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228 | The definition of bis | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1952 and lives in St Petersburg. 8. In February 1995 the applicant, a former naval officer, joined an environmental project conducted by Bellona, a Norwegian non-governmental organisation, to work on a report entitled “The Russian Northern Fleet – Sources of Radioactive Contamination” (“the report”). 9. On 5 October 1995 Bellona ’ s Murmansk office was searched by the Federal Security Service ( ФСБ РФ – “the FSB”). The FSB seized the draft report, interrogated the applicant and instituted criminal proceedings on suspicion of treason, since the draft report allegedly contained information, classified as officially secret, concerning accidents on Russian nuclear submarines. 10. On 20 October 1998 the applicant ’ s trial on a charge of treason through espionage and a charge of aggravated disclosure of an official secret began before St Petersburg City Court. After four days of hearings, the case was remitted for further investigation on 29 October 1998. The court considered that the indictment was vague, which impaired the applicant ’ s defence and prevented the court from carrying out an examination on the merits. It also found that the investigation file left open the question whether the report contained any official secrets as such, and that it did not contain a “proper and complete” expert evaluation of possible public sources of the information in question or of the estimated damage. The court ordered the prosecution to conduct an additional expert examination into the possibility that the applicant had obtained the disputed information from public sources and to take other steps to complete the investigation. 11. On 3 November 1998 the prosecution appealed against this decision, claiming that the case was clear enough for determination by a court and that there was no need for further investigation. 12. On 4 February 1999 the order for further investigation was upheld by the Supreme Court of the Russian Federation ( “ the Supreme Court ” ). 13. On 23 November 1999 the St Petersburg City Court resumed the applicant ’ s trial on the same charges. 14. On 29 December 1999 the St Petersburg City Court acquitted the applicant on all the charges, having found that the applicant had been prosecuted on the basis of secret and retroactive decrees. 15. The prosecution appealed. 16. On 17 April 2000 the Supreme Court upheld the acquittal. The court found that the charges were based on secret and retroactive decrees which were incompatible with the Constitution. The acquittal thus became final. 17. On 30 May 2000 the Procurator General filed a request with the Presidium of the Supreme Court to review the case in supervisory proceedings ( протест на приговор, вступивший в законную силу ). He challenged the judgment on the grounds of wrongful application of the law governing official secrets, the vagueness of the indictment – which had led to procedural prejudice against the applicant – and other defects in the criminal investigation, in particular the lack of an expert report as to whether the disputed information had originated from public sources. He called for a reassessment of the applicable law and of the facts and evidence in the case file, and for the case ’ s remittal for fresh investigation. 18. On 13 September 2000 the Presidium of the Supreme Court dismissed the Procurator General ’ s request and upheld the acquittal. While it acknowledged that the investigation had been tainted with flaws and shortcomings, it found that the prosecution could not rely on them in calling for a remittal, as it had been entirely within the prosecution ’ s control to redress them at an earlier stage in the proceedings. Moreover, the Presidium pointed out that the investigation authority had earlier been required to remedy exactly the same defects as those relied on in the request to quash the acquittal. It observed that on 29 October 1998 the court had expressly instructed the investigating authority, inter alia, to conduct a study of information in the public domain in order to ascertain whether the applicant could have obtained the disputed data from public sources. 19. On 17 July 2002 the Constitutional Court of the Russian Federation examined the applicant ’ s challenge to the laws which allowed supervisory review of a final acquittal. 20. In its ruling of the same date, the Constitutional Court declared incompatible with the Constitution the legislative provisions permitting the re-examination and quashing of an acquittal on the grounds of a prejudicial or incomplete investigation or court hearing or on the ground of inaccurate assessment of the facts of the case, save in cases where new evidence had emerged or there had been a fundamental defect in the previous proceedings. 21. The Constitutional Court ’ s judgment stated, inter alia : “ ... Article 4 of Protocol No. 7 to the Convention provides that the right not to be tried or punished twice does not prevent the reopening of the case in accordance with the law and criminal procedure of the State concerned, if there is evidence of new or newly discovered facts, or if there has been a fundamental defect in the previous proceedings, which could affect the outcome of the case. It follows ... that, subject to the above requirements, the national legislation may provide for a system by which a case may be reopened and a final judgment be quashed, and may specify where, depending on the case, a procedure for reopening on the grounds of new or newly discovered evidence or a supervisory review should apply. Any exemption from the general prohibition on resuming proceedings to the detriment of the acquitted or convicted person may be justified only in exceptional circumstances, where a failure to rectify a miscarriage of justice would undermine the very essence of justice and the purpose of a verdict as a judicial act and would upset the required balance between the constitutionally protected values involved, including the rights and legitimate interests of convicted persons and those of the victims of crime. In the absence of any possibility of reversing a final judgment resulting from proceedings tainted by a fundamental defect that was crucial for the outcome of the case, an erroneous judgment of this type would continue to have effect notwithstanding the principle of general fairness ... and the principle of judicial protection of fundamental rights and freedoms. 3.2. Under the [Constitution and the Convention] any possibility provided for at national level of quashing a final judgment and reviewing a criminal case must be subject to strict conditions and criteria clearly defining the grounds for such review, given that the judgment concerned is already binding and determinative of the individual ’ s guilt and sentence. However, the grounds for review of final judgments provided for in the Code of Criminal Procedure [of 1960 ] go beyond these limits. When establishing a procedure for the review of final convictions and, especially, acquittals ... definite grounds should have been formulated to ensure that such a procedure would be implemented with sufficient distinctness, precision and clarity to exclude its arbitrary application by the courts. In failing to do so, [the legislature] misapplied the criteria which derive from [the Constitution] and Article 4 of Protocol No. 7 to the Convention for the quashing of final judgments in criminal cases ... Furthermore, [ the power] of a supervisory instance to remit a case for fresh investigation where it concludes, through its own assessment of evidence, that the previous investigation has been prejudicial or incomplete, is incompatible with the constitutional principles of criminal procedure and with the Constitutional Court ’ s jurisprudence, in that it gives the prosecution an unfair advantage by providing it with additional opportunities to establish guilt even after the relevant judgment has become operative. It follows that a court of supervisory instance cannot quash a final acquittal only on the ground of its being unfounded ... Accordingly, the prosecutor is not entitled to request the supervisory review of such a judgment on the ground that it is unfounded ... ” | The applicant, a former navy officer, joined an environmental project of a Norwegian NGO to work on a report entitled “The Russian Northern Fleet. Sources of Radioactive Contamination”. Criminal proceedings on suspicion of treason were subsequently instituted against him. Tried for treason through espionage and aggravated disclosure of an official secret, he was acquitted .in December 1999. In April 2000 the Supreme Court upheld the acquittal, which became final. In May 2000 the Prosecutor General lodged a request with the Presidium of the Supreme Court to review the case in supervisory proceedings. The Presidium dismissed that request and upheld the acquittal. The applicant alleged in particular that supervisory review proceedings conducted after his final acquittal constituted a violation of his right not to be tried again in criminal proceedings for an offence of which he had been finally acquitted. |
6 | Conditions of detention | I. THE CIRCUMSTANCES OF THE CASE 5. The five applicants are Iraqi nationals. They now live in Switzerland, where they were granted asylum in July 2017 (see paragraph 31 below). The first and second applicants, Mr S.F. and Mrs W.O., born respectively in 1975 and 1978, are spouses. The other three applicants, Mr Y.F ., Mr S.F. and Mr A .F ., born respectively in 1999, 2004 and 2014, are their sons. A. The applicants ’ interception and arrest 6. On 14 August 2015 the applicants, who had fled from Iraq, covertly crossed the Turkish-Bulgarian border. They were travelling with four other families. From there, they took taxis which drove them to the outskirts of Sofia, where they slept under the open sky for two nights. On 17 August 2015, they hired other taxis to drive them to the Bulgarian-Serbian border, somewhere around the town of Bregovo. Shortly before the border, the applicants switched cars, getting into a Toyota sports utility vehicle, which was supposed to take them through a wooded area to the border itself. They intended to cross that border covertly as well, and from there continue towards Western Europe. 7. At that time, the second applicant was three months pregnant. 8. According to media reports, over the last few years the above ‑ mentioned route has been a popular one for migrants trying to cross Bulgaria covertly on their way to Western Europe. According to a report submitted by the Government, in August 2015 the Bulgarian border police intercepted 350 adult migrants and 132 minor migrants near Bregovo and took them into custody. 9. In the late afternoon of 17 August 2015 the applicants were driven in the Toyota towards the Bulgarian-Serbian border near the village of Rabrovo, which is about fifteen kilometres south of Bregovo, twenty-five kilometres west of the town of Vidin, and about two kilometres from the border. It was also transporting the four other families; together with the applicants, it carried a total of eighteen passengers, eight of whom were minors. 