental disorder only where, without such treatment, serious harm is likely to result to his or her health.” 2. Recommendation Rec(2004)10 of the Committee of Ministers to member States concerning the protection of the human rights and dignity of persons with mental disorders of 22 September 2004 40. The relevant parts of this Recommendation read as follows: Chapter V – Specific situationsArticle 27 – Seclusion and restraint ” 1. Seclusion or restraint should only be used in appropriate facilities, and in compliance with the principle of least restriction, to prevent imminent harm to the person concerned or others, and in proportion to the risks entailed. 2. Such measures should only be used under medical supervision, and should be appropriately documented. 3. In addition: i. the person subject to seclusion or restraint should be regularly monitored; ii. the reasons for, and duration of, such measures should be recorded in the person ’ s medical records and in a register.” 3. Report to the Government of “the former Yugoslav Republic of Macedonia” on the visit to “the former Yugoslav Republic of Macedonia” carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 7 to 17 October 2014, CPT/ Inf (2016) 8, Strasbourg, 17 March 2016 41. The relevant parts of the above Report read as follows: Social care establishments ” ... representatives of the social work centres still did not visit regularly the persons under their care nor act effectively in their interests. Steps need to be taken to address these matters ...” | This case concerned an eight-year-old child who had been in the care of State-run institutions since he was three months old and allegations of inadequate care and ill-treatment. His case had come to the notice of an NGO when the Ombudsman had visited him in an institute in 2013 and found him tied to his bed. The applicant submitted that he had been wrongly diagnosed as physically disabled, which had led to his being placed in an institute which had not been able to cater for his needs and to inadequate care and treatment amounting to neglect. He also complained that the investigation into his allegations had been ineffective. |
807 | Legal capacity | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1946 and lives in Zagreb. She has suffered since her early childhood from cerebral palsy and uses a wheel chair. In 1968 she was deprived of her legal capacity on account of “her physical illness and intellectual underdevelopment”. On 10 July 1979 her legal capacity was fully restored by a ruling of the Zagreb Municipal Court. 7. On 12 November 2009 the Pešćenica Social Welfare Centre (hereinafter “the Centre”) asked the Zagreb Municipal Court to institute proceedings with a view to partially depriving the applicant of her legal capacity in order to prevent her from disposing of her assets. They relied on a previous ruling of 1968 by the same court by which the applicant had been deprived of her legal capacity (see the preceding paragraph). They further asserted that the applicant had been suffering from “ grave bodily damage ” ( velika tjelesna oštećenja ) since early childhood, as she had been diagnosed with cerebral palsy and various chronic illnesses such as diabetes, high blood pressure and defective eyesight. 8. They further asserted, relying on a statement given by the applicant ’ s son at the Centre and a report by the Centre ’ s social worker, that the applicant ’ s condition had worsened after she had undergone an operation on her head on 9 September 2008. Since then she had suffered from personality changes, manifested in managing her money in an irrational manner, such as by not paying the monthly instalments for the purchase of her flat, electricity, water and other bills, and by purchasing mobile telephone cards instead of food. This could have led to the applicant ’ s eviction from the flat she occupied, as she had already received a final warning that a civil action in that respect was to be lodged. 9. The Centre ’ s request was supported by evidence, such as an electricity bill of 27,625.70 Croatian kunas (HRK) dated 30 March 2009, a copy of a final demand for payment of monthly instalments for the purchase of the applicant ’ s flat, with the debt amounting to HRK 8,290.25 as at 7 March 2009, a notice that the water supply for the applicant ’ s flat would be stopped as of 25 May 2009 on account of non-payment of a debt in the amount of HRK 4,447.42, and a debt recovery notice for the amount of HRK 451.70 payable to Croatian Radio and Television (HRT). 10. On 28 October 2009 the Centre appointed its employee, Ms J.T., as the applicant ’ s legal guardian in the proceedings before the Zagreb Municipal Court. In the proceedings before that court the guardian gave her full consent to the Centre ’ s application. The applicant was represented by a lawyer of her own choosing. 11. The Municipal Court heard the applicant on 24 March 2010 and established that : “ The respondent was found at her address in a wheelchair. She gave very meaningful answers; [she] stressed that she acted autonomously, kept her flat tidy, prepared her meals and was provided with help by her son and a tenant. She moved about independently in her wheelchair and did her own shopping, [and] paid [her own] bills, which gave rise to difficulties during winter. She stated that in the period when she had underwent a head surgery in September [2008], she had been late with paying her utility bills ... She did not agree with the proceedings [being brought] and considered that she did not need a guardian. She stressed that she regularly took [her] prescribed medication ... It is to be noted that the respondent was presentable and her home was tidy.” 12. In her written submissions the applicant explained that during her hospitalisation she had empowered her son to retrieve money from her bank account and pay the utility bills, which he had not done but had instead taken the money for himself. She asked that her son be examined by the court. 13. A psychiatric report commissioned for the purposes of the proceedings, drawn up on 12 April 2010 by D.P. and G.M., in so far as relevant reads as follows: “ A psychiatric examination of the respondent was carried out on 3 April 2010 at her home ... She stated that she had completed elementary school and had been an average pupil, that she had studied law for one year and knew all about the law. To me she said: ‘ You know how it was when you operated on me. ’ She is dissatisfied with the court proceedings [being brought] : ‘ I dislike the Pešćenica [Social Welfare Centre] because they attempted to send me to [a home in] Novi Marof. ’ And in respect of her son she said: ‘ I am sorry when someone blackmails him ’. She stated that she had been paying all her bills and that ‘ I previously had a huge negative [balance], [because] I had to pay for the hospital ’. She stated that she had a lot of acquaintances who were her former lodgers, whom she saw regularly when out and about in her wheelchair in her neighbourhood and ‘ they all respect me ’. Upon a direct question she denied having any mental problems. Psychological status: conscious, contact easily established, uncertain about time, in other respects well oriented. Has a wide and viscous ( viskozni ) thought process, with loss of determining tendency. Interacts without distance. In thought content confabulatory with a paranoid position, projections and infantile explanation. Basic disposition is elevated. Intellectually – memory functions are primarily insufficient at the LMR level, additionally compromised with psychoorganic type. Lacks insight into her condition. Marija Ivinović suffers from MB. Little, parapresis spast., monoparesis ext. sup. spast. sin., LMR, condition after brain haemorrhage, condition after stroke, condition after meningoencephalitis, with a lack of insight into her condition [and] the need for and purpose of treatment. Owing to this, she is not able to entirely look after her personal needs, rights and interests. Also, because of her state of health and lack of insight she may jeopardise the rights and interests of others.” 14. On 19 May 2010 the applicant lodged written submissions whereby she objected to the psychiatrists ’ findings, stating that it was not clear how they had concluded that she was unable to properly dispose of her money, given that the debts referred to had been incurred by her son when she had been hospitalised. 15. At a hearing held on 21 October 2010 the psychiatrists gave the following opinion evidence : “We entirely endorse our written report of 3 April 2010 and to the objections filed by the respondent we would state the following: on the basis of the enclosed medical records, social history and our own examination we have established that the respondent suffers from Morbus Littlee. She also suffers from triparesis with preserved functions of her right hand, mild mental retardation, and conditions following a brain haemorrhage and meningoencephalitis. Her intellectual capabilities are, owing to the above-mentioned [conditions], additionally compromised on the psychoorganic type. During the interview we noticed confabulations in the content of her thoughts, that is to say fabricated content, a paranoid position, in particular as regards her close family and the employees of the social welfare centre, and infantile explanation. The respondent lacks insight into her condition. All this led us [to conclude] that the respondent does not possess sufficient intellectual capacity to adequately protect her own rights and interests, and because of her lack of insight she might also jeopardise the rights and interests of others. We therefore consider that the application for deprivation of the respondent ’ s legal capacity as regards disposing of her money and assets and as regards taking decisions about her medical treatment, is appropriate. ” 16. On 21 October 2010 the Zagreb Municipal Court partially deprived the applicant of her legal capacity, thereby stopping her from disposing of her money and other assets and from making independent decisions concerning her medical treatment. The ruling relied exclusively on the opinion given by the two psychiatrists and extensively repeated their findings stated in their written report and their oral evidence given at the hearing of 21 October 2010. 17. The applicant lodged an appeal on 11 November 2010, in which she argued that partially depriving her of her legal capacity solely on the basis of the psychiatric report had not been justified, because the psychiatrists had lacked knowledge of how she spent her money and how she disposed of her assets. She argued that she had purchased the flat where she lived herself and there was no danger that she would give it up. The assertion that she was paranoid as regards her close family members was not correct. She had had troubled relations with her son at times because he had moved into her flat with his girlfriend and her daughter and had had an interest in having her removed from the flat and placed in a home. Therefore, she had successfully sought their eviction from her flat. She had also changed her bank and her son no longer had authority to use her credit card. She lived a peaceful life, and was a member of the Association of Disabled Persons with Cerebral Palsy and Poliomyelitis. The court conducting the proceedings had had the chance to establish that normal communication with her was possible and that she lived in a tidy flat. The Centre had not proven the need for her to be partially deprived of her legal capacity. Only a bookkeeping expert could have established the facts concerning her debts. 18. The applicant ’ s appeal was dismissed by the Bjelovar County Court on 26 January 2012, which again relied extensively on the psychiatric report. The appeal court added that the applicant had been hospitalised between 9 and 25 September 2008 and 23 October and 13 November 2008, whereas the unpaid bills (see paragraph 9 above) were dated 9 April 2009 ( electricity bill of HRK 27,625.70), 18 March 2009 (HRK 8,290.25 in monthly instalments for the purchase of the flat) and 22 May 2009 ( water bill of HRK 4,477.42), which indicated that the debts concerned a much longer period than the applicant ’ s hospitalisation. 19. The applicant then lodged a constitutional complaint, in which she repeated the arguments from her appeal, stressing that the debts in question had been incurred during the period in which she had been hospitalised and her son had had her bank card. Instead of paying her bills he had used the money from her account for his own needs. She added that only one of the psychiatrists who had drawn up the report on her mental state had interviewed her. She also stressed that it was entirely unclear what rights and interests of others she might jeopardise. The complaint was dismissed by the Constitutional Court on 13 June 2012. | Since her early childhood the applicant – who was born in 1946 –suffered from cerebral palsy and used a wheelchair. The case concerned proceedings, brought by a social welfare centre, in which she had been partly divested of her legal capacity. |
768 | Confidentiality of personal information concerning health | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1960 and lives in the city of Chernigiv. 1. The applicant ’ s criminal case and derivative proceedings a. Criminal charge against the applicant 5. On 3 May 1999 the Chernigiv City Prosecutor ’ Office (hereinafter the Prosecutor ’ Office) instituted criminal proceedings against the applicant for abuse of power and forgery of official documents. The prosecution ’ s case was that the applicant, while acting in his capacity as a private notary, had fraudulently certified a title and real-estate transactions using invalid registration forms. 6. On 21 May 1999 the Chernygiv City Prosecutor issued a search warrant in respect of the applicant ’ s office. The search was carried out the same day. According to the record drawn up on this occasion, the authorities seized at the office notary stamps and documents, a number of accounting records and a metal strong-box. The latter was opened on 2 July 1999 at the premises of the Prosecutor ’ s Office. The relevant record stated that there had been found, inter alia, personal items belonging to the applicant. 7. On 28 July 1999 an investigator from the Prosecutor ’ s Office closed the applicant ’ s case given the lack of any corpus delicti. 8. On 20 September 2000 the acting Chernigiv City Prosecutor overruled the investigator ’ s decision, as it had been proved that the applicant had committed the imputed offence, but ordered the discontinuation of proceedings due to the insignificance of the offence. The applicant challenged this finding, claiming that he had not committed any offence. On 21 December 2000 the Desniansky District Court of Chernigiv (hereafter “the Desniansky Court ”) rejected the applicant ’ s complaint. 9. On 26 February 2001 the Presidium of the Chernigiv Regional Court, in the course of supervisory proceedings, quashed the decision of the Desniansky Court and remitted the case. 10. On 4 April 2001 the Desniansky Court quashed the City Prosecutor ’ s ruling of 20 September 2000 and ordered a further pre-trial investigation. 11. On 26 May 2001 an investigator terminated the criminal proceedings on substantially the same grounds as in the September 2000 ruling. On 4 July 2001 the Chernigiv City Prosecutor quashed this decision and ordered further inquiries in the case. 12. On 4 August 2001 the criminal case was closed due to the insignificance of the offence which had been committed. The applicant ’ s complaint against this ruling was rejected on 6 November 2001 by the Desniansky Court as being unsubstantiated. In particular, the court indicated that the applicant ’ s guilt had been proved by the evidence collected in the course of the investigation. 13. On 24 January 2002 the Chernigiv Regional Court of Appeal (hereafter “the Court of Appeal”) quashed the decision of 6 November 2001 as the local court had failed to specify the evidence in support of its opinion as to the applicant ’ s guilt. The case was remitted for a fresh consideration. 14. On 26 June 2002 the Desniansky Court rejected the applicant ’ s complaint against the ruling of 4 August 2001. The court indicated that the investigation case file contained sufficient evidence to establish that the applicant had forged a certain notary document and wittingly carried out an invalid notarial action. However, having regard to the insignificance of the offence, further criminal prosecution was impractical. As regards the applicant ’ s submissions concerning the inadmissibility of the evidence obtained by the search of his office, the court found that such complaints could be raised during the trial on the merits and considered itself incompetent to examine them in the course of the proceedings before it. On 9 September 2002 the Court of Appeal upheld this decision. On 13 December 2002 the Supreme Court rejected the applicant ’ s request for leave to appeal under the cassation procedure. b. Compensation proceedings 15. In January 2000 the applicant instituted proceedings against the Prosecutor ’ s Office, seeking monetary compensation for the material and moral damage suffered as a result of the allegedly unlawful search of his office (i.e. loss of or damage to personal items and the seizure of documents essential for his professional activity). 16. On 28 August 2000 the Novozavodsky District Court of Chernigiv (hereafter “the Novozavodsky Court ”) granted this claim. The court declared the search of the applicant ’ s office “to have been conducted unlawfully” ( визнати проведення обшуку незаконним ). In particular, it established that in breach of Article 183 of the Code of Criminal Procedure (hereafter “the CCP”) the investigator, being well aware of the applicant ’ s whereabouts (at that time he was undergoing hospital treatment), had failed to serve the search warrant on him. Moreover, contrary to Article 186 of the CCP, the authorities, instead of collecting the evidence relating to the criminal case, had seized all the official documents and certain personal items in the applicant ’ s office. This had effectively denied the applicant the possibility of performing his professional duties until 6 August 1999, when the relevant documents and items were returned to him. The court awarded the applicant UAH 14,140 [1] in material and UAH 1,000 [2] in moral damages. 17. On 16 January 2001 the Chernygiv Regional Court, on an appeal by the Prosecutor ’ s Office, quashed the decision of 28 August 2000 and remitted the case for fresh consideration because the legal basis for the decision (namely the termination of the criminal proceedings on “exonerative” grounds ) had ceased to exist. 18. On 26 December 2001 the Novozavodsky Court examined the applicant ’ s claim and rejected it as being unsubstantiated. The court, referring to the Prosecutor ’ s Office ’ s ruling of 4 August 2001, found that the applicant ’ s case had been closed on non-exonerative grounds, within the meaning of Article 2 of the Law of Ukraine “on the procedure for compensation of damage caused to the citizen by unlawful actions of bodies of inquiry, pre-trial investigation, prosecutors and courts” 1994, and therefore the applicant had no standing to claim compensation for any acts or omissions allegedly committed by the authorities in the course of the investigation. 19. On 23 May 2002 the Court of Appeal stayed the appeal proceedings until the determination of the applicant ’ s complaint against the ruling of the Prosecutor ’ s Office of 4 August 2001 ( i. e. the grounds for the termination of his criminal case). On 3 January 2003 the appeal proceedings were renewed and the applicant ’ s appeal against the judgment of 26 December 2001 was rejected. 2. Defamation proceedings 20. In December 2001 the applicant instituted proceedings in the Novozavodsky Court against the Chernigiv Law College and its Principal for defamation. The applicant alleged that, during the Attestation Commission ’ s hearing on 14 May 2001, the Principal had made three statements about him which were libellous and abusive, including one rudely questioning his mental health. The applicant demanded apologies and compensation for moral damage. 21. During the trial, one of the applicant ’ s main arguments was that he had never suffered any mental health problems. He adduced to this effect a certificate supposedly issued by a psychiatric hospital, attesting that the applicant had never been treated there. 22. The case of the defence was that the Principal had never uttered the obscenities attributed to him by the applicant. However, they challenged the authenticity of the above certificate and asked the court to verify the applicant ’ s assertions. On 21 March 2002 this application was granted and the Chernigiv Regional Psycho-Neurological Hospital was requested to provide information as to whether the applicant had undergone any psychiatric treatment. On 3 April 2002 the hospital submitted to the court a certificate to the effect that for several years the applicant had been registered as suffering from a certain mental illness and underwent in-patient treatment in different psychiatric establishments. However, several years earlier his psychiatric registration had been cancelled due to long-term remission (a temporary lessening of the severity) of the disease. This information was read out by a judge at one of the subsequent hearings; however, no reference to this evidence was made in the final judgment. 23. On 3 June 2002 the Novozavodsky Court rejected the applicant ’ s claim as unsubstantiated. The court found, inter alia, that the applicant had failed to prove that the defendant had made any remarks about his sanity. 24. The applicant appealed, challenging, inter alia, the lawfulness of the court ’ s request for information about his mental state. 25. On 1 October 2002 the Court of Appeal upheld the judgment in substance. On the same day the court issued a separate ruling to the effect that the first instance court ’ s request for information concerning the applicant ’ s mental health from the public hospital was contrary to Article 32 of the Constitution, Articles 23 and 31 of the Data Act 1992 and Article 6 of the Psychiatric Medical Assistance Act 2000. In particular, it was indicated that information about a person ’ s mental health was confidential, and its collection, retention, use and dissemination fell under a special regime. Moreover, the court held that the requested evidence had no relevance to the case. Summing up the above considerations, the Court of Appeal found that the judges of the lower courts lacked training in the field of confidential data protection and notified the Regional Centre for Judicial Studies about the need to remedy this lacuna in their training programme. 26. On 24 June 2003 the Supreme Court rejected the applicant ’ s request for leave to appeal under the cassation procedure. | The applicant complained in particular about the disclosure at a court hearing of confidential information regarding his mental state and psychiatric treatment. |