10. At about 5 p.m., when the Toyota was just a few metres away from the border, two officers of the Bulgarian border police intercepted it. The driver fled. One of the officers gave chase, while the other ordered all the passengers to step out of the vehicle. The first officer could not catch up with the driver and came back. According to the applicants, he was apparently annoyed about his inability to detain the driver and hit one of the passengers. The applicants submitted that they had been afraid that he might hit them as well. 11. Half an hour later, two more officers came to the scene; subsequently, a bus, with a driver and a photographer, also arrived. According to the applicants, the officers insulted the arrestees, called them “mice” (the applicants did not specify in what language), and made insulting gestures. They ordered the applicants and the other passengers to get into the bus and drove them to the Bregovo Border Police Department ’ s detention facility in Vidin. According to the applicants, the drive took about an hour. According to the Government, the drive could not have taken less than three hours. The preparation of the documents relating to the applicants ’ arrest then took another hour, and the written declarations that they had been acquainted with their rights were stamped as having been signed at 9 p.m. The applicants could not have therefore been placed in their cell earlier than 10 p.m. B. The applicants ’ detention in Vidin 12. Upon their arrival at the border police ’ s detention facility in Vidin, the applicants were searched. According to them, all their effects – including travelling bags, mobile telephones, money, food, and even the fifth applicant ’ s nappies, baby bottle and milk – were taken away from them, except for a mobile telephone belonging to the third or the fourth applicant, which they managed to conceal. According to a search report submitted by the Government, when searching the second applicant the authorities seized from her four mobile telephones, SIM cards, a USB flash drive, two digital video disks and cash. The Government also pointed out that in a video submitted by the applicants (see paragraph 15 below), travel bags and personal effects were visible inside their cell. 13. After the search, the arrestees were split into two groups. The applicants and another family were put in one cell, and the others in an adjoining one. In the application form, the applicants stated that both cells were on the detention facility ’ s second floor. 14. According to the applicants, the cell was hot and its window could not be opened. 15. The applicants also submitted a video, which according to them had been shot with the mobile telephone that they had managed to conceal during the search ( see paragraph 12 above ). It shows that the cell was at ground level, about 4 by 4 metres, with a large double window ( secured on the inside by a mesh grille ), an open door, and a padlocked metal grille on the door. In the video the cell looks run-down, with dilapidated walls, paint coming off the ceiling in flakes, and a dirty floor partly covered with dirty ( and in places damp ) cardboard sheets. The furniture consists of two old and dilapidated bunk beds and a single bed, with four or five bare soiled mattresses. Two of the mattresses are on the floor, one is on the single bed, and one is on the bottom bunk of one of the bunk beds. A single crumpled ‑ up bed sheet lies on one of the mattresses on the floor. Personal effects, such as a small shoulder bag, training shoes and some litter, are strewn about. Other random objects – food remains, empty plastic bottles, rubbish and a torn blanket – are piled up in a corner. The third and fourth applicants can be seen sitting on one of the bunk beds, whereas the fifth applicant (the toddler) can at first be seen sitting on the floor beside the door and then being picked up and carried around by the first applicant. Apart from the five applicants, three other people can be seen in the cell : a middle ‑ aged woman lying on the single bed, a boy (perhaps two or three years old), and the man shooting the video. 16. The video was submitted by the applicants on a digital video disk containing two video files. One is in .mpg format and bears a time stamp according to which it was last modified at 5.36 p.m. on 17 September 2015; and the other is in .mp4 format and bears a time stamp according to which it was last modified at 3.27 p.m. on 15 December 2015. The footage in both files is identical, except that : (a) the faces of the applicants in the first one have been pixelated ( whereas in the second they have not ); (b) the running time of the first video is one minute and twenty- one seconds ( whereas that of the second is one minute and thirty-two seconds, as it continues for another ten seconds ); and (c) in the first file the footage is horizontal whereas in the second it is rotated to the right at a ninety -degree angle. The footage in the first file has a definition of 1,280 by 720 pixels and is at twenty-four frames per second, whereas that in the second file has a definition of 1,920 by 1,080 pixels and is at twenty-nine frames per second. 17. The applicants explained that the above-mentioned dates and times corresponded with when they had copied the video files in Switzerland, and that they had in fact recorded the original video on 18 August 2015, at about noon. Since they had taken the SIM cards out of the mobile telephone several times in the course of their journey and then re- inserted them, the telephone had not indicated the correct time and date, making it impossible to pinpoint the exact date and time when the video had been recorded. 18. In a letter to the Government Agent, an official from the Migration Directorate of the Ministry of Internal Affairs in Sofia, having compared the video footage with the photographs in the applicants ’ migration files, stated that he could confirm that the applicants were indeed the people featured in the video. 19. According to the Government, the border police ’ s detention facility in Vidin was equipped in accordance with the relevant regulations. They did not provide further details in that respect. 20. According to the applicants, after being put in the cell, they were not given anything to eat or drink, or allowed to go to the toilet. Since there was no toilet or a bucket in the cell, they had to urinate onto the floor. The Government did not comment on that point. 21. About four hours later, at about 10 p.m., officers came and took the first applicant to another building in order to take his picture and to digitally fingerprint him. After that, the officers took out the second applicant for fingerprinting. After the fingerprinting procedure, the officers left the applicants in the cell for the night. 22. Between 10.30 a.m. and 11 a.m. and between 11 a.m. and 11.30 a.m. the next day, 18 August 2015, a border police investigator interviewed respectively the first and the second applicants. The interviews were conducted in English and translated into Bulgarian with the help of an interpreter. 23. According to the applicants, after the interview the second applicant asked the guards to give her back her bag, so that she could prepare a baby bottle for her toddler ( the fifth applicant ), and the guards did so. The Government did not comment on that point. 24. After that, the guards took the applicants one by one out of the cell to go to the toilet. 25. According to the applicants, later that day, a ten-month-old child in the adjoining cell touched an electrical wire and suffered an electric shock. That caused panic among the detainees, and the guards allowed all of them out of their cells. An ambulance was called. When hearing that the applicants had not had anything to eat or drink since their arrest, the nurse who came with the ambulance argued with the guards and took the second applicant and her youngest child, the fifth applicant, to a hospital in Vidin, where the second applicant was examined by a gynaecologist between 8.05 p.m. and 8.35 p.m., and the fifth applicant was examined by a paediatrician between 8.20 p.m. and 8.40 p.m. Two or three hours later they were taken back to the detention facility. 26. According to the applicants, at that point the guards told them that they would give them food if they paid for it; the guards then took money from their bags and gave them two loaves of bread, a yoghurt, four bottles of Coca-Cola, one kilogram of tomatoes, one kilogram of cucumbers, one kilogram of bananas, and a small piece of paté. According to the Government, the applicants were provided with food and water, in accordance with the relevant regulations. In support of their assertion, the Government submitted a table setting out the prescribed daily rations for adult and minor detained migrants and a report, drawn up by the head of the Bregovo Border Police Department on 1 September 2015, which listed the names of all migrants – including the applicants – which had been detained in the Department ’ s detention facility in Vidin during the month of August 2015 and provided with food there. 27. Then, at about 10 p.m. or 11 p.m., the applicants were put back in the cell. According to them, they were allowed to go to the toilet before that, but had not been able to do so during the night. The Government did not comment on that point. 28. The next day, 19 August 2015, the applicants were served with orders for the first and second applicants ’ removal from Bulgaria and for their detention pending removal, all issued the previous day. It does not appear that separate orders were issued with respect to the third, fourth and fifth applicants, who were mentioned as accompanied minors in the orders for the first and second applicants ’ detention (see paragraph 33 below). C. Ensuing developments 29. According to the applicants, at about midday on 19 August 2015 they were given back their belongings and driven to an immigration detention facility in Sofia. According to the Government, that happened much earlier that day, at about 6 a.m. or 7 a.m., since the relevant records showed that the applicants had been placed in the detention facility in Sofia at 2.45 p.m., and the normal travel time between the two facilities was about six or seven hours. 30. On 24 August 2015 the applicants sought international protection in Bulgaria. Their applications were registered by the State Agency for Refugees on 31 August 2015, and they were released from the immigration detention facility in Sofia and settled in an open facility for the accommodation of asylum-seekers. On 23 September 2015 those proceedings were, however, discontinued because the applicants had vanished from the facility. 31. In the meantime, the applicants made their way to Switzerland, where they likewise sought international protection on 8 September 2015. On 8 January 2016 the Swiss authorities decided not to examine their applications but rather to transfer them back to Bulgaria under Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third ‑ country national or a stateless person ( “the Dublin III Regulation”), which also applies to Switzerland (see A.S. v. Switzerland, no. 39350/13, § § 12-13, 30 June 2015 ). Following legal challenges by the applicants, on 7 July 2016 the Swiss authorities varied their own decision and proceeded with the examination of the applications. Just over a year later, on 27 July 2017, the applicants were granted asylum in Switzerland. | This case concerned a complaint brought by an Iraqi family about the conditions in which they had been kept in immigration detention for a few days when trying to cross Bulgaria on their way to Western Europe in 2015. The applicants complained in particular about the conditions in which the three minors – then aged 16, 11 and one and a half years – had been kept in the detention facility in Vidin. Submitting a video recording, they alleged in particular that the cell in which they had been held had been extremely run-down. They also maintained that the authorities had failed to provide them with food and drink for the first 24 hours of their custody and that the baby bottle and milk of the youngest child had been taken away upon their arrival at the facility and only given to the mother 19 hours later. |
890 | Public or political figures | 2. The applicant was born in 1973 and lives in Riga. 3. The Government were represented by their Agent, Ms K. Līce. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background information 5. The applicant is a lawyer. At the time of the impugned article her partner, J.N., was the chairman of a political party that did not have seats in Parliament. From 1995-2001 he had been the director-general of a State ‑ owned joint-stock company. He had also taken part in a nationwide advertising campaign in a weekly celebrity-focused magazine, Privātā Dzīve, that appeared in 76,000 copies with a readership of about 474,000. 6. In 2003 Privātā Dzīve published an article about the dissolution of J.N.’s previous marriage. J.N. had commented on his new relationship with the applicant and had said that they would soon become parents. The article included two photographs of the applicant – one was a portrait and the other showed her sitting in a public location. In the autumn of 2003, the applicant’s and J.N.’s first child was born. Impugned article 7. On 30 November 2004 Privātā Dzīve published an article about the birth of the applicant’s second child. A covertly taken photograph of the applicant was used on the magazine’s cover. It showed her leaving hospital carrying her newborn baby in a car-seat. Her partner J.N. could be seen walking behind her. The photograph had the caption: “One year on [J.N.] has another child.” 8. On page four under the rubric “Children of celebrities” there was a short article with the headline “[J.N.] does not make it in time for the birth of his son”. The article was based on a telephone conversation with J.N., who had provided some information about the birth of his son, such as his weight, height and time of birth. The article was accompanied by nine covertly taken photographs, including the cover photograph, all showing the applicant and J.N. leaving hospital. In addition to the cover photograph, the applicant could be seen in three of them – standing at entrance to the hospital, standing together with J.N., and fixing the windscreen wiper of her car. The other photographs showed either J.N. or both of them leaving the hospital grounds in their cars. The photographs were supplemented with captions addressing the quantity and type of belongings the applicant had had while in hospital, the fact that the applicant and her partner had arrived and departed with their own cars, and that a windscreen wiper had been broken and the pair had tried to fix it. Civil proceedingsFirst-instance proceedings First-instance proceedings First-instance proceedings 9. On 10 March 2006, relying on Articles 89 and 96 of the Constitution (protection of fundamental rights and right to private life), section 1635 of the Civil Law (right to compensation) and Article 8 of the Convention, the applicant brought a civil claim against the publisher, the editor-in-chief, and the journalist who had written the piece. She argued that by covertly taking photographs of an important and intimate moment of her life – leaving hospital with a newborn baby – and publishing them in a magazine without her consent and in the absence of any public interest, the defendants had infringed her right to respect for her private life. 10. In a judgment of 10 January 2007 the Riga City Central District Court ruled in the applicant’s favour. It observed that it had not been contested that the photographs had been taken covertly and that they had been published without the applicant’s permission. Furthermore, it had not been argued that the applicant was a public figure. While the article primarily concerned J.N., it did not refer to him as a person carrying out any active political functions. Therefore, the interference in the applicant’s private life could not be justified by a reference to society’s right to be informed of the activities of a public person. Having found a violation of the applicant’s right to private life, the court ordered the editor-in-chief to publish an apology on pages one, four and five of the magazine, and to pay compensation for non-pecuniary damage in the amount of 700 Latvian lati (approximately 1,000 euros (EUR)). 11. In response, on 30 January 2007 Privātā Dzīve republished the article of 30 November 2004 with the same photographs and captions, along with an editorial note expressing disagreement with the judgment. Appellate proceedings 12. In a judgment of 11 December 2007 the Riga Regional Court overturned the first-instance court’s judgment and dismissed the applicant’s claim. 13. On 10 September 2008 the Senate of the Supreme Court quashed the appellate court’s judgment. It pointed out that the applicant had relied on the Court’s 2004 judgment in the case of Von Hannover v. Germany (no. 59320/00, ECHR 2004 ‑ VI) and the appellate court had failed to provide reasons as to why this judgment had not been relevant for deciding the case. 14. On 11 December 2008 the Riga Regional Court adopted a new judgment, again dismissing the applicant’s claim. It observed that the photographs featuring the applicant leaving hospital while holding her newborn baby had been taken covertly. However, relying on the Declaration on mass communication media and Human Rights (Resolution 428 (1970) of the Parliamentary Assembly of the Council of Europe, adopted on 23 January 1970), it noted that absolute privacy did not exist and a person had to come to terms with the fact that an interference with private life could take place at any time and place. The assessment of the seriousness of the interference had to be made by the domestic courts. 15. The Riga Regional Court then noted that the interference had to be assessed in the light of the person’s role in society and attitude to publicity. The child’s father, J.N., was a public figure – he was known as the former chair of a State-owned company, the current chair of a political party, and as the advertising face of Privātā Dzīve. In August 2003 Privātā Dzīve had published an article about J.N.’s divorce and about the fact that J.N. and the applicant had been expecting a child. The impugned article had been a continuation of that initial article and had informed the readers that the child mentioned in the article of 2003 had been born (confer paragraph 65 below). That information had been accompanied by nine photographs that formed an essential part of the article. The photographs had been taken in a public place – in the street – and the applicant had not been depicted in a humiliating manner. They had been taken to illustrate a specific event and had not been connected with following the applicant’s everyday life and covertly photographing intimate moments of her private life. 16. Furthermore, the impugned article had been written on the basis of the information provided by J.N. The applicant had had no grounds to believe that the information about the birth of her child would not be disseminated or that it would be relayed without mentioning her as the child’s mother. As a partner of a public person and a mother of his child, the applicant had to take into account that she could attract media attention and that articles might contain information about his family members, as had happened in the impugned “photo story”. The 2003 article had also featured the applicant’s photographs, to which she had not objected. The applicant’s attitude towards publicity had also been demonstrated in a subsequent interview, published in a different magazine in 2005, where she had given information about her private life, relationship with J.N., stance towards marriage, and her opinions as an activist for gender equality. In particular, the applicant had been quoted as having expressed awareness that the public had taken an interest in her owing to her being J.N.’s partner. 17. With respect to the applicant’s reliance on the Court’s 2004 judgment in the case of Von Hannover (cited above) the Riga Regional Court noted, firstly, that photographing a person in a public place, albeit without his or her consent, did not constitute an interference with private life. Furthermore, the Court’s interpretation of the Convention could only be applied if the factual circumstances of the two cases were identical. However, there were fundamental differences between the two cases. The photographing of the applicant had only taken place to reflect one particular event – the birth of J.N.’s child – and had not been connected with tracking her daily life; J.N. was a public person who had given information about the birth of his child; the impugned article had depicted the private life of J.N. and the applicant had been featured there only because she had been his partner and they had had a child. Accordingly, the applicant’s right to private life had not been breached. Appeal-on-points-of-law proceedings 18. In an appeal on points of law lodged by the applicant she argued that the appellate court had incorrectly applied the case-law of the Court. In particular, the Court’s case-law should be applied in a general manner, and not only in analogous factual circumstances. The appellate court had not analysed whether the interference in her private life had had a legitimate aim and whether it had been necessary in a democratic society, as required by Article 8 of the Convention. 19. On 22 September 2010 the Senate of the Supreme Court dismissed the applicant’s appeal on points of law. It endorsed the appellate court’s findings and reasoning, having found no support for the applicant’s assertion that there had been systematic flaws in the application of the Court’s case-law. Contrary to the applicant’s allegation, the appellate court had applied the principles established by the Court in its 2004 judgment in case of Von Hannover (cited above). 20. The Supreme Court considered the conclusion that the taking of photographs in a public place without the person’s consent did not constitute an interference with the right to private life to be in line with the Court’s case of Peck v. the United Kingdom (no. 44647/98, ECHR 2003 ‑ I). The appellate court had also rightly found that the photographs had not depicted the applicant in a humiliating manner and that they had been obtained to depict one particular event, and had not been the result of following her daily life or secretly photographing intimate moments of her life. As J.N. had informed the public about the pregnancy, the child’s birth and leaving hospital had been turned into a public event. 21. The Senate of the Supreme Court disagreed with the applicant that the appellate court had failed to assess whether the article depicting her private life had contributed to a public debate. Firstly, J.N. was a public person. Secondly, some aspects of their private life had already been disclosed in the 2003 article in Privātā Dzīve, where J.N.’s divorce and the applicant’s pregnancy had been mentioned. Thirdly, the 2003 article had stirred a debate about J.N.’s private life and family values, as at that time he had still been married to another woman. The impugned photographs had shown that the awaited event described in the 2003 article – the birth of the child – had taken place (confer paragraph 65 below). 22. The Senate of the Supreme Court also dismissed the applicant’s argument that her failure to challenge the 2003 article had not rendered future publication of her photographs lawful. As the applicant had not objected to the article in 2003, the journalist could have concluded that she would also have no objections against the publication of information and photographs about the birth of her child. The applicant had to take into account that articles about a public person might contain information about their family members. The “photo story” had depicted an event in J.N.’s private life and, in the absence of objections to the previous article, had also showed the applicant. | At the time of the events in question, the applicant was a lawyer and her partner was the chairperson of a political party and the face of an advertising campaign for a nationally available celebrity-focused magazine. Previously, he had headed a State-owned company. The case concerned surreptitiously taken photos of the applicant leaving a maternity ward and their subsequent publication with an accompanying article. the applicant alleged that the dismissal of her complaints regarding the publication of the covertly taken photos of her and her newborn baby had violated her rights. |