746 | Freedom of expression / Freedom to receive and impart information (Article 10 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE A. The leaflet 8. The applicants, Helen Steel and David Morris, were born in 1965 and 1954 respectively and live in London. 9. During the period with which this application is concerned, Ms Steel was at times employed as a part-time bar worker, earning approximately 65 pounds sterling (GBP) per week, and was at other times unwaged and dependent on income support. Mr Morris, a former postal worker, was unwaged and in receipt of income support. He was a single parent, responsible for the day - to - day care of his son, aged 4 when the trial began. At all material times the applicants were associated with London Greenpeace, a small group, unconnected to Greenpeace International, which campaigned principally on environmental and social issues. 10. In the mid-1980s London Greenpeace began an anti-McDonald's campaign. In 1986 a six-page leaflet entitled “What's wrong with McDonald's?” (“the leaflet ”) was produced and distributed as part of that campaign. It was last reprinted in early 1987. 11. The first page of the leaflet showed a grotesque cartoon image of a man, wearing a Stetson and with dollar signs in his eyes, hiding behind a “Ronald McDonald” clown mask. Running along the top of pages 2 to 5 was a header comprised of the McDonald's “golden arches” symbol, with the words “McDollars, McGreedy, McCancer, McMurder, McDisease ... ” and so forth superimposed on it. 12. The text of page 2 of the leaflet read as follows (extract): “ What's the connection between McDonald's and starvation in the'Third World'? THERE's no point feeling guilty about eating while watching starving African children on TV. If you do send money to Band Aid, or shop at Oxfam, etc., that's morally good but politically useless. It shifts the blame from governments and does nothing to challenge the power of multinational corporations. HUNGRY FOR DOLLARS McDonald's is one of several giant corporations with investments in vast tracts of land in poor countries, sold to them by the dollar-hungry rulers (often military) and privileged elites, evicting the small farmers that live there growing food for their own people. The power of the US dollar means that in order to buy technology and manufactured goods, poor countries are trapped into producing more and more food for export to the States. Out of 40 of the world's poorest countries, 36 export food to the USA – the wealthiest. ECONOMIC IMPERIALISM Some'Third World'countries, where most children are undernourished, are actually exporting their staple crops as animal feed – i.e. to fatten cattle for turning into burgers in the'First World'. Millions of acres of the best farmland in poor countries are being used for our benefit – for tea, coffee, tobacco, etc. – while people there are starving. McDonald's is directly involved in this economic imperialism, which keeps most black people poor and hungry while many whites grow fat. GROSS MISUSE OF RESOURCES GRAIN is fed to cattle in South American countries to produce the meat in McDonald's hamburgers. Cattle consume 10 times the amount of grain and soy that humans do: one calorie of beef demands ten calories of grain. Of the 145 million tons of grain and soy fed to livestock, only 21 million tons of meat and by-products are used. The waste is 124 million tons a year at a value of 20 billion US dollars. It has been calculated that this sum would feed, clothe and house the world's entire population for one year .” The first page of the leaflet also included a photograph of a woman and child, with the caption: “ A typical image of'Third World'poverty – the kind often used by charities to get'compassion money'. This diverts attention from one cause: exploitation by multinationals like McDonald's. ” The second and third pages of the leaflet contained a cartoon image of a burger, with a cow's head sticking out of one side and saying “If the slaughterhouse doesn't get you” and a man's head sticking out of the other, saying “the junk food will!” Pages 3 to 5 read as follows: “ FIFTY ACRES EVERY MINUTE EVERY year an area of rainforest the size of Britain is cut down or defoliated, and burnt. Globally, one billion people depend on water flowing from these forests, which soak up rain and release it gradually. The disaster in Ethiopia and Sudan is at least partly due to uncontrolled deforestation. In Amazonia – where there are now about 100,000 beef ranches – torrential rains sweep down through the treeless valleys, eroding the land and washing away the soil. The bare earth, baked by the tropical sun, becomes useless for agriculture. It has been estimated that this destruction causes at least one species of animal, plant or insect to become extinct every few hours. Why is it wrong for McDonald's to destroy rainforests? AROUND the Equator there is a lush green belt of incredibly beautiful tropical forest, untouched by human development for one hundred million years, supporting about half of the Earth's life-forms, including some 30,000 plant species, and producing a major part of the planet's crucial supply of oxygen. PET FOOD AND LITTER McDonald's and Burger King are two of the many US corporations using lethal poisons to destroy vast areas of Central American rainforest to create grazing pastures for cattle to be sent back to the States as burgers and pet food, and to provide fast-food packaging materials. (Don't be fooled by McDonald's saying they use recycled paper: only a tiny per cent of it is. The truth is it takes 800 square miles of forest just to keep them supplied with paper for one year. Tons of this end up littering the cities of'developed'countries.) COLONIAL INVASION Not only are McDonald's and many other corporations contributing to a major ecological catastrophe, they are forcing the tribal peoples in the rainforests off their ancestral territories where they have lived peacefully, without damaging their environment, for thousands of years. This is a typical example of the arrogance and viciousness of multinational companies in their endless search for more and more profit. It's no exaggeration to say that when you bite into a Big Mac, you're helping McDonald's empire to wreck this planet. What's so unhealthy about McDonald's food? McDONALD's try to show in their'Nutrition Guide'(which is full of impressive-looking but really quite irrelevant facts and figures) that mass-produced hamburgers, chips, colas and milkshakes, etc., are a useful and nutritious part of any diet. What they don't make clear is that a diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals – which describes an average McDonald's meal – is linked with cancers of the breast and bowel, and heart disease. This is accepted medical fact, not a cranky theory. Every year in Britain, heart disease alone causes about 18,000 deaths. FAST = JUNK Even if they like eating them, most people recognise that processed burgers and synthetic chips, served up in paper and plastic containers, is junk-food. McDonald's prefer the name'fast-food'. This is not just because it is manufactured and served up as quickly a possible – it has to be eaten quickly too. It's a sign of the junk-quality of Big Macs that people actually hold competitions to see who can eat one in the shortest time. PAYING FOR THE HABIT Chewing is essential for good health, as it promotes the flow of digestive juices which break down the food and send nutrients into the blood. McDonald's food is so lacking in bulk it is hardly possible to chew it. Even their own figures show that a'quarter-pounder'is 48% water. This sort of fake food encourages over-eating, and the high sugar and sodium content can make people develop a kind of addiction – a'craving'. That means more profit for McDonald's, but constipation, clogged arteries and heart attacks for many customers. GETTING THE CHEMISTRY RIGHT McDONALD's stripy staff uniforms, flashy lighting, bright plastic décor,'Happy Hats'and muzak, are all part of the gimmicky dressing-up of low-quality food which has been designed down to the last detail to look and feel and taste exactly the same in any outlet anywhere in the world. To achieve this artificial conformity, McDonald's require that their'fresh lettuce leaf', for example, is treated with twelve different chemicals just to keep it the right colour at the right crispness for the right length of time. It might as well be a bit of plastic. How do McDonald's deliberately exploit children? NEARLY all McDonald's advertising is aimed at children. Although the Ronald McDonald'personality'is not as popular as their market researchers expected (probably because it is totally unoriginal), thousands of young children now think of burgers and chips every time they see a clown with orange hair. THE NORMALITY TRAP No parent needs to be told how difficult it is to distract a child from insisting on a certain type of food or treat. Advertisements portraying McDonald's as a happy, circus-like place where burgers and chips are provided for everybody at any hour of the day (and late at night), traps children into thinking they aren't'normal'if they don't go there too. Appetite, necessity and – above all – money, never enter into the'innocent'world of Ronald McDonald. Few children are slow to spot the gaudy red and yellow standardised frontages in shopping centres and high streets throughout the country. McDonald's know exactly what kind of pressure this puts on people looking after children. It's hard not to give in to this'convenient'way of keeping children'happy', even if you haven't got much money and you try to avoid junk-food. TOY FOOD As if to compensate for the inadequacy of their products, McDonald's promote the consumption of meals as a'fun event'. This turns the act of eating into a performance, with the'glamour'of being in a McDonald's ('Just like it is in the ads!') reducing the food itself to the status of a prop. Not a lot of children are interested in nutrition, and even if they were, all the gimmicks and routines with paper hats and straws and balloons hide the fact that the food they're seduced into eating is at best mediocre, at worst poisonous – and their parents know it's not even cheap. RONALD'S DIRTY SECRET ONCE told the grim story about how hamburgers are made, children are far less ready to join in Ronald McDonald's perverse antics. With the right prompting, a child's imagination can easily turn a clown into a bogeyman (a lot of children are very suspicious of clowns anyway). Children love a secret, and Ronald's is especially disgusting. In what way are McDonald's responsible for torture and murder? THE menu at McDonald's is based on meat. They sell millions of burgers every day in 35 countries throughout the world. This means the constant slaughter, day by day, of animals born and bred solely to be turned into McDonald's products. Some of them – especially chickens and pigs – spend their lives in the entirely artificial conditions of huge factory farms, with no access to air or sunshine and no freedom of movement. Their deaths are bloody and barbaric. MURDERING A BIG MAC In the slaughterhouse, animals often struggle to escape. Cattle become frantic as they watch the animal before them in the killing-line being prodded, beaten, electrocuted and knifed. A recent British government report criticised inefficient stunning methods which frequently result in animals having their throats cut while still fully conscious. McDonald's are responsible for the deaths of countless animals by this supposedly humane method. We have the choice to eat meat or not. The 450 million animals killed for food in Britain every year have no choice at all. It is often said that after visiting an abattoir, people become nauseous at the thought of eating flesh. How many of us would be prepared to work in a slaughterhouse and kill the animals we eat? WHAT'S YOUR POISON? MEAT is responsible for 70% of all food-poisoning incidents, with chicken and minced meat (as used in burgers) being the worst offenders. When animals are slaughtered, meat can be contaminated with gut contents, faeces and urine, leading to bacterial infection. In an attempt to counteract infection in their animals, farmers routinely inject them with doses of antibiotics. These, in addition to growth-promoting hormone drugs and pesticide residues in their feed, build up in the animals'tissues and can further damage the health of people on a meat-based diet. What's it like working for McDonald's? THERE must be a serious problem: even though 80% of McDonald's workers are part-time, the annual staff turnover is 60% (in the USA it's 300%). It's not unusual for their restaurant workers to quit after just four or five weeks. The reasons are not hard to find. NO UNIONS ALLOWED Workers in catering do badly in terms of pay and conditions. They are at work in the evenings and at weekends, doing long shifts in hot, smelly, noisy environments. Wages are low and chances of promotion minimal. To improve this through Trade Union negotiation is very difficult: there is no union specifically for these workers, and the ones they could join show little interest in the problems of part-timers (mostly women). A recent survey of workers in burger-restaurants found that 80% said they needed union help over pay and conditions. Another difficulty is that the'kitchen trade'has a high proportion of workers from ethnic minority groups who, with little chance of getting work elsewhere, are wary of being sacked – as many have been – for attempting union organisation. McDonald's have a policy of preventing unionisation by getting rid of pro-union workers. So far this has succeeded everywhere in the world except Sweden, and in Dublin after a long struggle. TRAINED TO SWEAT It's obvious that all large chain-stores and junk-food giants depend for their fat profits on the labour of young people. McDonald's is no exception: three-quarters of its workers are under 21. The production-line system deskills the work itself: anybody can grill a hamburger, and cleaning toilets or smiling at customers needs no training. So there is no need to employ chefs or qualified staff – just anybody prepared to work for low wages. As there is no legally-enforced minimum wage in Britain, McDonald's can pay what they like, helping to depress wage levels in the catering trade still further. They say they are providing jobs for school-leavers and take them on regardless of sex or race. The truth is McDonald's are only interested in recruiting cheap labour – which always means that disadvantaged groups, women and black people especially, are even more exploited by industry than they are already.” The leaflet continued, on pages 5 and 6, with a number of proposals and suggestions for change, campaigning and activity, and information about London Greenpeace. B. Proceedings in the High Court 13. Because London Greenpeace was not an incorporated body, no legal action could be taken directly against it. Between October 1989 and January or May 1991, UK McDonald's hired seven private investigators from two different firms to infiltrate the group with the aim of finding out who was responsible for writing, printing and distributing the leaflet and organising the anti-McDonald's campaign. The inquiry agents attended over forty meetings of London Greenpeace, which were open to any member of the public who wished to attend, and other events such as “fayres” and public, fund-raising occasions. McDonald's subsequently relied on the evidence of some of these agents at trial to establish that the applicants had attended meetings and events and been closely involved with the organisation during the period when the leaflet was being produced and distributed. 14. On 20 September 1990 McDonald's Corporation (“US McDonald's”) and McDonald's Restaurants Limited (“UK McDonald's” ), together referred to herein as “McDonald's”, issued a writ against the applicants and three others, claiming damages of up to GBP 100,000 for libel caused by the alleged publication by the defendants of the leaflet. McDonald's withdrew proceedings against the three other defendants, in exchange for their apology for the contents of the leaflet. 15. The applicants denied publication, denied that the words complained of had the meanings attributed to them by McDonald's and denied that all or some of the meanings were capable of being defamatory. Further, they contended, in the alternative, that the words were substantially true or else were fair comment on matters of fact. 16. The applicants applied for legal aid but were refused it on 3 June 1992, because legal aid was not available for defamation proceedings in the United Kingdom. They therefore represented themselves throughout the trial and appeal. Approximately GBP 40,000 was raised by donation to assist them (for example, to pay for transcripts : see paragraph 20 below ), and they received some help from barristers and solicitors acting pro bono : thus, their initial pleadings were drafted by lawyers, they were given some advice on an ad hoc basis, and they were represented during five of the pre-trial hearings and on three occasions during the trial, including the appeal to the Court of Appeal against the trial judge's grant of leave to McDonald's to amend the statement of claim ( see paragraph 24 below ). They submitted, however, that they were severely hampered by lack of resources, not just in the way of legal advice and representation, but also when it came to administration, photocopying, note-taking, and the tracing, preparation and payment of the costs and expenses of expert and factual witnesses. Throughout the proceedings McDonald's were represented by leading and junior counsel, experienced in defamation law, and by one or two solicitors and other assistants. 17. In March 1994 UK McDonald's produced a press release and leaflet for distribution to their customers about the case, entitled “Why McDonald's is going to Court”. In May 1994 they produced a document called “Libel Action – Background Briefing” for distribution to the media and others. These documents included, inter alia, the allegation that the applicants had published a leaflet which they knew to be untrue, and the applicants counter-claimed for damages for libel from UK McDonald's. 18. Before the start of the trial there were approximately twenty-eight interim applications, involving various issues of law and fact, some lasting as long as five days. For example, on 21 December 1993 the trial judge, Mr Justice Bell (“Bell J”), ruled that the action should be tried by a judge alone rather than a judge and jury, because it would involve the prolonged examination of documents and expert witnesses on complicated scientific matters. This ruling was upheld by the Court of Appeal on 25 March 1994, after a hearing at which the applicants were represented pro bono. 19. The trial took place before Bell J between 28 June 1994 and 13 December 1996. It lasted for 313 court days, of which 40 were taken up with legal argument, and was the longest trial (either civil or criminal) in English legal history. Transcripts of the trial ran to approximately 20,000 pages; there were about 40,000 pages of documentary evidence; and, in addition to many written witness statements, 130 witnesses gave oral evidence – 59 for the applicants, 71 for McDonald's. Ms Steel gave evidence in person but Mr Morris chose not to. 20. The applicants were unable to pay for daily transcripts of the proceedings, which cost approximately GBP 750 per day, or GBP 375 if split between the two parties. McDonald's paid the fee, and initially provided the applicants with free copies of the transcripts. However, McDonald's stopped doing this on 3 July 1995, because the applicants refused to undertake to use the transcripts only for the purposes of the trial, and not to publicise what had been said in court. The trial judge refused to order McDonald's to supply the transcripts in the absence of the applicants'undertaking, and this ruling was upheld by the Court of Appeal. Thereafter, the applicants, using donations from the public, purchased transcripts at reduced cost (GBP 25 per day), twenty-one days after the evidence had been given. They submit that, as a result, and without sufficient helpers to take notes in court, they were severely hampered in their ability to examine and cross-examine witnesses effectively. 21. During the trial, Mr Morris faced an unconnected action brought against him by the London Borough of Haringey relating to possession of a property. Mr Morris signed an affidavit (“the Haringey affidavit”) in support of his application to have those proceedings stayed until the libel trial was over, in which he stated that the libel action had arisen “from leaflets we had produced concerning, inter alia, nutrition of McDonald's food ... ”. McDonald's applied for this affidavit to be adduced as evidence in the libel trial as an admission against interest on publication by Mr Morris, and Bell J agreed to this request. Mr Morris objected that the affidavit should have read “allegedly produced ” but that there had been a mistake on the part of his solicitor. The solicitor confirmed in writing to the court that the second applicant had instructed her to correct the affidavit, but that she had not done so because the error had not been material to the Haringey proceedings. The applicants submitted that they assumed that the solicitor's letter would be admitted in evidence, and that Bell J did not warn them that it was inadmissible until the closure of evidence, so that they did not realise they needed to adduce further evidence to explain the mistake. The applicants'appeal to the Court of Appeal against Bell J's admission of the affidavit was refused on 25 March 1996. 22. On 20 November 1995, Bell J ruled on the meaning of the paragraph in the leaflet entitled “What's so unhealthy about McDonald's food?”, finding that this part of the leaflet bore the meaning “ ... that McDonald's food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real risk that you will suffer cancer of the breast or bowel or heart disease as a result; that McDonald's know this but they do not make it clear; that they still sell the food, and they deceive customers by claiming that their food is a useful and nutritious part of any diet”. 23. The applicants appealed to the Court of Appeal against this ruling, initially relying on seven grounds of appeal. However, the day before the hearing on 2 April 1996 before the Court of Appeal, Ms Steel gave notice on behalf of both applicants that they were withdrawing six of the seven grounds, and now wished solely to raise the issue whether the trial judge had been wrong in determining a meaning which was more serious than that pleaded by McDonald's in their statement of claim. The applicants submitted that they withdrew the other grounds of appeal relating to the meaning of this part of the leaflet because lack of time and legal advice prevented them from fully pursuing them. They mistakenly believed that it would remain open to them to raise these matters again at a full appeal after the conclusion of the trial. The Court of Appeal decided against the applicants on the remaining single ground, holding that the meaning given to this paragraph by the judge was less severe than that pleaded by McDonald's. 24. In the light of the Haringey affidavit, McDonald's sought permission from the court to amend their statement of claim to allege that the applicants had been involved in the production of the leaflet and to allege publication dating back to September 1987. The applicants objected that such an amendment so late in the trial would be unduly prejudicial. However, on 26 April 1996 Bell J gave permission to McDonald's for the amendments; the applicants were allowed to amend their defence accordingly. 25. Before the trial, the applicants had sought an order that McDonald's disclose the notes made by their enquiry agents; McDonald's had responded that there were no notes. During the course of the trial, however, it emerged that the notes did exist. The applicants applied for disclosure, which was opposed by McDonald's on the ground that the notes were protected by legal professional privilege. On 17 June 1996 Bell J ruled that the notes should be disclosed, but with those parts which did not relate to matters contained in the witness statements or oral evidence of the enquiry agents deleted. 26. When all the evidence had been adduced, Bell J deliberated for six months before delivering his substantive 762- page judgment on 19 June 1997. On the basis, principally, of the Haringey affidavit and the evidence of McDonald's enquiry agents, he found that the second applicant had participated in the production of the leaflet in 1986, at the start of London Greenpeace's anti-McDonald's campaign, although the precise part he played could not be identified. Mr Morris had also taken part in the leaflet's distribution. Having assessed the evidence of a number of witnesses, including Ms Steel herself, he found that her involvement had begun in early 1988 and took the form of participation in London Greenpeace's activities, sharing its anti-McDonald's aims, including distribution of the leaflet. The judge found that the applicants were responsible for the publication of “several thousand” copies of the leaflet. It was not found that this publication had any impact on the sale of McDonald's products. He also found that the London Greenpeace leaflet had been reprinted word for word in a leaflet produced in 1987 and 1988 by an organisation based in Nottingham called Veggies Ltd. McDonald's had threatened libel proceedings against Veggies Ltd, but had agreed a settlement after Veggies rewrote the section in the leaflet about the destruction of the rainforest and changed the heading “In what way are McDonald's responsible for torture and murder?” to read “In what way are McDonald's responsible for the slaughtering and butchering of animals?”. 27. Bell J summarised his findings as to the truth or otherwise of the allegations in the leaflet as follows: “In summary, comparing my findings with the defamatory messages in the leaflet, of which the Plaintiffs actually complained, it was and is untrue to say that either Plaintiff has been to blame for starvation in the Third World. It was and is untrue to say that they have bought vast tracts of land or any farming land in the Third World, or that they have caused the eviction of small farmers or anyone else from their land. It was and is untrue to say that either Plaintiff has been guilty of destruction of rainforest, thereby causing wanton damage to the environment. It was and is untrue to say that either of the Plaintiffs have used lethal poisons to destroy vast areas or any areas of Central American rainforest, or that they have forced tribal people in the rainforest off their ancestral territories. It was and is untrue to say that either Plaintiff has lied when it has claimed to have used recycled paper. The charge that McDonald's food is very unhealthy because it is high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, and because eating it more than just occasionally may well make your diet high in fat, sugar, animal products and salt (sodium), and low in fibre, vitamins and minerals, with the very real, that is to say serious or substantial risk that you will suffer cancer of the breast or bowel or heart disease as a result, and that McDonald's know this but they do not make it clear, is untrue. However, various of the First and Second Plaintiffs'advertisements, promotions and booklets have pretended to a positive nutritional benefit which McDonald's food, high in fat and saturated fat and animal products and sodium, and at one time low in fibre, did not match. It was true to say that the Plaintiffs exploit children by using them as more susceptible subjects of advertising, to pressurise their parents into going into McDonald's. Although it was true to say that they use gimmicks and promote the consumption of meals at McDonald's as a fun event, it was not true to say that they use the gimmicks to cover up the true quality of their food or that they promote them as a fun event when they know that the contents of their meals could poison the children who eat them. Although some of the particular allegations made about the rearing and slaughter of animals are not true, it was true to say, overall, that the Plaintiffs are culpably responsible for cruel practices in the rearing and slaughter of some of the animals which are used to produce their food. It was and is untrue that the Plaintiffs sell meat products which, as they must know, expose their customers to a serious risk of food poisoning. The charge that the Plaintiffs provide bad working conditions has not been justified, although some of the Plaintiffs'working conditions are unsatisfactory. The charge that the Plaintiffs are only interested in recruiting cheap labour and that they exploit disadvantaged groups, women and black people especially as a result, has not been justified. It was true to say that the Second Plaintiff [UK McDonald's] pays its workers low wages and thereby helps to depress wages for workers in the catering trade in Britain, but it has not been proved that the First Plaintiff [US McDonald's] pays its workers low wages. The overall sting of low wages for bad working conditions has not been justified. It was and is untrue that the Plaintiffs have a policy of preventing unionisation by getting rid of pro-union workers.” 28. As regards the applicants'counter-claim, Bell J found that McDonald's allegation that the applicants had lied in the leaflet had been unjustified, although they had been justified in alleging that the applicants had wrongly sought to deny responsibility for it. He held that the unjustified remarks had not been motivated by malice, but had been made in a situation of qualified privilege because McDonald's had been responding to vigorous attacks made on them in the leaflet, and he therefore entered judgment for McDonald's on the counter-claim also. 29. The judge awarded US McDonald's GBP 30,000 damages and UK McDonald's a further GBP 30,000. Mr Morris was severally liable for the whole GBP 60,000, and Mr Morris and Ms Steel were to be jointly and severally liable for a total of GBP 5 5 ,000 (GBP 27,500 in respect of each plaintiff ). McDonald's did not ask for an order that the applicants pay their costs. C. The substantive appeal 30. The applicants appealed to the Court of Appeal on 3 September 1997. The hearing (before Lord Justices Pill and May and Mr Justice Keene) began on 12 January 1999 and lasted 23 days, and on 31 March 1999 the court delivered its 301- page judgment. 31. The applicants challenged a number of Bell J's decisions on general grounds of law, and contended as follows: “(a) [McDonald's] had no right to maintain an action for defamation because: – [US McDonald's] is a'multinational'and [US and UK McDonald's] are each a public corporation which has (or should have) no right at common law to bring an action for defamation on the public policy ground that in a free and democratic society such corporations must always be open to unfettered scrutiny and criticism, particularly on issues of public interest; – the right of corporations such as [McDonald's] to maintain an action for defamation is not'clear and certain'as the judge held ... The law is on the contrary uncertain, developing or incomplete ... Accordingly the judge should have considered and applied Article 10 of the European Convention on Human Rights ... (b) The judge was wrong to hold that [McDonald's] need [not] prove any particular financial loss or special damage provided that damage to its good will was likely. (c) The judge should have held that the burden was on [McDonald's] to prove that the matters complained of by them were false. (d) The judge was wrong to hold that, to establish a defence of justification, the [applicants] had to prove that the defamatory statements were true. The rule should be disapplied in the light of Article 10 of the ECHR. (e) It should be a defence in English law to defamation proceedings that the defendant reasonably believed that the words complained of were true. (f) There should be a defence in English law of qualified privilege for a publication concerning issues of public importance and interest relating to public corporations such as [McDonald's]. (g) The judge should have held that the publication of the leaflet was on occasions of qualified privilege because it was a reasonable and legitimate response to an actual or perceived attack on the rights of others, in particular vulnerable sections of society who generally lack the means to defend themselves adequately (e. g. children, young workers, animals and the environment) which the [applicants] had a duty to make and the public an interest to hear.” 32. The Court of Appeal rejected these submissions. On point (a), it held that commercial corporations had a clear right under English law to sue for defamation, and that there was no principled basis upon which a line might be drawn between strong corporations which should, according to the applicants, be deprived of this right, and weaker corporations which might require protection from unjustified criticism. In dismissing ground (b), it held that, as with an individual plaintiff, there was no obligation on a company to show that it had suffered actual damage, since damage to a trading reputation might be as difficult to prove as damage to the reputation of an individual, and might not necessarily cause immediate or quantifiable loss. A corporate plaintiff which showed that it had a reputation within the jurisdiction and that the defamatory publication was apt to damage its goodwill thus had a complete cause of action capable of leading to a substantial award of damages. On grounds (c) and (d), the applicants'submissions were contrary to clearly established English law, which stated that a publication shown by a plaintiff to be defamatory was presumed to be false until proved otherwise, and that it was for the defendants to prove the truth of statements presented as assertions of fact. Moreover, the court found some general force in McDonald's submission that in the instant case they had in fact largely accepted the burden of proving the falsity of the parts of the leaflet on which they had succeeded. Dismissing grounds (e) to (g), the court observed that a defence of qualified privilege did exist under English law, but only where (i) the publisher acted under a legal, moral or social duty to communicate the information; (ii) the recipient of the information had an interest in receiving it; and (iii) the nature, status and source of the material and the circumstances of the publication were such that the publication should be protected in the public interest in the absence of proof of malice. The court accepted that there was a public interest in receiving information about the activities of companies and that the duty to publish was not confined to the mainstream media but could also apply to members of campaign groups, such as London Greenpeace. However, to satisfy the test, the duty to publish had to override the requirement to verify the facts. Privilege was more likely to be extended to a publication that was balanced, properly researched, in measured tones and based on reputable sources. In the instant case, the leaflet “did not demonstrate that care in preparation and research, or reference to sources of high authority or status, as would entitle its publishers to the protection of qualified privilege”. English law provided a proper balance between freedom of expression and the protection of reputation and was not inconsistent with Article 10 of the Convention. Campaign groups could perform a valuable role in public life, but they should be able to moderate their publications so as to attract a defence of fair comment without detracting from any stimulus to public discussion which the publication might give. The relaxation of the law contended for would open the way for “partisan publication of unrestrained and highly damaging untruths”, and there was a pressing social need “to protect particular corporate business reputations, upon which the well-being of numerous individuals may depend, from such publications”. 33. The Court of Appeal further rejected the applicants'contention that the appeal should be allowed on the basis that the action was an abuse of process or that the trial was conducted unfairly, observing as follows: “Litigants in person who bring or contest a High Court action are inevitably undertaking a strenuous and burdensome task. This action was complex and the legal advice available to the [applicants] was, because of lack of funds, small in extent. We accept that the work required of the [applicants] at trial was very considerable and had to be done in an environment which, at least initially, was unfamiliar to them. As a starting- point, we cannot however hold it to be an abuse of process in itself for plaintiffs with great resources to bring a complicated case against unrepresented defendants of slender means. Large corporations are entitled to bring court proceedings to assert or defend their legal rights just as individuals have the right to bring actions and defend them. ... Moreover the proposition that the complexity of the case may be such that a judge ought to stop the trial on that ground cannot be accepted. The rule of law requires that rights and duties under the law are determined. ... As to the conduct of the trial, we note that the 313 hearing days were spread over a period of two and a half years. The timetable had proper regard to the fact that the [applicants] were unrepresented and to their other difficulties. They were given considerable time to prepare their final submissions to which they understandably attached considerable importance and which were of great length. For the purpose of preparing closing submissions, the [applicants] had possession of a full transcript of the evidence given at the trial. The fact that, for a part of the trial, the [ applicants ] did not receive transcripts of evidence as soon as they were made does not render the trial unfair. Quite apart from the absence of an obligation to provide a transcript, there is no substantial evidence that the [applicants] were in the event prejudiced by delay in receipt of daily transcripts during a part of the trial. On the hearing of the appeal, we have been referred to many parts of the transcripts of evidence and submissions and have looked at other parts on our own initiative. On such references, we have invariably been impressed by the care, patience and fairness shown by the judge. He was well aware of the difficulties faced by the [applicants] as litigants in person and had full regard to them in his conduct of the trial. The [ applicants ] conducted their case forcefully and with persistence as they have in this Court. Of course the judge listened to submissions from the very experienced leading counsel appearing for [McDonald's] but the judge applied his mind robustly and fairly to the issues raised. This emerges from the transcripts and from the judgment he subsequently handed down. The judge was not slow to criticise [McDonald's] in forthright terms when he thought their conduct deserved it. Moreover, it appears to us that the [applicants] were shown considerable latitude in the manner in which they presented their case and in particular in the extent to which they were often permitted to cross-examine witnesses at great length. ... [We] are quite unpersuaded that the appeal, or any part of it, should be allowed on the basis that the action was an abuse of the process of the Court or that the trial was conducted unfairly.” 