753 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 9. The applicants, N.A., N.A., A.A., J.Ö. and H.H., were born in 1926, 1956, 1954, 1949 and 1950 respectively and live in Antalya. 10. After surveys had been conducted by the Land Office between 1956 and 1958, a plot of land on the coast in the locality of Karasaz ( village of Çikcilli, district of Alanya, parcel no. 84 ) was entered in the land register in the name of R.A. 11. Following R.A.'s death, the applicants inherited the land and paid the appropriate taxes and duties on it. 12. On 25 June 1986 the applicants obtained a tourist investment certificate from the Ministry of Culture and Tourism with a view to building a hotel on the land. 13. On 9 July 1986 the State Planning Organisation awarded the applicants an investment incentive certificate, again for the purpose of building a hotel. Paragraph X of the certificate stated that the applicants had to obtain a tourism licence once the investment had been made. A. Proceedings against the applicants in the Alanya District Court for the cancellation of the entry in the land register 14. On 28 October 1986, after the applicants had started building the hotel, the Treasury instituted proceedings in the Alanya District Court, seeking an order for the cancellation of the entry of the property in the land register and for the demolition of the hotel. 15. An expert report of 31 October 1986 stated that parcel no. 84 was part of the coastline and could not be the subject of an acquisition. 16. On 31 October 1986 the District Court made an interim order for the suspension of building work on the hotel. 17. An expert report of 3 March 1987 pointed out that parcel no. 84 was part of the coastline and, as such, could not be owned by a private individual. 18. In a judgment of 16 June 1987 the District Court ordered the cancellation of the entry in the land register and the demolition of the partially built hotel. It made the following observations: “[ Having regard to] the expert report [and] ruling on the merits [of the case], ... having regard to the available evidence and, in particular, the photographs and all the other items in the file, the Court considers that the property in issue is part of the seashore [ Deniz kıyısı ]. Although coastlines remain outside the boundary delimited and fixed in decisions by certain commissions, they cannot constitute property that is subject to private ownership ... the registration of the property in the claimants'name does not confer any rights on them.” 19. On 9 December 1987 the District Court dismissed an appeal by the applicants against the interim order of 31 October 1986. 20. In a judgment of 12 February 1988 the Court of Cassation quashed the judgment of 16 June 1987 and remitted the case to the first-instance court. 21. In a judgment of 17 February 1989, disregarding the Court of Cassation's judgment, the District Court reaffirmed its initial ruling. It held: “... the disputed site is the responsibility and property of the State. In that respect there is no discrepancy with [the judgment] delivered by the plenary Court of Cassation. Even the State, when placing restrictions on the enjoyment of possessions in accordance with property law ..., cannot accept the existence of private property at such a site ... Although the property in issue in the present case was formerly situated within the coastal boundary, it was placed outside that boundary by [a decision of] the commission formed at a later date. The site was quite clearly located on a sandy beach, as, indeed, is apparent from previous judicial decisions that have become final, and from expert reports and photographs ...” 22. In a judgment of 18 October 1989 the plenary Court of Cassation upheld the judgment given by the lower court, finding it to have interpreted and applied the law correctly. 23. In a judgment given on an unspecified date the District Court confirmed its initial judgment. 24. In a judgment of 1 March 1990 the Court of Cassation upheld the judgment given at first instance. 25. In a judgment of 27 September 1990 it dismissed an application for rectification of the judgment. B. Proceedings for damages in the Alanya District Court 26. On 27 September 1991 the applicants brought an action for damages in the Alanya District Court on account of their loss of ownership and the demolition of the partially built hotel. 27. In a judgment of 1 April 1994 the District Court dismissed the applicants'action on the ground that the State was not liable for the damage resulting from the cancellation of the registration of the property in issue. In its reasoning it stated that the applicants had asserted, on the basis of the entries in the land register, that they had made investments in relation to the land in question and that, as a result of the proceedings brought by the Treasury for the cancellation of the registration, they had sustained a loss. The District Court explained its decision by pointing out that the applicants and their heirs would have been aware that the site was on sandy ground, and that it was impossible for them to maintain that the State had deceived them and for the principle of strict liability to be applied in their case. It concluded that no loss had resulted from the contents of the land register, that the entry had been unlawful from the outset and that the applicants were accordingly not entitled to take proceedings against the State to seek compensation for the loss sustained. 28. In a judgment of 28 November 1995 the Court of Cassation upheld the judgment given at first instance. 29. In a judgment of 9 December 1996 the Court of Cassation dismissed an application for rectification of the judgment. | In 1986 the applicants obtained a tourist-investment certificate from the authorities for the construction of a hotel on a plot of land they had inherited, located on the coast. On an appeal from the Public Treasury, a Court of First Instance annulled the registration of the property in the land register and ordered the demolition of the hotel that was being built, on the ground that the plot of land in question was located on the seashore and could not be privately acquired. The Court of Cassation upheld that judgment. The applicants were unsuccessful in bringing proceedings to claim damages for the loss of their property rights and for the demolition of the existing construction. Before the Court, they complained that they had not been compensated for the loss sustained as a result of the demolition of the hotel that was being built and the annulment of the registration of their property in the land register. |
987 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 and at the time of the events lived in Saray, Absheron region. 6. The facts of the case are similar to the application Rasul Jafarov v. Azerbaijan ( no. 69981/14, 17 March 2016) in that the applicant in the present case was arrested in the context of the same events and on the basis of similar charges. A. The applicant ’ s background 7. The applicant is a well-known human - rights lawyer and civil - society activist. He represents applicants before the Court in a large number of pending cases. 8. He is also the chairman of the Legal Education Society (“the Association”), a non-governmental organisation specialising in legal education. The Association was registered by the Ministry of Justice on 2 June 1999 and acquired the status of a legal entity. Its main functions consisted of raising legal awareness, organisation of training programmes for lawyers, human-rights defenders and journalists and preparation of reports relating to various human-rights issues in Azerbaijan. The Association was also involved in the preparation of applications to the Court and the submission of communications to the Committee of Ministers in the context of the execution of the Court ’ s judgments. 9. The applicant has collaborated with various international organisations on human - rights - related projects, including the European Programme for Human Rights Education for Legal Professionals (HELP) of the Council of Europe. 10. The applicant was involved, together with other human-rights defenders, in the preparation of a consolidated list of political prisoners in Azerbaijan. B. Circumstances preceding and surrounding the applicant ’ s arrest 11. On 24 June 2014, during the June session of the Parliamentary Assembly of Council of Europe (PACE), the applicant, along with other local human-rights defenders, including Mr Rasul Jafarov, participated as one of the speakers at a side event organised in the Council of Europe. During this meeting the applicant delivered a report on human - rights abuses in Azerbaijan. 12. According to the applicant, following his participation at the above event, a smear campaign was launched against him and other human-rights defenders by the pro-government media. For instance, on 4 July 2014 an online news portal affiliated with the authorities described the applicant, together with other human-rights defenders, as “ American agents who receive millions of dollars in grants for painting an anti-Azerbaijani picture ”. 13. On 14 August 2014, following the applicant ’ s arrest on 8 August 2014 (see paragraphs 2 2 -2 4 below), A.H., the Chairman of the Legal Policy and State Building Committee of the National Assembly, gave an interview to APA, a news agency, where he commented on the reactions to the arrests of the applicant and other human-rights defenders and stated: “... it is those [international organisations] which made them ‘ well- known ’. The [ se] organisations have had grants allocated to them in non-transparent ways, directing them into various activities, including those against Azerbaijan. These people, some of whom are traitors and some weak-minded, will at last answer before the law.” 14. On 15 August 2014 A.H., the head of the Department of Social and Political Issues of the Presidential Administration, stated the following in an interview with Trend news agency: “The most deplorable thing is that such NGOs and individuals and some journalists, relying on foreign circles funding them, placed themselves above national law, evaded registration of their grant projects, filing financial statements, taxes and other legal requirements.” 15. In an interview published on 2 September 2014 Y.M., a member of parliament from the ruling party, who was also the director of the Institute of History at the Academy of Sciences, stated the following in respect of the recently arrested NGO activists and human-rights defenders: “People who betray their motherland cannot be forgiven. ... The death penalty should be imposed on such people. Capital punishment must be the gravest punishment for them. Why should traitors be forgiven? ... Therefore, the activities of a number of non-governmental organisations must be investigated very seriously, and if any illegality is discovered, such organisations must be immediately banned and their leaders punished.” 16. On 3 September 2014 an online news portal Vestnik Kavkaza published an interview with R.M., the head of the Presidential Administration who stated, inter alia, the following: “Such NGOs as the Institute for Peace and Democracy, Institute for Reporters ’ Freedom and Safety, Legal Education Society, Monitoring and Teaching Democracy Center and others use big grants from foreign organisations under the guise of human ‑ rights protection to send reports to different quarters and organise anti ‑ Azerbaijani campaigns in international structures where Azerbaijan is represented. ” 17. On 3 December 2014 State-owned news agencies published a sixty ‑ page manifesto written by R.M., the head of the Presidential Administration, entitled “The World Order of Double Standards and Modern Azerbaijan”. The article accused human-rights NGOs operating in the country of being the “fifth column of imperialism”. It postulated that various, mostly US-sponsored, donor organisations such as the United States of America ’ s National Endowment for Democracy (NED), as well as other foreign organisations, supported political opposition movements in various countries against national governments. For local human-rights NGOs, the purpose of such funding schemes was the formation of a “fifth column” inside a country. US taxpayers ’ money was being spent on pushing for regime change or forcing existing governments to comply with US political demands. C. Criminal proceedings against the applicant and his remand in custody 18. On 13 May 2014 the Prosecutor General ’ s Office instituted criminal proceedings under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of non-governmental organisations, including the Association. 19. On 7 July 2014 the Sabail District Court ordered freezing of the applicant ’ s and the Association ’ s bank accounts. 20. On 8 August 201 4 the applicant was invited to the Prosecutor General ’ s Office for questioning as a witness in connection with the above ‑ mentioned criminal proceedings. The interview lasted about thirty minutes during which the applicant was questioned about his background, his family and activities of the Association. 21. Following the interview, the investigator issued a decision charging the applicant under Articles 192.2.2 (illegal entrepreneurship), 213.1 ( large ‑ scale tax evasion) and 308.2 ( aggravated abuse of power) of the Criminal Code. The description of charges consisted of a single sentence which was one page long and was similar to that used in the case of Rasul Jafarov ( cited above, § 16 ). The acts with which the applicant was charged appear as follows: – the applicant, acting in his capacity as chairman of the Association, had failed to inform the relevant executive authority of his appointment as head and representative of a legal entity in accordance with Article 9.3 of the Law on State Registration of Legal Entities and the State Register; – he had failed to register with the relevant executive authority various grant agreements which had been concluded since August 2012 with NED, Norway ’ s Human Rights House Foundation and other donor organisations and which had allocated to the Association for various projects certain sums in the total amount of 74,911.29 new Azerbaijani manats (AZN – approximately 7 1, 343 euros (EUR) at the material time ); – he had signed the said agreements on behalf of the Association without having legal authority to do so and had placed the above allocated sums in the bank accounts of the Association and then, by withdrawing cash, had made payments to himself and other people involved in the projects in the guise of salaries and service fees; – by failing to register the above grant agreements with the relevant executive authority, the applicant had been conducting illegal entrepreneurial activity and had thus profited in the amount of AZN 66,204.58 (approximately EUR 63, 051 at the material time ) and had avoided in this context payment of taxes in the amount of AZN 8,706.71 (approximately EUR 8, 291 at the material time ) which were due in accordance with Articles 124, 150.1.6, 218, 219 and 220 of the Tax Code. 22. On the same day the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor ’ s request for the application of the preventive measure of remand in custody, ordered the applicant ’ s detention for a period of three months. The court justified the application of remand in custody by the seriousness of the charges and the likelihood that if released he might abscond and influence other participants in the criminal proceedings. 23. On 11 August 2014 the applicant appealed against this decision, claiming that his detention was unlawful. He stated, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for the application of the preventive measure of remand in custody. He pointed out in this connection that the court had failed to justify his detention on remand and to take into account his personal circumstances, such as his social and family status, his state of health and his age, when it ordered his remand in custody. The applicant further complained, relying on Article 18 of the Convention, that the charges brought against him were politically motivated and that he had been deprived of his liberty because of his work as a human-rights activist. He submitted in this connection that the actual reason for his arrest had been the fact that he had represented numerous applicants before the Strasbourg Court in cases relating to election irregularities and that he had publicly accused the Government of human-rights abuses at a PACE event in June 2014. He argued that his arrest had been part of a general policy aimed at silencing and shutting down independent NGOs and human-rights defenders in the country. 24. On 13 August 2014 the Baku Court of Appeal dismissed the applicant ’ s appeal and found the first-instance court ’ s decision lawful. It referred to the seriousness of the charges and the likelihood that if released the applicant might abscond from the investigation, obstruct the proceedings and interfere with the course of justice. As regards the applicant ’ s complaints that the charges were politically motivated owing to his human ‑ rights activity, the court held that these allegations were unfounded as the applicant had been accused of committing financial crimes which could not be associated with any political motives. 25. On 3 September 2014 the applicant applied to the Nasimi District Court, requesting the substitution of remand with either house arrest or release on bail. In his application the applicant, among other things, reiterated his complaints to the effect that the acts attributed to him did not constitute a criminal offence and there was accordingly no reasonable suspicion of his having committed such an offence. 26. On 12 September 2014 the Nasimi District Court dismissed the application, finding that the risks that the applicant might abscond or otherwise upset the course of the proceedings or reoffend continued to pertain. 27. On 15 September 2014 the applicant appealed, reiterating his arguments. 28. On 22 September 2014 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 12 September 2014. 29. On 2 3 October 2014 the applicant applied again to the Nasimi District Court, requesting the substitution of remand with either house arrest or release on bail. 30. On 24 October 2014 the Nasimi District Court dismissed his application based on similar findings. 31. On the same date the Nasimi District Court extended the applicant ’ s pre-trial detention by three months, finding that the grounds justifying his continued detention “had not ceased to pertain ”. 32. On 27 October 2014 the applicant appealed against both decisions concerning his application for the substitution of remand with other alternative measures and the extension of his pre-trial detention. 33. On 29 October 2014 the Baku Court of Appeal dismissed both appeals and upheld the first-instance court ’ s above decisions. 34. On 12 December 2014 the Prosecutor General ’ s Office charged the applicant de novo. In addition to the original charges, the applicant was further charged under Articles 179.3.2 (high-level embezzlement) and 313 (forgery by an official ) of the Criminal Code. The acts imputed to the applicant under Article 213.1 ( large-scale tax evasion) of the Criminal Code were re-qualified under Article 213.2.2 (tax evasion on a very large scale ) of the Criminal Code. In particular, the period of time during which the applicant allegedly committed crimes was expanded from 2012 back to 2009 onwards. As regards the charges of embezzlement, the applicant was accused of transferring various amounts from the bank accounts of the Association to the bank account of one of the Association ’ s employees with a view to their subsequent withdrawing the cash. With respect to the charges concerning forgery, the applicant was accused of inserting false information into the cashbook concerning payments to various employees of the Association in the guise of salaries and services fees. As regards the re ‑ qualification of the crime of tax evasion, the total amount of alleged illegal profit obtained by the applicant was raised to AZN 496,729.25 (approximately EUR 4 73,075 at the material time ) and the amount of alleged unpaid taxes to AZN 65,636.85 (approximately EUR 62, 510 at the material time). 35. On 29 December 2014 the Prosecutor General ’ s Office drew up a bill of indictment and the case went to trial. D. Search and seizure in the applicant ’ s home and in the Association ’ s office 36. On 7 August 2014 the prosecutor in charge applied to the Nasimi District Court to have a search of the office of the Association (see paragraph 8 above) and “other places of storage” authorised. The prosecutor justified the search by referring to the criminal investigation under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code “into breaches of legislation discovered in the activities of a number of non-governmental organisations and branches and representatives offices of foreign non-governmental organisations in Azerbaijan”. 37. On the same day the Nasimi District Court authorised a search of the Association ’ s office and “other places of storage”. The relevant parts of the decision read as follows: “ [The prosecutor in charge of the case] applied to the court with a request to conduct a search and seizure in the framework of the criminal case no. 142006023. [ The prosecutor in charge] justified his request by [ the following: ] ... this criminal case concerns an investigation under Articles 308.1 [abuse of power] and 313 [forgery by an official] of the Criminal Code into breaches of legislation discovered in the activities of a number of non-governmental organisations and branches and representatives offices of foreign non-governmental organisations in Azerbaijan. Given that the evidence gathered gives grounds [to conduct a search], it is necessary for the purpose of carrying out a comprehensive, thorough and objective investigation to conduct a search [ of the Association ’ s] office located at [office address ] ... and other places of storage ... Having regard to the above, for the purpose of conducting a comprehensive, thorough and objective investigation, a search and seizure is requested of [the Association ’ s] office located at [office address] ... and other places of storage. The court considers that for the purpose of conducting a comprehensive, thorough and objective investigation it is necessary to conduct a search and seizure [ of the Association ’ s] office located at [office address] ... and other places of storage.” 38. On 8 August 2014 the investigator carried out a search of the applicant ’ s home on the basis of the Nasimi District Court ’ s decision of 7 August 2014. According to the search record of 8 August 2014, the search was carried out in the presence of the applicant ’ s lawyer, members of his family and two attesting witnesses ( hal şahidləri ). The investigator seized all the documents, computers, USB flash drives and other electronic data storage devices. On the same day the investigator also carried out a search of the home of the applicant ’ s brother where the applicant was officially registered as a resident. 39. On 9 August 2014 the investigator carried out a search of the Association ’ s office. It appears from the search record of 9 August 2014 that the investigator seized all the documents found in the office, including documents related to the Association ’ s activities and case files concerning over a hundred applications pending before the Court and documents related to the proceedings before the domestic courts. 40. On an unspecified date the applicant lodged a complaint with the Nasimi District Court, claiming that the searches had been unlawful. Relying on Article 8 of the Convention, he complained that there had been no legal basis for carrying out the searches. He also complained that the investigator had failed to record each seized document as required by the relevant law and had taken the documents without making an inventory. He further complained of the seizure of numerous documents and files relating to the ongoing court proceedings before the Court and the domestic courts. 41. On 12 September 2014 the Nasimi District Court dismissed the applicant ’ s claim. The first-instance court held that the searches had been conducted in accordance with the relevant law. As to the seizure of the documents relating to the cases pending before the Court and the domestic court, it found that they could not be returned to the applicant at this stage of the proceedings. 42. On 15 September 2014 the applicant appealed against this decision, reiterating his previous complaints. He asked, in particular, the appellate court to declare the searches unlawful, to order the return of the documents relating to the cases pending before the Court and the domestic courts, and to provide him with a copy of all the seized documents in order to prepare his defence. 