34. The applicants also challenged a number of Bell J's findings about the content of the leaflet, and the Court of Appeal found in their favour on several points, summarised as follows: “On the topic of nutrition, the allegation that eating McDonald's food would lead to a very real risk of cancer of the breast and of the bowel was not proved. On pay and conditions we have found that the defamatory allegations in the leaflet were comment. In addition to the charges found to be true by the judge – the exploiting of children by advertising, the pretence by the respondents that their food had a positive nutritional benefit, and McDonald's responsibility for cruel practices in the rearing and slaughtering of some of the animals used for their products – the further allegation that, if one eats enough McDonald's food, one's diet may well become high in fat etc., with the very real risk of heart disease, was justified. ... ” 35. The Court of Appeal therefore reduced the damages payable to McDonald's, so that Ms Steel was now liable for a total of GBP 36,000 and Mr Morris for a total of GBP 40,000. It refused the applicants leave to appeal to the House of Lords. 36. On 21 March 2000 the Appeal Committee of the House of Lords also refused the applicants leave to appeal. | The applicants were associated with a small organisation which campaigned principally on environmental and social issues. The organisation launched an anti-McDonald’s campaign in the mid-1980s. In 1986 a six-page leaflet entitled “What’s wrong with McDonald’s?” was produced and distributed as part of that campaign. McDonald’s brought proceedings against the applicants claiming damages for libel. The applicants denied publication of the leaflet or that the meanings in it were defamatory. They were subsequently held liable for publication of the leaflet and leave to appeal to the House of Lords was refused. The applicants complained in particular that the proceedings and their outcome had constituted a disproportionate interference with their right to freedom of expression. |
611 | Freedom of expression (Article 10 of the Convention) | 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 Article 10 (freedom of expression) of the Convention. |
1,081 | Dismissal | I. THE CIRCUMSTANCES OF THE CASE 10. The first applicant was born in 1951 and lives in Šiauliai. The second applicant was born in 1962 and lives in Vilnius. The facts of the case, as submitted by the parties, may be summarised as follows. A. The first applicant 11. In 1974 the first applicant graduated from the Lithuanian Physical Culture Institute, qualifying as a certified sports instructor. 12. From 1975 to 1986 he was an employee of the Lithuanian branch of the Soviet Security Service (the KGB). After Lithuania declared its independence in 1990, he found employment as a tax inspector at the Inland Revenue. 13. On 31 May 1999 two authorities – the Lithuanian State Security Department and the Centre for Research into the Genocide and Resistance of the Lithuanian People – jointly concluded that the first applicant was subject to the restrictions provided under section 2 of the Law on the evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the present activities of former permanent employees of the organisation (“the KGB Act” – see paragraph 24 below). The conclusion confirmed that the first applicant had the status of a “former KGB officer” (see paragraphs 26- 27 below). On 2 June 1999 the first applicant was dismissed from the Inland Revenue on the basis of that conclusion. 14. The first applicant brought an administrative action against the security intelligence authorities, claiming that he had been engaged only in counterintelligence and ideology work while employed by the KGB, and that he had not been involved in the violation of individual rights by that organisation. He argued that his dismissal under section 2 of the KGB Act and the resultant inability to find employment were therefore unlawful. 15. On 9 September 1999 the Higher Administrative Court found that the conclusion of 31 May 1999 had been substantiated and that the first applicant was subject to the restrictions provided under section 2 of the KGB Act. In this respect, the court held that the applicant had the status of a “former KGB officer” within the meaning of the KGB Act, since he had occupied one of the positions mentioned in the list of 26 January 1999. 16. On 19 October 1999 the Court of Appeal dismissed the first applicant ’ s appeal. It found that he had not occupied a KGB position dealing only with criminal investigations and could not therefore benefit from the exceptions listed under section 3 of the KGB Act. B. The second applicant 17. On an unspecified date in the 1980s, the second applicant graduated from Vilnius University as a qualified lawyer. 18. From 11 February 1991 he worked as a prosecutor at the Office of the Prosecutor General of Lithuania, investigating primarily cases of organised crime and corruption. 19. On 26 May 1999 the Lithuanian State Security Department and the Centre for Research into the Genocide and Resistance of the Lithuanian People jointly concluded that from 1985 to 1991 the second applicant had been an employee of the Lithuanian branch of the KGB, that he had the status of a “former KGB officer” and that he was thereby subject to the restrictions provided under section 2 of the KGB Act. On 31 May 1999 the second applicant was dismissed from his job at the Office of the Prosecutor General on the basis of that conclusion. 20. The second applicant brought an administrative action against the security intelligence authorities and the Office of the Prosecutor General. He claimed that from 1985 to 1990 he had merely studied at a special KGB school in Moscow and that from 1990 to 1991 he had worked in the KGB as an informer for the Lithuanian security intelligence authorities and should therefore be entitled to benefit from the exceptions under section 3 of the KGB Act. He claimed that his dismissal under the Act and his resultant inability to find employment were unlawful. 21. On 6 August 1999 the Higher Administrative Court allowed the second applicant ’ s claim, quashed the conclusion of 26 May 1999 and ordered him to be reinstated. The court found that the period of the second applicant ’ s studies at the KGB school from 1985 to 1990 was not to be taken into account for the purposes of the KGB Act, that he had worked in the KGB for a period of five months in 1990-91, that he had not occupied a KGB position dealing with political investigations and that, in any event, he had been a secret informer for the Lithuanian authorities. The court concluded that the exceptions under section 3 of the KGB Act applied to the second applicant and that his dismissal had therefore been unlawful. 22. Following an appeal by the security intelligence authorities, on 25 October 1999 the Court of Appeal quashed the judgment of 6 August 1999. It held that, although the first-instance court had properly found that the second applicant had worked at the KGB for only five months, it had not been established that he had worked there as a secret informer for the Lithuanian authorities. Accordingly, he could not benefit from the exceptions under section 3 of the KGB Act. 23. The second applicant appealed against the Court of Appeal ’ s judgment. By a decision of 28 January 2000, the President of the Supreme Court allowed the appeal. However, by a final decision of 20 April 2000, the full Supreme Court refused to examine the appeal and discontinued the proceedings for lack of jurisdiction. | The applicants were both dismissed of their position of tax inspectors because of their previous occupation as KGB agents. They complained in particular that being banned from finding employment in the private sector from 1999-2009 on the ground that they had been former KGB officers was in breach of Articles 8 (right to respect for private life) and 14 (prohibition of discrimination) of the Convention. |
49 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1968 and lives in Vittorio Veneto. 7. The applicant entered into a relationship with D.P., an Austrian national, and lived together with her in Vittorio Veneto. Their daughter, who is an Italian and Austrian national, was born in December 2006. Under Italian law the applicant and D.P. had joint custody of her. 8. The relationship between the applicant and D.P. deteriorated and the latter left the family home on 31 January 2008, taking their daughter with her. 9. The applicant applied to the Venice Youth Court ( tribunale per i minorenni di Venezia ) for an award of sole custody of the child and asked the court to issue a travel ban prohibiting her from leaving Italy without his consent. 10. On 8 February 2008 the Venice Youth Court issued a travel ban in respect of the applicant ’ s daughter. On the same day the applicant learned that D.P. had left Italy with the child and had travelled to Austria, where she intended to take up residence. 11. On 23 May 2008 the Venice Youth Court lifted the travel ban in respect of the applicant ’ s daughter, granted preliminary joint custody of the child to both parents, and authorised her to reside with her mother in Austria, having regard to her young age and close relationship with her mother. It also appointed an expert who was entrusted with the task of collecting the necessary information for a final decision on custody. In addition, the court granted the applicant access rights twice a month in a neutral location, noting that the meetings should alternate between Italy and Austria and that the dates and arrangements should be agreed with the expert. 12. According to the applicant, D.P. brought their daughter to Italy only once. Visits took place in Austria, although D.P. did not facilitate their organisation. At a later date visits ceased, allegedly due to D.P. ’ s obstructive behaviour. In a report of 15 May 2009 the expert noted that she was not in a position to evaluate the applicant ’ s ability to take care of his daughter. 13. According to the Government the applicant met his daughter fifteen times in Austria, where supervised visits took place between October 2008 and June 2009. Subsequently, he refused to travel to Austria without giving any reasons. A. Proceedings under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) and proceedings in Austria concerning custody of the applicant ’ s daughter 14. The applicant applied for assistance to secure his daughter ’ s return under the Hague Convention. His application was forwarded via the respective central authorities in Italy and Austria to the Leoben District Court ( Bezirksgericht ), where proceedings began on 19 June 2008. Subsequently, the court appointed an expert. 15. On 3 July 2008, the Leoben District Court dismissed the applicant ’ s application for the return of the child under the Hague Convention. Referring to the expert ’ s opinion and having regard to the very young age of the child, the court found that her return would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention. 16. On 1 September 2008, the Leoben Regional Court ( Landes gericht ) set aside that decision because the applicant had not been duly heard in the proceedings. 17. On 21 November 2008 the Leoben District Court, having heard the applicant, again dismissed his application for his daughter ’ s return, referring to the Venice Youth Court ’ s decision of 23 May 2008. 18. On 7 January 2009 the Leoben Regional Court dismissed the applicant ’ s appeal, finding that returning the child to him and her separation from her mother would entail a grave risk of psychological harm within the meaning of Article 13(b) of the Hague Convention. 19. Meanwhile, in March 2009 D.P. brought proceedings before the Judenburg District Court, seeking an award of sole custody of the child. 20. On 26 May 2009 the Judenburg District Court held that it had jurisdiction with regard to custody, access and maintenance issues in respect of the child by virtue of Article 15(5) of EU Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (“the Brussels IIa Regulation”). 21. On 25 August 2009 the same court made a preliminary award of sole custody to D.P., referring to the child ’ s close links with Austria and the risk of danger to her well-being upon a possible return to Italy. 22. On 8 March 2010 the Judenburg District Court awarded D.P. sole custody of the child. B. Proceedings under the Brussels IIa Regulation concerning the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009 23. In the meantime, on 9 April 2009 the applicant made an application to the Venice Youth Court for his daughter ’ s return under Article 11(8) of the Brussels IIa Regulation. 24. In a judgment of 10 July 2009 the Venice Youth Court, having held a hearing, ordered the child ’ s return to Italy. The child would live with her mother, should the latter decide to return to Italy with her. In that event the Vittorio Veneto social services department was required to provide them with accommodation. In addition, a programme for the exercise of the applicant ’ s access rights would have to be established. If the child ’ s mother did not wish to return to Italy, the child was to reside with the applicant. 25. The Venice Youth Court found that it remained competent to deal with the case, as the Judenburg District Court had wrongly determined its jurisdiction under Article 15(5) of the Brussels IIa Regulation. It noted that its previous decision of 23 May 2008 had been designed as a temporary measure in order to re-establish contact between the applicant and his daughter through access rights and to obtain a basis for an expert opinion for the decision on custody of the child. However, the child ’ s mother had failed to co-operate with the appointed expert and had refused a programme of access rights for the applicant prepared by the expert. The latter had stated in her preliminary opinion that she was not in a position to answer all questions relating to the child ’ s best interests in a satisfactory manner. 26. On 21 July 2009 the Venice Youth Court issued a certificate of enforceability under Article 42 of the Brussels IIa Regulation. 27. On 22 September 2009 the applicant sought the enforcement of the Venice Youth Court ’ s judgment of 10 July 2009. He was represented by counsel in these and all subsequent proceedings. 28. On 12 November 2009 the Leoben District Court dismissed the applicant ’ s request for enforcement of the Venice Youth Court ’ s order to return the child. It noted that the child ’ s mother was not willing to return to Italy with her. However, the child ’ s return without her mother would constitute a grave risk for her within the meaning of Article 13(b) of the Hague Convention. 29. On 20 January 2010 the Leoben Regional Court quashed that decision and granted the applicant ’ s request for enforcement. 30. The Leoben Regional Court noted that under Article 11(8) of the Brussels IIa Regulation a judgment refusing return under Article 13 of the Hague Convention was irrelevant where the court which was competent pursuant to the Brussels IIa Regulation had ordered the child ’ s return in a subsequent judgment. It confirmed that the Venice Youth Court had been competent to issue the judgment of 10 July 2009, as D.P. had unlawfully removed the child from Italy and the applicant had immediately requested her return. Moreover, the applicant had submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation in respect of the judgment at issue. The Austrian courts therefore had to recognise the judgment and to enforce it. They were not to establish anew whether the child ’ s return would be contrary to her best interests. In any event, there was no indication that the circumstances had changed since the Venice Youth Court had given its judgment. It was for the court of first instance to order appropriate measures of enforcement. 31. D.P. lodged an appeal on points of law with the Supreme Court ( Oberster Gerichtshof ) on 16 February 2010. 32. On 20 April 2010 the Supreme Court requested a preliminary ruling by the Court of Justice of the European Union (CJEU), submitting a number of questions concerning the application of the Brussels IIa Regulation. 33. On 1 July 2010, the CJEU issued a preliminary ruling (C-211/10 PPU) confirming the jurisdiction of the Italian courts in the case and the enforceability of the Venice Youth Court ’ s judgment of 10 July 2009. It found, in particular, that : (1) a provisional measure [ such as the one issued by the Venice Youth Court in 2008] did not constitute a ‘ judgment on custody that does not entail the return of the child ’ within the meaning of Article 10(b) subparagraph (iv) of the Brussels IIa Regulation and could not be the basis of a transfer of jurisdiction to the courts of the Member State to which the child had been unlawfully removed; (2) Article 11(8) of the Regulation applied to a judgment of the court with jurisdiction ordering the return of the child, even if it was not preceded by a final judgment of that court relating to custody of the child; (3) Article 47(2) subparagraph (2) of the Regulation had to be interpreted as meaning that a judgment delivered subsequently by a court of the Member State of enforcement which made a provisional award of custody could not preclude enforcement of a certified judgment previously delivered by the court which had jurisdiction in the Member State of origin and had ordered the return of the child; and (4) enforcement of a certified judgment [ordering the child ’ s return] could not be refused by the Member State of enforcement because, as a result of a subsequent change of circumstances, it might be seriously detrimental to the best interests of the child. Such a change had to be pleaded before the court which had jurisdiction in the Member State of origin, which also had to hear any application to suspend the enforcement of its judgment. 34. On 13 July 2010 the Supreme Court dismissed D.P. ’ s appeal on points of law. It noted that according to the CJEU ’ s ruling the Austrian courts ’ only task was to take the necessary steps for the enforcement of the return order, without proceeding to conduct any review of the merits of the decision. If D.P. asserted that the circumstances had changed since the Venice Youth Court had given its judgment, she had to apply to that court, which would also be competent to grant such an application suspensive effect. 35. The Supreme Court noted that it was now for the first- instance court to enforce the Venice Youth Court ’ s judgment. In doing so, it had to take into account the fact that the Venice Youth Court had in the first place envisaged that the child should reside with her mother upon her return to Italy and had ordered the Vittorio Veneto social services department to make accommodation available for them. The first- instance court would therefore have to ask the applicant to submit appropriate evidence, in particular confirmation from the Venice Youth Court or Vittorio Veneto municipal council, that accommodation was indeed available. The first- instance court would then have to order the mother to return with the child within two weeks. Should she fail to comply within that time-limit, the first- instance court would, upon the applicant ’ s request, have to order coercive measures for the child ’ s return, while still giving the mother the opportunity to avoid such drastic measures by voluntarily returning to Italy with the child. 36. On 31 August 2010 the Venice Youth Court refused to grant an application by D.P. for the enforcement of its judgment of 10 July 2009 to be stayed. Referring to that decision, the applicant asked the Leoben District Court to order his daughter ’ s return to Italy. 37. The applicant claimed that he had offered to make accommodation (apparently a flat belonging to him) available to D.P. and his daughter, but that the Leoben District Court had found that this did not fulfil the conditions set by the Venice Youth Court in its judgment of 10 July 2009. 38. On 17 February 2011 the Leoben District Court asked the applicant to submit evidence that appropriate accommodation would be made available to his daughter and her mother by the Vittorio Veneto social services department, as required by the Venice Youth Court ’ s judgment of 10 July 2009. 39. By letter of 22 March 2011 the Austrian Federal Ministry of Justice, as Central Authority, informed its Italian counterpart accordingly and also noted that to date the condition had not been complied with. A similar letter was sent to the Italian Central Authority on 27 May 2011. Three further letters with similar content were sent to the Italian Central Authority prior to November 2011. C. Proceedings under the Brussels IIa Regulation concerning the enforcement of the Venice Youth Court ’ s judgment of 23 November 2011 40. By a judgment of 23 November 2011 the Venice Youth Court withdrew D.P. ’ s custody rights and awarded the applicant sole custody of the child. It further ordered the child ’ s return to Italy to reside with the applicant in Vittorio Veneto. The court ordered the Vittorio Veneto social services department – if need be in co-operation with the neuropsychiatry department of the local health authority – to ensure that contact between the child and her mother was maintained and to give the child linguistic and educational support in order to assist her integration into her new family and social environment. 41. The Venice Youth Court referred to its decision of 23 May 2008, which had been aimed at preserving the child ’ s relationship with her mother while re-establishing contact with the applicant, noting that such attempts had failed owing to a lack of co-operation from the mother. It had therefore ordered the child ’ s return to Italy in its judgment of 10 July 2009. It further considered that D.P. had unlawfully removed the child to Austria and had subsequently deprived her of contact with the applicant without good reason. She had thus acted contrary to the child ’ s best interests. It therefore found that sole custody was to be awarded to the applicant. Given that to date any attempts to establish contact step by step had failed, his daughter was to reside with him immediately. The court noted that this would entail a difficult transition for her, but considered that the damage caused by growing up without her father would weigh even heavier. The court considered that the social services department would have to give the child educational and linguistic support to help her settle in her new family and social environment and to maintain contact with her mother. Finally, the court considered that the child ’ s return would not entail any grave risk of psychological or physical harm within the meaning of Article 11 of the Brussels IIa Regulation, which in turn referred to Article 13 of the Hague Convention. 42. D.P. did not appeal against this judgment. 43. On 19 March 2012 the applicant notified the Leoben District Court of the Venice Youth Court ’ s judgment of 23 November 2011. He also submitted a certificate of enforceability under Article 42 of the Brussels IIa Regulation. 44. On 3 May 2012 the Leoben District Court dismissed the applicant ’ s request for enforcement of the Venice Youth Court ’ s order for the child ’ s return. Referring to the Supreme Court ’ s decision of 13 July 2010, it considered that he had failed to submit proof that appropriate accommodation would be made available for the child and her mother upon their return. 45. The applicant appealed. He submitted, in particular, that the Venice Youth Court ’ s judgment of 23 November 2011 had granted him sole custody of the child and had ordered her return to Italy, where she was to reside with him. 46. On 15 June 2012 the Leoben Regional Court granted the applicant ’ s appeal and ordered D.P. to hand the child over to the applicant within fourteen days, noting that enforcement measures would be taken in case of failure to comply. 47. The Regional Court found that the condition that appropriate accommodation be made available to the child and the mother was no longer valid: in its judgment of 23 November 2011 the Venice Youth Court had awarded sole custody of the child to the applicant and had ordered that she return to reside with him. The applicant had submitted that judgment together with a certificate of enforceability under Article 42 of the Brussels IIa Regulation. The mother ’ s obligation to return the child to the applicant thus resulted directly from the Venice Youth Court ’ s judgment of 23 November 2011. Finally, the Leoben Regional Court noted that the award of custody made by the Judenburg District Court on 8 March 2010 could not prevent the enforcement of the Venice Youth Court ’ s judgment. The latter had retained its competence to rule on custody matters, as D.P. had unlawfully removed the child to Austria and the applicant had made a timely request for her return under Article 10 of the Brussels IIa Regulation. 48. D.P. did not comply with the return order. She lodged an extraordinary appeal on points of law with the Supreme Court. 49. On 13 September 2012 the Supreme Court rejected D.P. ’ s extraordinary appeal on points of law, as the case did not raise an important legal issue. It noted that the return order had become final and was enforceable. The first-instance court now had no other task than to define the steps to be taken to enforce the return order. The CJEU had clarified that where there was a certificate of enforceability under Article 42(1) of the Brussels IIa Regulation, the requested court had to proceed with the enforcement of the main judgment. Any questions relating to the merits of the return decision, in particular the question whether the requirements for ordering a return had been met, had to be raised before the courts of the requesting State in accordance with the laws of that State. Consequently, any change in circumstances affecting the issue of whether a return would endanger the child ’ s well-being had to be raised before the competent court of the requesting State. D.P. ’ s argument that the child ’ s return would lead to serious harm for her and entail a violation of Article 8 of the Convention was therefore not relevant in the proceedings before the Austrian courts, but rather had to be raised before the competent Italian courts. 50. On 1 October 2012 the Leoben District Court held that it was not competent to conduct the enforcement proceedings and transferred the case to the Wiener Neustadt District Court, apparently on account of a change of residence by D.P. and the child. 51. On 4 October 2012 the Wiener Neustadt District Court issued a decision on the next steps to be taken in the enforcement proceedings. The judge noted, in particular, that a continuation of the path chosen by both parents, namely the use of the child in the conflict between them, would lead to the child being traumatised, especially if the parents ’ unbending position eventually led to an enforcement of the return order by coercive measures as a last resort. He noted that the best interests of the child required the parents to reach a workable compromise. The judge therefore proposed that a hearing in the presence of both parents be held in order to seek a constructive solution. Accordingly, he asked both parents to indicate within two weeks whether they were ready to take part in the proposed hearing. The judge further noted that if the parents were not willing to take part in the hearing, the enforced return of the child would be arranged. In this connection, the judge stated that any trauma suffered by the child because of such enforcement would then have to be laid at the door of the parents. Moreover, the applicant would be required to find a way to deal with the trauma caused to the child. 52. On 16 October 2012 the applicant informed the Wiener Neustadt District Court that he was not ready to take part in a hearing with the child ’ s mother, but wanted to arrange the return of the child with the least traumatic impact possible. He therefore suggested that he come to Austria with his parents to pick up the child or, alternatively, that D.P. travel to Italy with the child to hand her over. He therefore asked D.P. to either set a pick-up date in Austria or to inform him of a date when she would bring the child to Italy. 53. On 23 October 2012 D.P. informed the District Court that she was ready to take part in the proposed hearing. She also informed the court that she had appealed against the decision which had transferred the case from the Leoben District Court to the Wiener Neustadt District Court. Consequently, the decision establishing the latter court ’ s competence had not become final. She therefore asked the court to await the decision on her appeal before taking any further steps. 54. In the related case brought before the European Court of Human Rights by the mother of the child ( Povse v. Austria (dec.), no. 3890/11, 18 June 2013), the Court granted a request for interim measures on 4 December 2012. It asked the Government to stay the child ’ s return to Italy. Having obtained information from the Austrian and Italian Governments and from the applicants, the Court lifted the interim measure on 18 February 2013. 55. On 4 April 2013 the applicant ’ s counsel requested that the enforcement proceedings be continued. 56. On 25 April 2013 the Wiener Neustadt District Court decided to continue the enforcement proceedings and, on 30 April 2013, requested that the parties submit their views within two weeks in order to reach a comprehensive solution for the benefit of the child. According to the Government, the applicant refused to contribute to that process. 57. In a decision of 20 May 2013 the Wiener Neustadt District Court ordered D.P. to hand over the child to the applicant by 7 July 2013 and stated that in case of failure to comply coercive measures would be applied. The District Court noted that it was for D.P. to choose whether she would accompany her daughter to Italy or whether she would set a date within that timeframe for the applicant to pick up the child in Austria. Furthermore, the District Court, referring to the Supreme Court ’ s judgment of 13 September 2012, repeated that it was for the Italian courts to examine any issues relating to the child ’ s well-being. It noted finally that the deadline for handing over the child had been set in such a way as to allow her to finish the school year in Austria. 58. As D.P. did not comply with the order to hand over the child, an attempt to enforce it by means of coercive measures was made in the early hours of 24 July 2013 without prior notice. The attempt, in which the judge, trained bailiffs and police officers participated, was unsuccessful, as D.P. and the child were not present at their place of residence. The applicant had been informed of the planned enforcement and was present. 59. On 9 August 2013 D.P. asked the Venice Youth Court to stay the enforcement of its judgment of 23 November 2011. Furthermore, she sought an award of sole custody in her favour. She alleged that she had not been adequately heard in the initial proceedings. Furthermore, she asserted that there had been a change of circumstances, in that her daughter was fully integrated into her living environment in Austria and had formed bonds with D.P. ’ s family, consisting of her mother, the latter ’ s partner and her younger half-brother. There had been no contact between father and child for a lengthy period and the child had no knowledge of Italian. D.P. submitted an expert opinion, according to which the child ’ s return to her father through the use of coercive measures would cause serious harm to the child. 60. On 14 August 2013 the Wiener Neustadt District Court dismissed D.P. ’ s application for a stay of enforcement, but decided to provisionally refrain from returning the child until the Venice Youth Court gave a decision on D.P. ’ s action before it. 61. In his observations of 18 October 2013 the applicant claimed that he had not yet been duly notified of the fresh proceedings before the Venice Youth Court. The Government, in their submissions of 18 November 2013, stated that the proceedings were pending before the Italian courts and that the parties had been notified of the dates of hearings. Moreover, the Government submitted that the applicant had not taken advantage of numerous opportunities to re- establish communication between himself and his daughter. 62. According to information provided by the applicant in a letter of 17 November 2014, the Venice Youth Court held hearings in January and April 2014 in the presence of both parents and fixed a series of meetings between the applicant and his daughter. A number of meetings took place between February and May at intervals of three weeks in Austria and then in June in Italy. The mother of the child was present at the meetings and on some occasions also her partner. The applicant alleges that on two occasions the mother ’ s partner threatened him and disrupted the meetings. According to the applicant meetings which had been scheduled for July and August 2014 did not take place as the mother refused to bring the child to Italy. The Venice Youth Court held a further hearing on 29 September 2014 and scheduled further meetings in Italy between the applicant and his daughter for December 2014 and January 2015. The proceedings before the Italian courts are still pending. | The applicant’s partner removed their daughter from Italy, where the family lived, to Austria in February 2008. He complained about the Austrian courts’ failure to enforce two judgments by Italian courts ordering the return of his daughter to Italy. |
999 | Right to a fair trial (Article 6 of the Convention) | I. THE CIRCUMSTANCES OF THE CASES A. Facts relating to application no. 40575/10 B. Facts relating to application no. 67474/10 C. The operation of international sports arbitration 1. Rules on the appointment of ICAS members, as in force at the material time 2. Rules on the designation of CAS arbitrators, as in force at the material time 3. Subsequent amendments to the rules on the appointment of CAS arbitrators III. INTERNATIONAL MATERIAL Rules of the International Court of Arbitration | This case concerned the lawfulness of proceedings brought by professional athletes before the Court of Arbitration for Sport (CAS). The applicants, a professional footballer and a professional speed skater, submitted in particular that the CAS could not be regarded as an independent and impartial tribunal. The second applicant also complained that she had not had a public hearing before the International Skating Union disciplinary board, the CAS or the Swiss Federal Supreme Court, despite her explicit requests to that end. |
161 | Sterilisation operations | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1968 and 1966 respectively and live in Ștefan Vodă. They are husband and wife. A. The first applicant ’ s sterilisation and its effects 7. On 4 May 2000 the first applicant was giving birth to a child. The head of the obstetrics and gynaecology department of the Ştefan-Vodă regional hospital, Mr B., performed a Caesarean section on her. During the procedure he removed her ovaries and Fallopian tubes, without obtaining her permission. As a result of the operation, the first applicant, who was thirty-two at the time, suffered an early menopause. 8. Since 2001 the first applicant has been having medical treatment designed to counteract the effects of the early menopause, including hormone replacement therapy. According to her doctors, she has to continue such treatment until she is between fifty-two and fifty-five years old, after which further treatment will be required. 9. According to a neurology report dated 5 November 2001, the first applicant was suffering from astheno-depressive syndrome and osteoporosis. On 18 February 2002 the doctors found that the first applicant experienced hot flushes, neurosis and frequent heart palpitations. On 8 May 2002 she was diagnosed with asthenic neurosis. 10. According to the results of an examination carried out by a medical panel on 18 March 2003, the removal of the first applicant ’ s ovaries and Fallopian tubes had been unnecessary and the surgery had resulted in her being sterilised. 11. On 26 July 2006 a psychiatrist and a psychologist established that the first applicant was suffering from long-term psychological problems and that she continued to show signs of post-traumatic stress disorder. B. Criminal proceedings against the doctor 12. On 15 March 2005 the Căuşeni District Court convicted B. of medical negligence which had caused severe damage to the health and bodily integrity of the victim. He was sentenced to six months ’ imprisonment, suspended for one year. The court referred to medical reports and found, inter alia, that B. had failed to inform the applicants of the sterilisation until ten days after the event. The first applicant ’ s ovaries could have been preserved, but B. had failed to do so. 13. On 11 May 2005 the Bender Court of Appeal upheld that judgment. 14. On 2 August 2005 the Supreme Court of Justice quashed the lower courts ’ judgments and adopted its own judgment, finding B. guilty but absolving him of criminal responsibility because the limitation period for sentencing him had expired. C. Civil proceedings initiated by the applicants 15. On an unknown date in March 2007 the applicants started civil proceedings against the Ştefan-Vodă regional hospital and B., claiming compensation for the damage caused, comprising 9,909 Moldovan lei (MDL – approximately 587 euros (EUR) at the time) for pecuniary damage, MDL 1 million (EUR 59,7 40 ) for the first applicant and MDL 100,000 (EUR 5,97 4 ) for the second applicant in respect of non-pecuniary damage, and MDL 2,700 (EUR 160) for legal costs. They also sought a court order for the hospital to provide the first applicant with free treatment for as long as her condition required, as prescribed by her doctors. The applicants ’ lawyer provided detailed explanations and evidence in support of each of these claims, including various medical reports, the cost of medical consultations, laboratory analyses and treatment undertaken by the first applicant, and the findings of the criminal courts in the case against B. 16. On 18 September 2007 the Căuşeni District Court accepted the applicants ’ claims in part, referring to the findings of the criminal courts and the medical evidence in the file. It ordered the hospital to provide the first applicant with the requisite medication until the year 2020. The court also awarded MDL 1,119 (EUR 69) to the applicants for pecuniary damage, as well as MDL 5,000 (EUR 306 ) to the first applicant and MDL 1,000 (EUR 61) to the second applicant in respect of non-pecuniary damage. In this latter connection, the court found that B. had voluntarily compensated the applicants for the pecuniary losses they had incurred and that awarding sums as large as those claimed by the applicants would have seriously affected the activities of the (State-owned) hospital. 17. On 24 January 2008 the Chişinău Court of Appeal partly quashed that judgment, increasing the award for non-pecuniary damage to the first applicant to MDL 10,000 (EUR 607) plus MDL 1,237 (EUR 75) for costs. The court observed that, under the applicable legal provisions, the size of an award of compensation for non-pecuniary damage was to be determined by taking into consideration the circumstances of the case, including the nature and seriousness of suffering caused to the victim, the degree of guilt of the person who had caused the suffering, and the degree to which such compensation could bring about just satisfaction for the victim. The court referred to the findings of the criminal courts in the case against B., as well as the first applicant ’ s medical reports (see paragraph 10 above). 18. The applicants lodged an appeal on points of law, arguing inter alia that the lower courts had not given sufficient reasons for making such a nominal award, which had not offered them redress for the violation of their rights. They referred to the various medical reports confirming that, besides the long-lasting psychological effect on the first applicant resulting from being permanently sterilised without her knowledge or consent, she continued to suffer from health problems which required constant medical treatment. 19. In a final judgment of 24 September 2008 the Supreme Court of Justice upheld the judgment of 24 January 2008, essentially repeating the arguments of the lower court. 20. The award in the applicants ’ favour was enforced in March 2009. | Giving birth to a child in May 2000, the first applicant, aged 32 at the time, had a Caesarean section, during which the obstetrician removed her ovaries and Fallopian tubes without obtaining her permission. She has been in treatment to counteract the effects of early menopause since 2001 and has had health problems ever since, including depression and osteoporosis. The courts found the obstetrician guilty of medical negligence, but eventually absolved him of criminal responsibility in 2005. The first applicant and her husband (the second applicant) brought civil proceedings against the hospital and the obstetrician, and were awarded damages in the amount of 607 euros. Before the Court, they complained of the first applicant’s sterilisation and of the low amount of compensation they had been awarded. |