43. On 23 September 2014 the Baku Court of Appeal dismissed the applicant ’ s appeal and upheld the first-instance court ’ s decision of 12 September 2014. E. The applicant ’ s conditions of detention and his medical treatment in detention 1. The applicant ’ s conditions of detention in the detention facility (a) The applicant ’ s account 44. Following his arrest, the applicant was placed in the Baku pre-trial detention facility in Kurdakhani. 45. From 9 to 12 August 2014 the applicant was held in a so - called “quarantine” cell designed for the admission of newcomers. He was detained in this cell, which according to him measured approximately 10 sq. m, together with eight other detainees. The applicant did not have his own bed and had to share beds with others. The cell was not adequately ventilated and, although all the detainees were smokers except the applicant, there was no special place for smoking. The temperature inside the cell was very high. The applicant had no access to outdoor exercise and was confined to his cell for the whole day. There was no bathroom and the sanitary conditions were very bad. Water supply was available only two hours per day. The light was always on. 46. As from 12 August 2014, following a visit of a delegation from the International Committee of the Red Cross, the applicant was transferred to another cell. He was then detained in a cell measuring 12 -14 sq. m together with three other detainees. The applicant had his own bed and bedding. There was a small window in the cell. However, the cell was not adequately ventilated and the temperature inside the cell was very high in August and September and very low in winter because the central - heating system was turned on only after 15 November. There was no fresh air in the cell and while there was a yard of 10 sq. m adjacent to the cell, it was closed after 4 p.m. every day. The light in the cell was never switched off, contributing further to the lack of sleep. Cold water was provided every few hours, but hot water was available only twice per week. 47. The food served in the detention facility was meagre and of poor quality and had to be supplemented with food sent by the applicant ’ s family. However, the applicant was entitled to receive only one parcel of food per week and there was no possibility to keep food fresh because of the absence of a refrigerator. 48. The applicant was confined to his cell for most of the day. There was an exercise room in the detention facility, but detainees were not allowed to use it. (b) The Government ’ s account 49. Without specifying the relevant periods of the applicant ’ s detention, the Government submitted that the applicant had been detained with three other detainees in the cell measuring 17. 82 sq. m. , which was designed to accommodate four persons. The cell had been adequately lit and ventilated. There had been one window in the cell measuring 120 by 140 cm. Sanitary facilities had been separated by a plastic door and consisted of a toilet, a sink and a shower. The applicant had been provided with a separate bed and bedding, water, food and other necessities. In support of their account the Government submitted a copy of a certificate issued by the Prison Service which provided a general overview of the Baku pre- trial detention facility. 2. The applicant ’ s state of health and medical treatment in detention 50. The applicant suffered from a number of conditions before his arrest. In particular, he suffered from osteochondrosis of the vertebral column, abnormal blood pressure, thrombophlebitis, prostatic hyperplasia, insomnia and headaches and had neurological and urological problems. 51. According to the applicant, his state of health significantly deteriorated following his arrest because of the interruption and postponement of medical treatment that he had been undergoing before his arrest. 52. On 24 October 2014 during a hearing at the Nasimi District Court the applicant felt unwell and fainted in the courtroom. The applicant ’ s lawyer immediately lodged an application with the judge, asking for the applicant ’ s examination by a medical expert in order to establish whether his state of health was compatible with his detention. The judge decided to forward the request to the Serious Crimes Department of the Prosecutor General ’ s Office, without taking further action. 53. On 24 October 2014 the applicant ’ s lawyer also lodged an application with the head of the detention facility, asking for the applicant to receive adequate medical treatment. 54. On 25 and 27 October 2014 the applicant underwent medical examinations, including a MRI scan of his brain and vertebral column in the National Oncology Centre in Baku. According to the results of the scan, there was no pathology in the brain or the vertebral column. The results of the scan revealed the presence of osteochondrosis of the vertebral column, a hernia in the vertebral column and disc protrusions in the following areas of the vertebral column: C 4-5, C 5-6, C 6-7, L 2-3, L 4-5. The doctors, however, concluded that none of these hernias or disc protrusions required surgery or inpatient treatment and prescribed outpatient treatment. The ultrasound examination of the abdominal zones showed enhanced parenchymal echogenicity of the left kidney, and some hydronephrosis and some kidney stones in the renal collecting system. Small masses were detected in the prostate. In order to determine whether there was pathological process in the prostate, the applicant was subjected to a specific prostate blood test, PSA (Prostate-Specific Antigen), and the result of the test was satisfactory. 55. On 28 October 2014 the applicant asked the head of the detention facility to inform him of the results of the medical examinations. 56. On 31 October 2014 the applicant was officially informed of the results of the medical examinations. However, according to the applicant, he was not provided with copies of these results. 57. On 11 November 2014 the applicant ’ s lawyer asked the head of the detention facility to provide him with copies of the results of the applicant ’ s medical examinations. It is not clear from the case-file whether the applicant was provided with those documents. 58. By a decision of 14 November 2014, the investigator in charge of the case dismissed a request by the applicant for examination by a forensic expert, finding that the applicant had undergone the relevant medical examinations and there was no need for his examination by a forensic expert. 59. On 20 November 2014 the applicant lodged a request with the prosecution authorities and the administration of the detention facility, asking them to allow his medical examination by two independent doctors, I.H. and A.G. 60. By a decision of 28 November 2014, the investigator in charge of the case dismissed the applicant ’ s request, finding that he had failed to substantiate his request. 61. By a letter of 2 December 2014, the medical department of the Ministry of Justice informed the applicant that he had undergone the relevant medical examinations and a conservative treatment had been prescribed for him. 62. In December 2014 the applicant was examined by the neurologist, who prescribed anti - anxiety drugs. The applicant was also seen by an ophthalmologist and a psychiatrist, and underwent an ultrasound examination. 63. On 26 December 2014 the applicant stopped taking the anti - anxiety drugs prescribed. According to the applicant, he decided not to take the drugs owing to the serious side effects, such as appearance of suicidal behaviour. 64. According to the Government, on 19 February 2015 the applicant was examined in the Neurosurgery Hospital by the country ’ s leading doctors. The laboratory and ultrasound examination did not reveal any cancer - related anomalies. 3. The applicant ’ s conditions of transport to and the conditions of detention in the court-house 65. According to the applicant, he was transported several times to and from the Baku pre ‑ trial detention facility. The distance between the detention facility and the court-house was about 15-20 km. 66. The applicant and other detainees were transported in special vans and the journey usually lasted about one hour. According to the applicant, the vehicles were in poor condition and there was no appropriate place to sit or stand inside. Allegedly, no ventilation or air conditioning was available. 67. On 24 October 2014 the applicant was transported to the Nasimi District Court together with nine other detainees, in a van allegedly designed for eight people. 68. He was detained in a room situated in the basement of the court-house. According to the applicant, the room was not ventilated and did not allow access to daylight. There was only one little window which had metal bars and was not open. The room was small and measured 4-5 sq. m. The applicant shared this room with four detainees all day waiting for his hearing. He was allegedly not provided with food and water. 4. The applicant ’ s attempts to obtain redress for the alleged lack of medical treatment and poor conditions of detention 69. On 28 January 2015 the applicant lodged under the Code of Criminal Procedure a complaint with the Sabunchu District Court against the Baku pre- trial detention facility, complaining about his conditions of detention and of the lack of adequate medical treatment. 70. On 8 February 2015 the court left the applicant ’ s complaint without examination for lack of jurisdiction as the investigation had been already completed and his criminal case had gone to trial. 71. On 25 February 2015 the Baku Court of Appeal upheld the above decision. F. The applicant ’ s criminal conviction and subsequent release from detention 72. On 22 April 2015 the Baku Assize Court convicted the applicant as charged under Articles 179.3.2, 192.2.2, 213.2.2, 308.2 and 313 of the Criminal Code (see paragraphs 21 and 34 above) and sentenced him to seven and a half years ’ imprisonment. 73. On 21 July 2015 the Baku Court of Appeal upheld the applicant ’ s conviction and sentence. 74. On 24 February 2016 the Supreme Court upheld the Baku Court of Appeal ’ s judgment of 21 July 2015. 75. On an unspecified date the Prosecutor General lodged an application for supervisory review with the Plenum of the Supreme Court on the ground of the severity of the sentence imposed on the applicant. 76. On 28 March 2016 the Plenum of the Supreme Court granted the application and reduced the applicant ’ s sentence to five years ’ imprisonment suspended on probation. The applicant was released from detention. 77. The applicant ’ s criminal trial is the subject of a separate application which is pending before the Court (application no. 51324/16). III. COUNCIL OF EUROPE COMMITTEE OF MINISTERS DOCUMENTS CONCERNING THE EXECUTION OF THE ILGAR MAMMADOV GROUP OF CASES 81. Supervision of the execution of the Court ’ s judgments in the cases of Ilgar Mammadov v. Azerbaijan ( no. 15172/13, 22 May 2014, final on 13 October 2014) and Rasul Jafarov ( cited above, final on 4 July 2016 ) is done by the Committee of Ministers under enhanced procedure. According to the Committee of Ministers ’ decision CM/Del/Dec(2016)1273, adopted during its 1273 DH meeting (December 2016), the Rasul Jafarov case was classified as a clone of the “ Ilgar Mammadov group of cases” in respect of the general measures. 82. During the first examination of the Ilgar Mammadov case at its 1214th meeting ( December 2014 ), the Committee, in the context of general measures, “conveyed its particular concern about the finding of a violation of Article 18 taken in conjunction with Article 5 of the Convention” and “therefore called upon the Azerbaijani authorities to furnish, without delay, concrete and comprehensive information on the measures taken and/or planned to avoid that criminal proceedings are instituted without a legitimate basis and to ensure effective judicial review of such attempts by the prosecutor ’ s office”. 83. The Committee further examined this case at each of its Human Rights meetings and has repeated the above request at every examination of this case. Notably, at its 1236th meeting (September 2015), the Committee of Ministers adopted an Interim Resolution (CM/ ResDH ( 2015)156) in which it “expressed its deepest concern in respect of the lack of adequate information on the general measures envisaged to avoid any circumvention of legislation for purposes other than those prescribed, which represents a danger for the respect of the rule of law”. 