825 | Right to vote (Article 3 of Protocol No. 1) | 3. The first applicant was born in 1966. He lives in Frederiksberg. The second applicant was born in 1987. He lives in Greve. The applicants were represented by Mr Christian Dahlager, a lawyer practising in Copenhagen. 4. The Government were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co-Agent, Mrs Nina Holst-Christensen, from the Ministry of Justice. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The first applicant was declared legally incompetent to manage his financial and personal affairs by the Copenhagen City Court ( Københavns Byret ) on 20 March 1984, as the conditions for declaring him legally incompetent under sections 2(1)(i) and 46 of the then applicable Act on Legal Competence ( myndighedsloven ) and part 43 of the Administration of Justice Act ( retsplejeloven ) were found to have been met. 7. In 1996, the Act on Legal Competence was replaced by the Guardianship Act ( værgemålsloven ), which distinguished between (i) persons who under the Act’s section 5 were subject to guardianship but remained legally competent, and (ii) persons who were both subject to guardianship under section 5 and had been deprived of their legal capacity under section 6. Only those who had been deprived of their legal capacity under section 6 were to be considered legally incompetent. 8. The second applicant was placed under financial guardianship and deprived of his legal capacity by order of the District Court of Roskilde ( Retten i Roskilde ) on 23 March 2009. The District Court gave the following reasoning: “On the basis of the [submitted] medical certificate, it is considered a fact that [the second applicant] is unable to manage his financial affairs because of mental disability, for which reason he requires financial guardianship and requires to be deprived of his legal capacity in order to prevent him from incurring more debt. Accordingly, the conditions for financial guardianship set out in section 5(1) of the Guardianship Act and the conditions for deprivation of legal capacity set out in section 6(1) of the Guardianship Act have been met. For that reason, an order for financial guardianship and deprivation of legal capacity is granted.” 9. Under section 29 of the Constitution, and section 1 of the Danish Act on Parliamentary Elections, persons who were legally incompetent did not have the right to vote in general elections. 10. Consequently, the applicants were not entitled to vote, inter alia, in the parliamentary elections that took place on 18 June 2015. 11. By a statutory amendment (Act no. 391 of 27 April 2016), persons who were legally incompetent were given the right to vote in European Parliament elections and in local and regional elections, but not in national parliamentary elections. 12. The applicants, joined by two other persons, instituted proceedings before the Danish courts, claiming that they had wrongfully been denied the right to vote in the parliamentary elections on 18 June 2015. They relied, inter alia, on Article 3 of Protocol No. 1 to the Convention, both taken alone and in conjunction with Article 14 of the Convention. 13. The Danish Ministry of Social Affairs and the Interior ( Social- og Indenrigsministeriet ), against whom the above-mentioned proceedings were brought, contested the claims. 14. Before the High Court of Eastern Denmark ( Østre Landsret ), a written statement submitted by the first applicant was read out. According to that statement, as read out by the first applicant’s mother: “He suffered brain damage after being immunised during his first year [of life]. He currently lives at the Egmont folk high school [ Højskolen ] in Hou. He is able to write with [the help of a third party supporting his] hand and wrote the statement because, unfortunately, he was not able to travel from Jutland to attend the trial hearing. For many years, he has had to share a single vote in general elections with his mother, who is his guardian. They have not always had the same perception of the political landscape. It is humiliating for him not to have the right to cast his own vote, and he would therefore be very pleased if judgment were to be delivered in his favour. According to his papers, he was deemed to be unteachable. However, neuropsychologists and occupational therapists have now been persuaded [that he has some] intellect. He asks for justice.” 15. Before the High Court, the second applicant stated: “He lives in Greve in his own flat, which is part of a group home. A mentor comes every Wednesday to help him clean, do grocery shopping and read his mail. He is thirty-five years old [sic]. He works on the Glad Foundation reception desk every day from 8 a.m. until usually 2 p.m. or 3 p.m. There are always two employees at work on the reception desk, and on Fridays there are three. He felt sad and disappointed about not being allowed to vote in the general elections in June 2015, when everybody else was allowed to. He feels like an outcast from society. He reads the Metroexpress newspaper and is interested in politics. He watches the TV2 news before going to work, and he watches the “TV-Avisen” news on the DR1 channel in the evening. He was deprived of his legal capacity because it is difficult for him to manage his financial affairs. He requested a guardian himself. He asked his mentor to organise the [relevant] paperwork that had to be submitted to the State Administration ( Statsforvaltningen ). Later the case was heard in court.” 16. In its judgment of 29 June 2017, the High Court dismissed the claim. The High Court gave the following reasoning: “...The provisions of the Constitution [regarding the right to vote] (previously section 35 and section 30, and now section 29) have continuously been construed by the legislature to mean that persons deprived of their legal capacity under section 2 and section 34 of the former Act on Legal Competence and, since the effective date of the Guardianship Act, under section 6 of the Guardianship Act, do not have the right to vote in general elections. This understanding also seems to be supported to a predominant extent in printed legal literature on the subject. The High Court concurs with this understanding of section 29 of the Constitution and finds, without taking into account the significance of Denmark’s international obligations, that there is no basis for a different interpretation of the provision. ... Accordingly, and since the High Court finds that the provisions of the international conventions acceded to by Denmark and relied upon by the plaintiffs and the intervener do not imply that the very limited number of persons deprived in full of their legal capacity by a court order under section 6 of the Guardianship Act, but who otherwise meet the conditions for suffrage in general elections, also have an absolute and unconditional right to vote in general elections, and since such legal status is not recognised in the judgments of the Court relied upon by the parties and the intervener, the High Court finds for the Ministry of [Social] Affairs and the Interior.” 17. The applicants appealed against the judgment to the Supreme Court, which by a judgment of 18 January 2018, upheld the decision of the High Court. The Supreme Court gave the following reasoning: “The right to vote (claims 1 and 2) Under section 29 of the Constitution, persons declared ‘legally incompetent’ do not have the right to vote in general elections. For the reasons given by the High Court, the Supreme Court concurs with the view that persons deprived of their legal capacity under section 6 of the Guardianship Act must be considered legally incompetent within the meaning of the Constitution, for which reason they do not have the right to vote in general elections. Section 1 of the Parliamentary Elections Act is worded accordingly. Notwithstanding Denmark’s international obligations, the Supreme Court cannot allow the appellants’ arguments that section 1 of the Parliamentary Elections Act is inapplicable and that they had the right to vote in the 2015 general election. The Supreme Court therefore concurs with the judgment delivered by the High Court in favour of the Ministry of [Social] Affairs and the Interior as regards claims 1 and 2. Entitlement to compensation (claim 3) The question is now whether the appellants’ rights under, in particular, the European Convention for the Protection of Human Rights and Fundamental Freedoms were violated and, if so, whether the appellants are entitled to compensation. Under Article 3 of Protocol No. 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Contracting States undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. According to the case-law of the European Court of Human Rights, this provision guarantees individuals the right to vote and to stand for election, but this right is not absolute, and the Contracting States must be allowed a margin of appreciation in that sphere – see in this respect, inter alia, paragraph 115 of the judgment delivered on 16 March 2006 in Ždanoka v. Latvia (application no. 58278/00) and paragraphs 57 and 62 of the judgment delivered on 6 October 2005 in Hirst v. the United Kingdom (no. 2). It furthermore appears from those judgments that restrictions on the right to vote should not automatically adhere to the same criteria as those applied with regard to interference with other Convention rights; that interference must be necessary in a democratic society. However, restrictions on the right to vote must not be arbitrary or disproportionate, or thwart the free expression of the people in the choice of the legislature. When determining whether a restriction on the right to vote is compatible with the Convention, the European Court of Human Rights takes into account whether the restriction pursues a legitimate aim and whether it is proportionate to that aim. In the judgment of 20 May 2010 in Alajos Kiss v. Hungary, which concerned a provision of the Hungarian Constitution providing that persons placed under total or partial guardianship did not have the right to vote, the European Court of Human Rights was satisfied that the restriction pursued a legitimate aim. That aim was to ensure that only citizens capable of assessing the consequences of their decisions and of making conscious and judicious decisions should participate in public affairs. The European Court of Human Rights found, however, that the Hungarian measure was disproportionate, for which reason it constituted a violation of Article 3 of Protocol No. 1. In making that assessment, the European Court of Human Rights took into account the fact that the Hungarian Constitution did not distinguish between persons under total and persons under partial guardianship, and that there was no evidence that the competing interests had been weighed in order to assess the proportionality of the restriction. It furthermore appears from the judgment that 0.75% of the Hungarian population of voting age had been disenfranchised on account of being under guardianship, that the European Court of Human Rights considered that that was a significant figure, and that it could not be claimed that the restriction on the right to vote was negligible in its effects. The European Court of Human Rights found that the absolute disenfranchisement of all persons under partial guardianship without due consideration being given to [the degree of] their mental disability did not fall within an acceptable margin of appreciation, referring, inter alia, to the fact that the margin of appreciation allowed the Contracting States is substantially narrower if disenfranchisement applies to a particularly vulnerable group in society and that weighty reasons are required for such disenfranchisement. When the applicant lost his right to vote as a consequence of the automatic disfranchisement imposed, without access to any remedy, on persons under partial guardianship, he suffered a violation, for which reason the European Court of Human Rights did not speculate as to whether the applicant would still have been deprived of the right to vote even if a more limited restriction on the rights of the mentally disabled had been imposed, in line with the requirements of Article 3 of Protocol No. 1. The European Court of Human Rights also said that the treatment of those with intellectual or mental disabilities as a single class constituted a questionable classification and that the curtailment of their rights must be subject to strict scrutiny. The indiscriminate removal of voting rights without an individualised judicial evaluation and solely on the basis of a mental disability necessitating partial guardianship could therefore not be considered to constitute legitimate grounds for restricting the right to vote. The Alajos Kiss judgment is the only judgment on disenfranchisement imposed as a consequence of guardianship, except for the judgments delivered by panels of three judges on 23 September 2014 in Gajcsi v. Hungary and on 21 October 2014 in Harmati v. Hungary, in which cases the Hungarian government did not dispute the alleged violation of the Convention. The Supreme Court finds that the purpose of disenfranchising legally incompetent persons under section 29 of the Constitution falls within the framework of a measure deemed to pursue a legitimate aim, as set out by the European Court of Human Rights in Alajos Kiss. The question is now whether the requirement of proportionality has been met. The first condition that must be met in order to deprive a person of his or her legal capacity under section 6 of the Guardianship Act is that the person must be unable to manage his or her own affairs owing to mental unsoundness or mental disability, etc. (see section 5), and the second condition is that a legal incapacitation order be necessary to prevent the person in question from exposing his or her assets, income or other financial interests to the risk of major loss, or to prevent financial exploitation. Persons subject to guardianship solely under section 5 are legally competent, whereas persons also deprived of their legal capacity under section 6 are legally incompetent. It follows from section 8(1) that a person cannot be deprived of his or her legal capacity if his or her interests can be sufficiently guarded through guardianship under section 5. As opposed to persons who are only subject to guardianship under section 5, persons deprived of their legal capacity under section 6 need more than a guardian to guard their interests; they are often persons who act contrary to their own best interests or risk being exploited by others. Under section 10, a legal incapacitation order must be quashed if the prescribed conditions are no longer met. The legal incapacitation order in respect of [one of the two additional persons who joined the proceedings] has been quashed, in accordance with that provision, and he is now solely subject to guardianship under section 5 and consequently now has the right to vote in general elections. Accordingly, strict requirements must be met in order to deprive a person of his or her legal capacity and to maintain in effect such a legal incapacitation order, and such requirements are closely related to the issue of whether the person in question is able to foresee the consequences of his or her decisions and to make conscious and judicious decisions. The Guardianship Act, which was enacted in 1996, reduced the group of persons declared legally incompetent and consequently disenfranchised in general elections as compared with the group similarly disenfranchised under the former Danish Act on Legal Competence ( myndighedsloven ). In 1990, just under 3,300 persons had been declared legally incompetent, and in December 2017 about 1,850 persons had been deprived of their legal capacity. Danish Act no. 391 of 27 April 2016 gave persons deprived of their legal capacity the right to vote in European Parliament elections and in local and regional elections. It appears from the preparatory notes to the Act that it was intended to bestow upon this group of individuals the right to vote to the extent possible under the Constitution. The restriction on the right to vote set out in section 29 of the Constitution therefore reflects an arrangement [ ordning ] that is considerably narrower than the Hungarian measure deemed by the European Court of Human Rights in respect of Alajos Kiss to be disproportionate. The Supreme Court finds that it follows from that judgment that an arrangement imposing a more limited restriction on the right to vote of persons suffering from a mental disability as compared with the then applicable Hungarian measure might be compatible with Article 3 of Protocol No. 1. It cannot be inferred from the judgment that in order for a restriction on the right to vote of persons deprived of their legal capacity to be considered compatible with Article 3 of Protocol No. 1, a specific and individual assessment must always have been made of the relevant person’s mental capacity to exercise the right to vote. The Supreme Court observes in this respect, as did the High Court, that a specific and individual assessment of whether a person’s mental capacity is sufficient [for that person] to exercise the right to vote may give rise to concern. The case-law of the European Court of Human Rights concerning restrictions on the right to vote and on eligibility to stand for election for reasons other than mental disability also supports the view that a specific and individual assessment is not always required to deprive a person of his or her right to vote – see in this respect paragraphs 112 and 114 of the judgment delivered in Ždanoka v. Latvia and paragraphs 98, 99 and 102 of the judgment delivered on 22 May 2012 in Scoppola v. Italy (no. 3). The Supreme Court also observes that it follows from the legislation on elections and the constitutions of a number of other European countries that persons deprived of their legal capacity do not have the right to vote [it appears from the transcript that the Supreme Court referred to a report by the European Union Agency for Fundamental Rights of 21 May 2014 “The right to political participation for persons with disabilities: human rights indicators”, see paragraph 71 below]. Against this background, the Supreme Court finds no basis for ruling that the arrangement set out in section 29 of the Constitution is contrary to Article 3 of Protocol No. 1 or to Article 14 read in conjunction with Article 3 of Protocol No. 1. The Supreme Court also finds, as was also found by the High Court, that there is no basis for ruling that section 29 of the Constitution is contrary to the Convention on the Rights of Persons with Disabilities. For this reason alone, the appellants are not entitled to compensation.” 18. The Supreme Court judgment attracted renewed focus among politicians on the situation of persons who were both subject to guardianship and had been deprived of their legal capacity, and who did not have the right to vote in general elections. Consequently, several parties that were not government parties at that time introduced private members’ bill no. B 71, which sought that fewer persons subject to guardianship should be excluded owing to their disability from the right to vote in general elections. At the first reading of the bill in Parliament, the then Minister of Justice expressed the view that the bill served a commendable purpose, and he promised to examine the possibility of excluding fewer persons subject to guardianship from the right to vote in general elections. After the reading of the bill, a report was published saying that the Parliamentary Committee on Social Affairs, the Interior and Children ( Social-, Indenrigs- og Børneudvalget ) looked forward to discussing with the Government the outcome of the analytical work launched by the Government. 19. In the light of this report, the Ministry of Justice carried out an analysis of the rules within this field. On 3 October 2018, the Ministry of Justice concluded, on the basis of that analysis, that section 29 of the Constitution did not constitute a bar to an amendment to or repeal of the guardianship rules aimed at allowing some of those persons who had been deprived of their legal capacity to again be allowed to manage their own assets in full or in part. The opinion of the Ministry of Justice was that a person subject to guardianship who was barred only in part from managing his or her assets was not “legally incompetent” within the meaning of the Constitution and could therefore retain the right to vote in general elections. 20. Against that background, the then Minister of Justice introduced a bill to amend the Guardianship Act and the Parliamentary Elections Act; that amendment was passed by Parliament on 20 December 2018 and entered into force on 1 January 2019. The following appears from the explanatory notes to the bill: “The first purpose of the bill is to introduce the possibility of depriving a person [only] partially of his or her legal capacity, one of the consequences being that such a person will retain the right to vote in general elections. Therefore, it is the opinion of the Government that, according to the principles of democracy, the group of persons with suffrage in elections to a body elected by the people ought to be as wide as possible. The Government wishes to bestow the right to vote in nationwide elections in Denmark upon as many citizens as possible – [including] persons subject to guardianship – within the framework of the Constitution. ... It appears from paragraph 2.4 of the report that as long as a group of persons are deprived of the right to manage their assets, it is a consequence of section 29 of the Constitution that those persons are barred from voting in general elections. It therefore requires an amendment to the Constitution if the deprivation of a person’s legal capacity is not to lead to disenfranchisement. However, section 29 of the Constitution is not a bar to an amendment to or repeal of the guardianship rules to the effect that some of the persons deprived of their legal capacity today would again be allowed to manage their own assets in full or in part. However, in the opinion of the Ministry of Justice, such an arrangement must not have as a consequence [the scenario] that persons in need of the protection afforded by the deprivation of their legal capacity would be left in a situation in which they risked being exposed to financial exploitation or ... a potential risk of losing their assets. It is observed that the group of around 1,900 persons who have been deprived of their legal capacity is a particularly vulnerable population group. It is the opinion of the Ministry of Justice that it would constitute a major impairment of the protection of those persons if the possibility of depriving them of their legal capacity were to be abolished entirely. In such a case, those persons would no longer be prevented from entering into legal transactions and incurring financial commitments, even though they are not able to understand the consequences, thereby exposing their assets to risk. The relevant persons might also risk financial exploitation. Therefore, the Ministry of Justice cannot recommend the full abolition of the possibility of depriving them of their legal capacity. ...” 21. Accordingly, it was the assessment of the Ministry of Justice that the proposed possibility of the partial deprivation of legal capacity was most compatible with the aim of allowing as many citizens as possible the right to vote while protecting a small group of citizens in need of such protection by depriving them of their legal capacity. 22. In the light of the above, the statutory amendment introduced the possibility of the partial deprivation of legal capacity. Thereby it became possible to limit an order restricting a person’s legal incapacity to comprise only particular assets or affairs, such as credit purchase transactions or taking out loans, or to specifying a maximum amount of agreements into which such a person could enter. Persons deprived only partially of their legal capacity remain legally competent and thus retain the right to vote in general elections. Only persons fully deprived of their legal capacity do not have the right to vote in general elections. 23. The first applicant lodged an application with a district court for a change to his guardianship status following the statutory amendment. On 20 May 2019, the order regarding his legal incapacitation was quashed in its entirety, and he was consequently granted the right to vote in general elections. 24. The second applicant also lodged an application for a change to his guardianship status. He is still subject to guardianship, but by a district court order of 9 November 2019, he was only partially deprived of his legal capacity pursuant to section 6(2)(2) of the Guardianship Act. Consequently, he was granted the right to vote in general elections. | This case concerned the disenfranchisement of the applicants, in 1984 and 2009 respectively, as a result of their having had their legal capacity removed. The applicants, who both regained the right to vote in general elections in 2019, complained that they had been illegally disenfranchised. |
178 | Right to life (Article 2 of the European Convention on Human Rights) | 2. The applicants are Ms Y, who was born in 1948 and lives in Sofia, and her two granddaughters, Ms X and Ms Z, who were born in 2007 and 2012 respectively and also live in Sofia. In October 2017 Ms Y was appointed legal guardian of her two granddaughters. The applicants were represented by Ms A. Kachaunova, a lawyer practising in Sofia and working with the Bulgarian Helsinki Committee. 3. The Government were represented by their Agents, Ms S. Sobadzhieva and Ms M. Dimitrova of the Ministry of Justice. INTRODUCTION 4. On 18 August 2017 Mrs V., who was born in 1975 and was the daughter of the first applicant and mother of the second and third applicants, was shot dead in a café in Sofia by her husband, Mr V., who was born in 1953, from whom she had de facto separated in 2014. MR AND MRS V.’S MARRIAGE 5. Mr and Mrs V. got married in April 2009. For Mr V. this was a second marriage; he had two sons from his previous one. The couple had two daughters (the second and third applicants) who were born in 2007 and 2012 respectively. In 2014 the spouses fell out with each other and stopped living together. 6. The two daughters remained with Mrs V., and all three of them lived with her mother (the first applicant) in the first applicant’s flat. MRS V.’S COMPLAINTS TO THE POLICE ABOUT MR V. 7. During the two years preceding the shooting on 18 August 2017, Mrs V. complained to the authorities of threatening conduct by Mr V. on several occasions. Incidents on 4, 5 and 14 November 2016 8. Mrs V. first complained to the police on 14 November 2016. Some time after 9 p.m., she called the national emergency number 112 to report that the tyres of her car, which had been parked in front of a community cultural centre where she had been dancing from 8 to 9 p.m. that day, had been slashed. At 9.52 p.m. her call was relayed to the police department in Sofia in charge of the area, and they dispatched a patrol. Mrs V. told the officers that she suspected that the tyres had been slashed by Mr V. 9. As instructed by the officers, later that evening Mrs V. went to the police station to make a written complaint. In a deposition accompanying her complaint she stated that she suspected that the tyres had been slashed by Mr V., from whom she had been de facto separated for about two and a half years, because a few days earlier, on 4 November 2016, they had had a row in the course of which he had made death threats against her in her home, in front of her mother (she quoted him as having said: “I will not give you a divorce; I will shoot you! I will leave the children without a mother!”). She went on to say that Mr V. legally owned a handgun, and that she thus feared for her life. She then added that the morning after that row, on 5 November 2016, the exhaust pipe of her car, which had been parked in front of her home, had been filled with polyurethane foam, which she also suspected had been done by Mr V. Mrs V.’s allegations were confirmed in a deposition by a friend of hers, who had accompanied her to the police station. 10. On15 November 2016 the head of the police department assigned the case to an officer and gave him twenty days to report back. That officer in turn assigned the case to another officer. A little over a month later, on 23 December 2016, having established that Mr V. was living and working in Yambol, the officer placed in charge of the case delegated to yet another officer to write to the Yambol police with a request to get Mr V. to answer several questions about the tyre-slashing incident. On 10 January 2017 the Yambol police wrote back, saying that Mr V. had stated that the car had been purchased by him, and that he had been out of Sofia when its tyres had been slashed and had had nothing to do with it. Based on that statement, and on the absence of eyewitness or surveillance-camera evidence about the incident, on 16 January 2017 the officer in charge of the case proposed that no criminal proceedings be opened, adding that although the incident formally disclosed the elements of a criminal offence, it was too insignificant to amount to one. 11. On 16 March 2017 the Sofia district prosecutor’s office agreed with the proposal and refused to open criminal proceedings in relation to the incident. 12. The ensuing internal investigation by the police (see paragraphs 42 ‑ 43 below) found that, apart from writing to the Yambol police (a task which he had in any event delegated to another officer), for two months the officer in charge of the case had done no work on it. No contemporaneous record existed of his having checked whether Mr V. owned firearms, even though the officer claimed that he had carried out such a check. The letter to the Yambol police had not asked them to inquire whether Mr V. had any firearms or had made death threats against Mrs V. The internal investigation concluded that the police investigation carried out pursuant to Mrs V.’s complaint had thus not been comprehensive, complete or speedy: it had focused exclusively on the slashed tyres. Hence, the officer in charge of it and his immediate superior deserved to be reprimanded. Incident on 1 January 2017 13. Some time around 10.30 a.m. on 1 January 2017, Mrs V.’s mother (the first applicant) called the national emergency number 112 to complain that Mr V. – who had come to the flat where Mrs V., her mother and Mrs V.’s two daughters (the second and third applicants) lived – was trying to take the two children out for a walk even though they were not wearing proper winter clothes, and had acted aggressively when Mrs V.’s mother had confronted him about it. The call was relayed to the police department in charge of the area at 10.42 a.m., and a police patrol was dispatched to the scene. In their subsequent report, the officers recorded that they had not witnessed a row, and had told Mrs V.’s mother that it was not their role to determine whether or not the children should go out for a walk. The officers had nevertheless cautioned Mrs V.’s mother and Mr V. to act lawfully and to resolve any disputes between them via the proper legal channels. According to the applicants, the reason the 112 call had been made was that Mr V. had entered the flat, tried to pull the children out and pushed Mrs V.’s mother. The applicants further stated that shortly after the visit by the police, Mrs V. had come back home and had allowed Mr V. to take the children out, apparently because she had seen that he was accompanied by his brother, whom she trusted. Incident on 13 February 2017 Complaint to the police Complaint to the police Complaint to the police 14. In the late evening of 13 February 2017, Mrs V. complained to the Sofia police that, following a row between them, Mr V. had chased her, first by car and then on foot, insulting and threatening her. She said that she feared for her life and was scared of leaving her home alone or with her children. 15. In a deposition she made at 1.19 a.m. the following day, 14 February 2017, Mrs V. explained that she had met with Mr V. in his car at his request, to discuss what to do with their daughters. In response to her telling him that she wanted a divorce, he had insulted and threatened her. She had got out of the car at a red light, but he had chased her, first in the car and then on foot. Since this had not been his first display of aggression towards her, the children and her mother, she had feared that he might assault her. She had managed to outrun him and had called a friend living in a nearby building, and Mr V. had given up the chase. 16. In a deposition which she made at 1.33 a.m., Mrs V.’s friend confirmed that she had received a call from Mrs V., who had sounded very frightened, and that she had still been frightened when the friend had gone to her home shortly after that. The friend also relayed Mrs V.’s story about the chase, as heard by her in the course of that visit, and expressed her fear about the risk to Mrs V.’s life. 17. On an unspecified date the officer in charge of the case summoned Mr V. to the police station to obtain from him a statement about Mrs V.’s allegations. When he came to the station on 23 February 2017, Mr V. conceded that he had met with Mrs V. on 13 February 2017, but denied having threatened her physically. The officer in charge of the case nevertheless cautioned him not to make threats or carry out acts of violence against his wife. 18. On 7 March 2017 a junior officer also working on the case recommended, with reference to the information about that incident and about the earlier ones on 14 November 2016 and 1 January 2017 (see paragraphs 9 and 13 above), that no charges be brought against Mr V. On 22 March 2017 the Sofia district prosecutor’s office agreed with the proposal and refused to open criminal proceedings with respect to the incident. It noted that making insults and threats were privately prosecutable offences (see paragraph 64 below), and that there was no evidence that Mr V. had breached the terms of a protection order contrary to Article 296 § 1 of the Criminal Code (see paragraph 53 below), since the incident had taken place four days before the issuing of an interim protection order against him (see paragraph 21 below). 19. When interviewed about his work on the case in the course of the ensuing internal investigation (see paragraphs 42-43 below), one of the two officers in charge of it stated that he had not attempted to obtain further information from Mrs V. or her friend as their initial depositions had been comprehensive enough. Protection-order proceedings (a) Proceedings before the Sofia District Court 20. On 16 February 2017, three days after the incident on 13 February 2017 (see paragraphs 14-17 above), Mrs V. brought protection-order proceedings against Mr V. in relation to it (see paragraphs 47-50 below). 21. On 17 February 2017 the Sofia District Court issued an interim protection order without prior notice to Mr V., barring him from coming within one hundred metres of Mrs V. until the final disposal of the case. It found, without giving details in that respect, that enough evidence existed of a direct and immediate threat to her life and health. 22. On 15 June 2017 the Sofia District Court, which heard the case in Mr V.’s absence – he did not appear despite having been duly summoned – issued a final protection order against him, ordering him under section 5(1) of the Protection Against Domestic Violence Act 2005 (see paragraph 48 below) to refrain from acts of domestic violence against Mrs V., and barring him from coming within one hundred metres of her and her home and places of leisure for one year. The court also imposed on Mr V. the minimum possible fine: 200 Bulgarian levs (BGN) (equivalent to 102 euros (EUR)) (see paragraph 49 below). It did so on the basis of the incident on 13 February 2017 (see paragraphs 14-17 above). It found that on that date Mr V. had insulted and threatened Mrs V. The court went on to say that in view of the purely psychological nature of the violence, the combination of measures ordered by it appeared sufficient to deter Mr V. from further acts of domestic violence and that it was superfluous to resort to harsher measures or give him a bigger fine (see реш. № 146709 от 15.06.2017 г. по гр. д. № 9621/2017 г., СРС ). 23. The decision to issue the final protection order was apparently not validly appealed against and, according to the records of the Sofia District Court, became final on 7 August 2017. (b) Notification of the interim protection order to the Sofia police and steps taken by them in connection with that order 24. According to the records of the Sofia District Court, on 20 February 2017, three days after the interim protection order had been issued (see paragraph 21 above), it sent copies of it to two police departments in Sofia: the one in charge of the area where both Mr V. and Mrs V. had their permanent and current addresses, and also the one in charge of the area comprising the address mentioned as that of Mr V. in Mrs V.’s statement of claim. 25. The court’s letter was received by the latter police department on 2 March 2017. On an unspecified later date an officer from the department found Mr V.’s mobile telephone number and called him. Mr V. told her that he did not live there. The officer and another officer nevertheless visited the address and, having inspected the building and spoken to the concierge, confirmed that indeed no one lived in the flat. Accordingly, on 17 March 2017 the police department sent the interim protection order back to the Sofia District Court. 26. The other police department, that in charge of the area where both Mr V. and Mrs V. had their permanent and current addresses in Sofia, received the interim protection order on 27 February 2017. They put it on file but did not take any steps to contact either Mr V. or Mrs V. The ensuing internal investigation (see paragraphs 42-43 below) found that this omission had been contrary to point 20 of the operational guidance on police work under the Protection Against Domestic Violence Act 2005 (see paragraph 55 below). 27. It appears that the final protection order was not sent to the Sofia police. The ensuing internal investigation (see paragraphs 42-43 below) recorded that according to information obtained from the Sofia District Court that had not been done because the court’s decision to issue the order had been appealed against before the Sofia City Court. Incident on 17 August 2017 Emergency call Emergency call Emergency call 28. At 5.49 p.m. Mrs V. called the national emergency number 112 from her mobile telephone. The call lasted three minutes and fifty-four seconds. She told the call handler that Mr V. was acting in breach of the terms of the protection order against him. At first she said that he was driving behind her car, but then, when the call handler prompted her to elaborate, she stated that she could no longer see Mr V. In response to that information, the call handler told Mrs V. that she should lodge a written complaint with the territorially competent Sofia police department, and that since Mr V. was no longer nearby, it was pointless to dispatch a police patrol to the scene. He added that if Mr V. did anything further to breach the terms of the protection order, Mrs V. should call the emergency number again. 