84. At its 1273rd meeting (December 2016), the Committee again “expressed its deep concern about the absence of any information from the authorities concerning the general measures taken or envisaged to prevent violations of the rule of law through abuse of power of the kind established in the European Court ’ s Ilgar Mammadov judgment”. 85. On 14 February 2017 the Azerbaijani Government submitted an action plan on the measures taken and planned (DH- DD( 2017)172). The action plan highlighted, in particular, the Executive Order signed by the President of Azerbaijan on 10 February 2017. In this context, the action plan indicated the following: “ ... [ the ] Executive Order covers a number of questions raised by the Court in its judgment, including existence of reasonable suspicion of having committed an offence at the time of arrest and consideration of alternative measures of restraint by relevant authorities. Further humanisation of penal policies in Azerbaijan has been listed among the aims of the document. It says that, in application of measures of restraint by investigation authorities and courts, provisions of criminal procedure law concerning grounds for arrest shall be strictly complied with, and the level of application of alternative sanctions and measures of procedural compulsion shall be extended to attain aims of punishment and of measure of restraint through non-custodial means. The President of the Republic of Azerbaijan has recommended to the Supreme Court, the General Prosecutor ’ s Office and instructed the Ministry of Justice with elaboration, within two months, of the draft laws concerning decriminalisation of certain crimes; provision of the sentences alternative to imprisonment; development of grounds for non-custodial measures of restraint and sentences alternative to imprisonment; wider application of institutions of substitution of remainder of imprisonment by lighter punishment, parole and suspended sentence; extension of cases of application of measures of restraint alternative to arrest; simplification of rules for amendment of arrest by alternative measures of restraint; and further limitation of grounds for arrest for low-risk or less serious crimes. The President has also recommended to the Office of the Prosecutor General to start with examination of alternative measures of restraint when considering motions for arrest. It has also been recommended to the courts that they examine the existence of reasonable suspicions of individual ’ s having committed an offence and grounds for arrest, when deciding on measure of restraint, and arguments in favour of alternative measures. According to Executive Oder, the Supreme Court shall hold continued analysis of case law of the courts concerning application of arrest and imposition of imprisonment ... ” 86. At its 1294th meeting (September 2017), the Committee, as regards the general measures, noted with interest the information provided about the progress of the implementation of the Presidential Order of 10 February 2017 and invited the authorities to provide detailed information about the legislative amendments foreseen in this regard. The Committee also urged the authorities to provide information on the other measures foreseen in the Presidential Order of relevance for the prevention of violations of the rule of law through abuse of power of the kind established in the European Court ’ s judgments in the Ilgar Mammadov group of cases. 87. The Government of Azerbaijan subsequently informed the Committee of Ministers that, in addition to a number of measures taken pursuant to the Executive Order of 10 February 2017 (see paragraph 85 above), on 20 October 2017 the National Assembly had adopted the Law on Amendments to the Criminal Code decriminalising certain acts and creating the possibility for those convicted for serious crimes to apply for conditional release after having served two-thirds of a criminal sentence. IV. INTERNATIONAL MATERIAL CONCERNING THE PROTECTION OF HUMAN-RIGHTS DEFENDERS A. United Nations 88. On 17 December 2015 the General Assembly of the United Nations, at its seventieth session, adopted a Resolution on Human rights defenders in the context of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms. The most relevant passages of the Resolution read as follows: “The General Assembly ... ... 1. Stresses that the right of everyone to promote and strive for the protection and realization of human rights and fundamental freedoms without retaliation or fear thereof is an essential element in building and maintaining sustainable, open and democratic societies; 2. Calls upon all States to take all measures necessary to ensure the rights and safety of human rights defenders who exercise the rights to freedom of opinion, expression, peaceful assembly and association, which are essential for the promotion and protection of human rights; ... 4. Urges States to acknowledge through public statements, policies or laws the important and legitimate role of individuals, groups and organs of society, including human rights defenders, in the promotion of human rights, democracy and the rule of law, as essential components of ensuring their recognition and protection, including by condemning publicly all cases of violence and discrimination against human rights defenders, including women human rights defenders, underlining that such practices can never be justified; 5. Strongly condemns the violence against and the targeting, criminalization, intimidation, torture, disappearance and killing of any individuals, including human rights defenders, for reporting and seeking information on human rights violations and abuses, and stresses the need to combat impunity by ensuring that those responsible for violations and abuses against human rights defenders, including against their legal representatives, associates and family members, are promptly brought to justice through impartial investigations; 6. Condemns all acts of intimidation and reprisal by State and non-State actors against individuals, groups and organs of society, including against human rights defenders and their legal representatives, associates and family members, who seek to cooperate, are cooperating or have cooperated with subregional, regional and international bodies, including the United Nations, its representatives and mechanisms, in the field of human rights; ... 8. Calls upon States to take concrete steps to prevent and put an end to the arbitrary arrest and detention of human rights defenders, and in this regard strongly urges the release of persons detained or imprisoned, in violation of the obligations and commitments of States under international human rights law, for exercising their human rights and fundamental freedoms, such as the rights to freedom of expression, peaceful assembly and association, including in relation to cooperation with the United Nations or other international mechanisms in the area of human rights; ... 12. Encourages States to develop and put in place sustainable public policies or programmes that support and protect human rights defenders at all stages of their work in a comprehensive manner; ... 19. Strongly calls upon all States: (a) To refrain from, and ensure adequate protection from, any act of intimidation or reprisal against human rights defenders who cooperate, have cooperated or seek to cooperate with international institutions, including their family members and associates ... ” B. Council of Europe 89. On 6 February 2008 at its 1017th meeting the Committee of Ministers adopted a Declaration on Council of Europe action to improve the protection of human-rights defenders and promote their activities. The most relevant parts of the Declaration read as follows: “The Committee of Ministers of the Council of Europe ... ... 1. Condemns all attacks on and violations of the rights of human rights defenders in Council of Europe member States or elsewhere, whether carried out by state agents or non-state actors; 2. Calls on member States to: i ) create an environment conducive to the work of human rights defenders, enabling individuals, groups and associations to freely carry out activities, on a legal basis, consistent with international standards, to promote and strive for the protection of human rights and fundamental freedoms without any restrictions other than those authorised by the European Convention on Human Rights; ii) take effective measures to protect, promote and respect human rights defenders and ensure respect for their activities; iii ) strengthen their judicial systems and ensure the existence of effective remedies for those whose rights and freedoms are violated; iv) take effective measures to prevent attacks on or harassment of human rights defenders, ensure independent and effective investigation of such acts and to hold those responsible accountable through administrative measures and/or criminal proceedings ... ” 90. On 27 June 2012 the Parliamentary Assembly adopted Resolution 1891 (2012) on the situation of human rights defenders in Council of Europe member States, which in the relevant parts read as follows: “4. The Assembly ... recalls that the responsibility for promoting and protecting human rights defenders lies first and foremost with States. 5. The Assembly therefore calls on the member States of the Council of Europe to: 5.1. ensure full observance of the human rights and fundamental freedoms of human rights defenders, as guaranteed by the European Convention on Human Rights (ETS No. 5); 5.2. put an end to any administrative, fiscal or judicial harassment of human rights defenders and ensure, in all circumstances, that they are able to carry out their activities in accordance with international human rights standards and relevant national legislation ... ” 91. On 26 June 2018 the Parliamentary Assembly adopted Resolution 2225 (2018) on protecting human rights defenders in Council of Europe member States, which in the most relevant parts read as follows: “1. The Parliamentary Assembly recalls its Resolutions 1660 (2009) and 1891 (2012) on the situation of human rights defenders in Council of Europe member State and its Resolution 2095 (2016) and Recommendation 2085 (2016) on strengthening the role and protection of human rights defenders in Council of Europe member States. It pays tribute to the invaluable work of human rights defenders for the protection and promotion of human rights and fundamental freedoms. Human rights defenders are “those who work for the rights of others” – individuals or groups who act, in a peaceful and legal way, to promote and protect human rights, whether they are lawyers, journalists, members of non-governmental organisations or others. ... 3. The Assembly notes that in the majority of Council of Europe member States, human rights defenders are free to work in an environment conducive to the development of their activities. Nevertheless, it notes that over the past few years the number of reprisals against human rights defenders has been on the rise. New restrictive laws on NGO registration and funding have been introduced. Many human rights defenders have been subject to judicial, administrative or tax harassment, smear campaigns and criminal investigations launched on dubious charges, often related to alleged terrorist activities or purportedly concerning national security. Some of them have been threatened, physically attacked, arbitrarily arrested, detained or imprisoned. Others have even been assassinated. As a result, the space for human rights defenders ’ action is becoming more and more restricted and less safe. 4. The Assembly condemns these developments and reaffirms its support for the work of human rights defenders ... 5. The Assembly therefore calls on member States to: 5.1. respect the human rights and fundamental freedoms of human rights defenders, including their right to liberty and security, a fair trial and their freedoms of expression and assembly and association; 5.2. refrain from any acts of intimidation or reprisal against human rights defenders and protect them against attacks or harassment by non-State actors; ... 