29. The territorially competent police department in Sofia was apparently not informed of the emergency call. Written complaint to the police 30. As instructed by the call handler, just before 7 p.m. on 17 August 2017 Mrs V. went to the police department and lodged a written complaint about the incident. She stated that when driving home after leaving work at 5 p.m., she had seen Mr V. following her in his car, in breach of the final protection order against him (Mrs V. cited the number of the case in which the order had been issued, the order’s date, the formation of the Sofia District Court which had issued the order, and the order’s terms). Out of fear, she had called a friend and had gone to see her, and when she had parked her car to pick up her friend Mr V. had parked his car one car down from hers and had got out of the vehicle and come to about ten metres from her, in breach of the terms of the protection order against him (see paragraph 22 above). Mrs V.’s friend had then got into her car with her and when they had driven away, Mr V. had kept on driving behind them. The friend had then called the emergency number 112 and Mrs V. had spoken with the operator. After that they had lost Mr V. from sight and had gone directly to the police station. Mrs V. asked the police to take preventive measures before Mr V. did “something fatal” to her. 31. In a deposition made at about the same time, Mrs V.’s friend confirmed the story, adding that Mr V. had been wearing a baseball cap and dark glasses, in an apparent attempt to conceal his identity, and that when he had seen them driving away after the short stop, he had feverishly tried to find something in his car. 32. The duty officer registered the written complaint and reported it to the duty inspector. The inspector checked whether any protection orders were on file with respect to Mrs V. and, having established that this was the case, the following morning reported to the department’s deputy head. She assigned the case to another inspector, who in turn assigned it to yet another inspector and gave him twenty days to report back. Apparently no further steps were taken on 18 August 2017. 33. The ensuing internal investigation (see paragraphs 42-43 below) noted that even though Mrs V.’s complaint had contained enough information to give rise to a reasonable suspicion that Mr V. had wilfully disregarded the terms of a protection order contrary to Article 296 § 1 of the Criminal Code (see paragraph 53 below), the duty inspector had, in breach of his duties, failed to take immediate steps to ensure Mr V.’s arrest. He deserved to be reprimanded for that. Written complaint to the prosecuting authorities 34. Just before 12 noon the next day, 18 August 2017, Mrs V., accompanied by her friend, lodged a nearly identical complaint with the Sofia district prosecutor’s office, specifying that Mr V. owned a handgun and that she feared for her life. The friend made a deposition in which she confirmed those points. MRS V.’S SHOOTING AND DEATH ON 18 AUGUST 2017 35. After coming out of the premises of the Sofia district prosecutor’s office, at about 1.50 p.m. Mrs V. and her friend went to a coffee shop not far from where Mrs V. lived and sat on its terrace. Shortly before 3 p.m. Mr V., who had apparently spotted them, came up to them and asked Mrs V. whether they could talk about their children. She refused and warned him that she would call the police if he did not go away. He walked away, went back to his car, and parked it close to the coffee shop. He then got out of the car, wearing a handgun on his belt (for which he had had a firearms licence through one of his companies in 1998-2006), and again approached Mrs V. She repeated that she would call the police and started dialling the emergency number 112 on her mobile telephone, whereupon Mr V. shouted that she had ruined his life, pulled the handgun from under his T-shirt and shot her five times in the head and torso. Mrs V. died on the spot. Immediately after that Mr V. went to a police station to surrender. CRIMINAL PROCEEDINGS AGAINST MR V. 36. At the police station, Mr V. was arrested. On 22 August 2017 the Sofia City Court placed him in pre-trial detention, noting, in particular, that the way in which he had shot Mrs V. and his unstable mental state suggested that he might commit further offences if not deprived of his liberty. On 29 August 2017 the Sofia Court of Appeal upheld that decision, agreeing with its reasoning. 37. In late 2017 Mr V. was tried for aggravated murder and the unlawful possession of a firearm. On 5 January 2018 the Sofia City Court convicted him of those offences and sentenced him to a term of imprisonment of thirteen years and four months, to be served under the “severe regime”. It also ordered him to pay each of his daughters (the second and third applicants), who had brought civil-party claims against him, BGN 250,000 (EUR 127,822), plus interest, in respect of non-pecuniary damage (see прис. № 1 от 05.01.2018 г. по н. о. х. д. № 5051/2017 г., СГС ). 38. The court noted, in particular, that a limited liability company run by Mr V. had been granted a firearms licence in 1998 (see paragraph 60 below), and that this licence had been renewed in 1999, 2000 and 2003 but had expired in 2006, which meant that for the whole subsequent period Mr V.’s possession of his handgun had been unlawful. 39. The court went on to say that it found credible the evidence of Mrs V.’s friend about the earlier threats against her, and that Mrs V.’s complaints to the police and the prosecuting authorities and the protection order issued in her favour were all evidence that she had had serious grounds to fear Mr V. When determining Mr V.’s sentence, the court took the harassment to which he had subjected Mrs V. during the months before her murder and his death threats against her as an aggravating factor. 40. The first applicant, acting on behalf of the second and third applicants, appealed against the sentence, asking the Sofia Court of Appeal to increase it to life imprisonment. She argued, among other things, that the lower court had not sufficiently taken Mr V.’s prior conduct into account. In May 2018 the Sofia Court of Appeal upheld the lower court’s judgment in full (see реш. № 190 от 10.05.2018 г. по в. н. о. х. д. № 240/2018 г., САС ). It held, among other things, that when fixing Mr V.’s sentence the lower court had correctly assessed the harassment to which he had subjected Mrs V. during the months before her murder and his death threats against her as an aggravating factor. 41. Mr V. appealed on points of law, challenging only the decision in relation to his initial prison regime. In October 2018 the Supreme Court of Cassation held, chiefly on the basis of Mr V.’s poor state of health (he was by then suffering from advanced-stage prostate cancer) and the low risk that he presented, that he was to begin serving his sentence under the “general regime”, which was more lenient. The court upheld the lower courts’ judgments in all other respects, save for the legal characterisation of one of the aggravating elements – relating to the nature of the murder weapon – of the offence (see реш. № 205 от 19.10.2018 г. по н. д. № 778/2018 г., ВКС, II н. о. ). INTERNAL INVESTIGATION BY THE POLICE 42. On 25 August 2017 the police opened an internal investigation to assess whether the operating procedures in domestic-violence cases had been properly followed in Mrs V.’s case. The investigation was conducted by four inspectors. They took written statements from a number of officers involved in handling Mrs V.’s complaints and the protection orders in her favour, and obtained various other materials. 43. The investigation report was completed about seven weeks later, on 5 October 2017, and ran to twenty pages. It described in detail all the steps taken by the police in Mrs V.’s case and made various recommendations, including for disciplinary action (see paragraphs 12, 19, 26-27 and 33 above). It appears that ten officers were given disciplinary punishments on the basis of the report’s findings. Three of them were punished with a reprimand (the third harshest punishment available by statute) for a period of six months. There is no information about the punishments given to the other seven officers. | The applicants in this case were the mother and daughters of a woman who was shot dead in a café in Sofia by her husband just after leaving the district prosecutor’s office to complain that he owned a handgun and she feared for her life. She had made several similar complaints in the years and months leading up to the killing concerning her husband’s angry, violent and obsessive attitude towards her. The applicants alleged in particular that the Bulgarian authorities had not taken their close relative’s complaints about her husband seriously and had failed to take measures to avert the risk to her life. |
20 | Children’s education and parents’ religious convictions | I. THE CIRCUMSTANCES OF THE CASE 6. The first two applicants, Urszula and Czesław Grzelak, were born in 1969 and 1965 respectively. They are married and live in Sobótka. They are the parents of Mateusz Grzelak (“the third applicant”), who was born in 1991. The first two applicants are declared agnostics. 7. The third applicant began his schooling in primary school no. 3 in Ostrów Wielkopolski in 1998 (at the age of seven). In conformity with the wishes of his parents he did not attend religious instruction. It appears that he was the only pupil in his class who opted out of that subject. Religious instruction was scheduled in the middle of the school day, between various compulsory courses. The school, despite the wish expressed by the first two applicants, did not offer their son an alternative class in ethics. It appears that when other pupils in his class were following religious instruction the applicants'son was either left without any supervision in the corridor or spent his time in the school library or in the school club. 8. The Government, for their part, maintained that appropriate supervision had been provided for Mateusz Grzelak while religious instruction classes were in progress. The school had a general obligation of care and supervision towards all pupils who were on its premises at any time. 9. According to the first two applicants, their son was subjected to discrimination and physical and psychological harassment by other pupils on account of the fact that he did not follow religious instruction. For that reason, in the course of the third year of primary school the applicants moved their son to primary school no. 9 and subsequently to primary school no. 11 in the same town. 10. On 11 April 2001, when their son was in the third year of primary school, the applicants sent a letter to the headmistress of primary school no. 9 in Ostrów Wielkopolski. They drew her attention to the fact that their son had been ridiculed and harassed by other pupils in the class. They stated that their son was being discriminated against by the majority of his classmates because he did not attend religious education classes. The applicants requested the assistance of the school in resolving the issue. 11. According to the Government, the applicants did not wait for a reply to their letter of 11 April 2001 and moved their son to primary school no. 11. In a letter of 26 June 2001 the headmistress of primary school no. 9 explained that Mateusz Grzelak had attended that school from 23 October 2000 to 19 April 2001. She noted that he had frequently provoked his colleagues by mocking religious symbols and children who attended religious instruction. The class tutor had informed Mr and Mrs Grzelak about their son's behaviour but they had not responded. The headmistress explained further that the school did not ask for a written declaration as to children's attendance at religious instruction. It sufficed for a parent who did not wish for his or her child to attend religious instruction to report that fact to the class tutor. 12. The Government further maintained that Mr and Mrs Grzelak had requested primary school no. 11 to provide their son with a course in ethics. According to the Government, the headmistress of that school had contacted the Poznań Education Authority ( kuratorium oświaty ) to establish whether it was possible to provide such a course for an inter-school group. Since that was not possible owing to the lack of sufficient numbers of interested pupils and parents, the school proposed to the third applicant that he participate in alternative classes in the school club or school library. It appears that the applicants did not report any problems to the school concerning their son's education. 13. On 1 May 2001 the applicants sent a letter to the Minister of Education, stating that since the beginning of their son's education they had encountered religious intolerance and that the school authorities had failed to react. They put a number of questions to the Minister concerning the Ordinance on the organisation of religious instruction in State schools (see relevant domestic law and practice below). In particular, the applicants raised the following matters in their letter: 1. Why did some schools require declarations from parents as to whether their children would be following religious instruction? 2. Was the school obliged to organise a class in ethics just for one pupil? 3. Why should children like the applicants'son pass their time unproductively in the school club while other children were attending religious instruction or when the schools were closed for Lent retreat? 4. Did the fact that a child had a straight line instead of a mark for “religion/ethics” on a school report indicate that the Ordinance of 14 April 1992 of the Minister of Education on the organisation of religious instruction in State schools (“the Ordinance”) infringed the Education Act and human rights instruments? 5. What could parents do when their child was discriminated against and harassed for not having attended religious instruction? 14. On 29 May 2001 the Ministry of Education replied to the applicants. In respect of the issues raised by the applicants it informed them as follows: Re question 1: Religious instruction and courses in ethics were organised at the parents'request, and where a declaration to that effect was asked for, it was for organisational reasons only. Re question 2: If only one pupil was interested in following a course in ethics, then the school authorities should enquire whether it would be possible to follow that course in an inter-school group. If in a given municipality there was no such group, then the school had to arrange for supervision of the pupil during the religious education class. Re question 3: In the case referred to above the school should organise other activities for pupils not following religious instruction or supervise them adequately by allowing them to do their homework or to use the library, etc. Re question 4: Paragraph 9 of the Ordinance regulated the manner in which marks for “religion/ethics” were entered in school reports. That provision had been interpreted by the Constitutional Court in its judgment of 20 April 1993 (see relevant domestic law and practice below). The Constitutional Court had noted that the inclusion of marks for “religion/ethics” in a school report was a consequence of providing courses in those subjects in State schools. Furthermore, the Constitutional Court observed that this rule did not breach the right to freedom of conscience and religion. Re question 5: Discrimination against pupils on the ground of their not having attended religious instruction amounted to a breach of the Ordinance and should be reported to the relevant education authorities. 15. The applicants also applied to the Ombudsman on 14 June 2001, alleging that in their son's case Articles 53 § 7 and 31 § 2 of the Constitution, Articles 9 and 14 of the Convention and various other provisions had been breached. The Ombudsman replied that he could not challenge the Ordinance again following the judgment of the Constitutional Court of 20 April 1993. The problems raised in their letter had more to do with the inappropriate behaviour of some teachers and pupils than the law itself. 16. On 17 October 2001 the applicants sent a letter to the President of the Republic. They requested him to amend the Ordinance with a view to providing guarantees for non-religious children. On 6 November 2001 the President's Office requested the Ministry of Education to reply to the applicants'letter. 17. On 10 December 2001 the Ministry of Education confirmed its position as set out in the letter of 29 May 2001. In addition to the issues already addressed, the Ministry replied to the applicants'complaint concerning the obligation to make a declaration as to whether the child would follow religious instruction. The Ministry informed the applicants that the school authorities could not require parents to make a “negative declaration”, that is, a declaration that their child would not follow religious instruction. Such a practice would contravene the provisions of the Ordinance and should be reported to the education authorities. The Ministry further informed the applicants that the parents'declaration could not be understood as a declaration concerning their beliefs. 18. The applicants submitted that they had made repeated requests to the school authorities, asking for their son to be allowed to follow a course in ethics instead of religious instruction. However, none of the primary schools attended by their son had provided a course in ethics. The refusals had been based on the lack of suitable teachers, financial reasons and insufficient numbers of pupils interested in following a course in ethics. 19. In September 2004 the third applicant began his secondary education. 20. On 16 July 2009 Mr and Mrs Grzelak complained to the Poznań Education Authority ( kuratorium oświaty ) that their son had not been offered a course in ethics at Ostrów Wielkopolski secondary school no. 2. Their petition ( skarga ) was referred to the Ostrów District ( powiat ) which, as the authority responsible for the school, was competent in the matter. On 27 August 2009 the Council of the Ostrów District dismissed the petition as unfounded. It found that Mateusz Grzelak was the only student in all the schools run by the Ostrów District whose parents wished him to follow a class in ethics. Accordingly, the conditions for the provision of such a class, as set out in the Ordinance, had not been met. School reports of the third applicant 21. The school report of the third applicant for the first three years of primary school contained three subjects: behaviour ( zachowanie ), religion/ethics and general education. In the place reserved for a mark for “religion/ethics” the school report had a straight line. 22. The school report for the fourth year contained a list of courses that the third applicant had followed, including “religion/ethics”. Once again, there was a straight line against the subject “religion/ethics”. 23. In the school report for the fifth year in respect of the subject “religion/ethics” there was a straight line and the word ethics was crossed out. A similar situation applied to the primary school leaving certificate which the third applicant obtained in June 2004. 24. In September 2004 the third applicant began his secondary education in lower secondary school ( gimnazjum ) no. 4 in Ostrów Wielkopolski. His school reports for the first two years at that school and the leaving certificate of June 2007 had a straight line in the space for “religion/ethics”. 25. In September 2007 the third applicant began studying at Ostrów Wielkopolski secondary school no. 2 ( liceum ). On 4 September 2007 his parents requested the school to allow him to take a class in ethics, but it appears that no such class was organised. The school reports for the first and second year in that school had a straight line in the space for the subject “religion/ethics”. The third applicant failed German language in the second year of the liceum and from the school year 2009/2010 he moved to the Ostrów Wielkopolski vocational secondary school. | The first two applicants, who were declared agnostics, were the parents of the third applicant. In conformity with the wishes of his parents, the latter did not attend religious instruction during his schooling. His parents systematically requested the school authorities to organise a class in ethics for him. However, no such class was provided throughout his entire schooling at primary and secondary level because there were not enough pupils interested. His school reports and certificates contained a straight line instead of a mark for “religion/ethics”. |
Subsets and Splits