5.5. conduct effective investigations into all acts of intimidation or reprisal against human rights defenders, and especially cases of assassinations, physical attacks and threats; 5.6. ensure an enabling environment for the work of human rights defenders, in particular by reviewing legislation and bringing it into line with international human rights standards, refraining from organising smear campaigns against defenders and other civil society activists and firmly condemning such campaigns where organised by non-State actors; ... 5.10. fully co-operate with the Council of Europe Commissioner for Human Rights in addressing individual cases of persecution and reprisals against human rights defenders; 5.11. evaluate the sufficiency in practice, as measured by concrete results, of their efforts taken to protect human rights defenders since the adoption of the United Nations Declaration on Human Rights Defenders and the Committee of Ministers ’ Declaration on Council of Europe action to improve the protection of human rights defenders and promote their activities. ... ” C. Organization for Security and Co-operation in Europe (OSCE) 92. On 10 June 2014 the OSCE Office for Democratic Institutions and Human Rights (ODIHR) published Guidelines on the Protection of Human Rights Defenders, the most relevant parts of which read as follows: “4. Need for protection of human rights defenders : Human rights defenders face specific risks and are often targets of serious abuses as a result of their human rights work. Therefore, they need specific and enhanced protection at local, national and international levels. Certain groups of human rights defenders are exposed to heightened risks due to the specific nature of their work, the issues they are working on, the context in which they operate, their geographical location or because they belong to or are associated with a particular group. 5. The nature of state obligations : The primary responsibility for the protection of human rights defenders rests with states. States have both positive and negative obligations with regard to the rights of human rights defenders. In line with their duties under international law – according to which they must respect, protect and fulfill human rights – they have an obligation to: a) refrain from any acts that violate the rights of human rights defenders because of their human rights work; b) protect human rights defenders from abuses by third parties on account of their human rights work and to exercise due diligence in doing so; and c) take proactive steps to promote the full realization of the rights of human rights defenders, including their right to defend human rights. 6. A safe and enabling environment to empower human - rights work : Effective protection of the dignity, physical and psychological integrity, liberty and security of human rights defenders is a pre-requisite for the realization of the right to defend human rights. Furthermore, a safe and enabling environment requires the realization of a variety of other fundamental human rights that are necessary to carry out human rights work, including the rights to freedom of opinion and expression, peaceful assembly and association, the right to participate in public affairs, freedom of movement, the right to private life and the right to unhindered access to and communication with international bodies, including international and regional human rights mechanisms. ... B. Protection from judicial harassment, criminalization, arbitrary arrest and detention 23. Human rights defenders must not be subjected to judicial harassment by unwarranted legal and administrative proceedings or any other forms of misuse of administrative and judicial authority, or to criminalization, arbitrary arrest and detention, as well as other sanctions for acts related to their human rights work. They must have access to effective remedies to challenge the lawfulness of detention or any other sanctions imposed on them. Criminalization and arbitrary and abusive application of legislation 24. States should review the domestic legal framework relevant to human rights defenders and their activities for its compliance with international human rights standards. They should broadly and effectively consult with human rights defenders and seek international assistance in doing so. Any legal provisions that directly or indirectly lead to the criminalization of activities that are protected by international standards should be immediately amended or repealed. ... 26. Laws, administrative procedures and regulations must not be used to intimidate, harass, persecute or retaliate against human rights defenders. Sanctions for administrative or minor offences must always be proportionate and must be subject to the possibility of appeal to a competent and independent court or tribunal. 27. States should take steps, where required, to strengthen the independence of the judiciary and prosecution authorities, as well as the proper functioning of law enforcement bodies, to ensure that human rights defenders are not subjected to politically-motivated investigations and prosecutions or to the otherwise abusive application of laws and regulations for their human rights work. 28. Effective oversight mechanisms should be put in place to investigate possible misconduct by law enforcement and judicial officials concerning the judicial harassment of human rights defenders. In addition, any structural shortcomings that may give rise to the abuse of power or corruption within the judiciary and law enforcement should be rigorously addressed. ... Arbitrary detention and treatment in detention 31. States should not subject human rights defenders to arbitrary deprivation of liberty because of their engagement in human rights activity. Any form of deprivation of liberty must be based on and in accordance with procedures established by law, subject to the possibility for the detained to challenge the legality of detention before a competent court and otherwise comply with international human rights standards ... ” | This case concerned the detention of a lawyer and human rights activist on charges including illegal entrepreneurship, embezzlement and tax evasion. The applicant complained in particular that the authorities had failed to provide reasonable and well-documented evidence that he had committed the crimes in question. He also alleged that his rights had been restricted for purposes other than those prescribed in the Convention. |
722 | Access to court | I. THE CIRCUMSTANCES OF THE CASE 9. The applicants live in the villages of Villigen, Würenlingen, Böttstein and Kleindöttingen, situated in zone 1 in the vicinity of unit II of a nuclear power plant in Beznau (Canton of Aargau ). They either own or rent property. The Beznau II nuclear power plant consists of a dual-loop pressurised water reactor. The site is situated five kilometres from the German border. A. The application for an operating licence 10. On 18 December 1991, the Nordostschweizerische Kraftwerke AG (“NOK”), a private company which had operated the nuclear power plant since 1971, applied to the Swiss Federal Council (the government) for an extension of its operating licence for an indefinite period. The application was supported by a technical report and a safety analysis report established by NOK. The application and these reports were published in the Official Journal ( Amtsblatt ) of the Canton of Aargau of 27 January 1992 and in the Official Gazette of 28 January 1992 together with a notice inviting persons satisfying the requirements laid down by sections 6 and 48 of the Federal Administrative Proceedings Act (see paragraph 28 below) to file an objection. 11. By 28 April 1992 more than 18,400 objections were lodged by virtue of these provisions with the Federal Energy Office, a large part of which came from Germany and Austria. More than 99% of the objections were photocopies. 12. In their objections the complainants requested the Federal Council to refuse an extension of the operating licence and to order the immediate and permanent closure of the nuclear power plant. They attached an expert opinion of the Institute for Applied Ecology ( Öko-Institut – Institut für angewandte Ökologie e. V. ) in Darmstadt, Germany, to their objections, namely a report of April 1992 on selected aspects of the safety analysis report produced by NOK in December 1991. Relying in particular on section 5(1) of the Nuclear Energy Act (see paragraph 22 below), they opposed the application for an extension of the operating licence because of the risks which they maintained such an extension entailed for their rights to life, to physical integrity and of property. According to them, the nuclear power plant did not meet current safety standards on account of serious and irremediable construction defects and, owing to its condition, the risk of an accident occurring was greater than usual. They also requested that in the meantime certain provisional measures be taken. The complainants also disputed the impartiality of the administrative bodies involved in the proceedings. With regard to the fact that under the applicable law the Federal Council would consider the application for an operating licence as an authority of both first and last instance, they invoked their right of access to a court, as guaranteed by Article 6 § 1 of the Convention. 13. On 5 February 1993 the Federal Department of Transport, Communications and Energy, as the competent body deciding prior to the decision of the Federal Council, rejected the requests for provisional measures. B. The Federal Council's decision 14. On 12 December 1994 the Federal Council dismissed all the objections as being unfounded and granted NOK a limited operating licence expiring on 31 December 2004. The licence was subject to compliance with various specific conditions concerning, for instance, threshold levels for radioactive substances, tests of the safeguard system, improvements of the feedwater system, a systematic programme, specific to the Beznau II nuclear power plant, for ageing surveillance and various other continuous technical improvements of the plant. NOK was also requested to submit periodically updated safety reports. 15. In its decision the Federal Council relied on a safety evaluation report established by the Swiss Nuclear Safety Inspectorate ( Hauptabteilung für die Sicherheit der Kernanlagen – “ HSK ”). The report gave the results from the point of view of nuclear safety and radiation protection, including conclusions and proposals for licence conditions to be formulated in the licensing decision. The Federal Council further relied on an opinion of the Nuclear Technology and Safety Section of the Federal Energy Office, a statement of the Swiss Federal Nuclear Safety Commission ( Eidgenössische Kommission für die Sicherheit von Kernanlagen – “ KSA ”) on basic aspects of the application and on the safety evaluation report of the HSK and the view expressed by the cantonal authorities. With regard to the complainants living in Austria, the Federal Council considered that these persons had no locus standi on the ground that they were not exposed to a significantly higher risk than that existing for the population in general, in view of the distance between the nuclear power plant and the Swiss-Austrian border. As to the remaining complainants, the Federal Council was satisfied that certain complainants lived in zone 1 around the nuclear power plant and were therefore entitled to take part in the proceedings. The Federal Council observed that although power stations built twenty years earlier certainly no longer met current technical standards, they could nonetheless be maintained and modernised so that they could continue to operate quite safely. In order to satisfy itself that this was so in the case under review, the Federal Council considered each of the objections in turn. It examined in particular the complainants' objections relating to the emergency cooling system and the residual heat removal, the emergency feed system, the reactor containment and pressure-limiting system, the fire-protection, the emergency power supply, the emergency boronising system, the control circuits and outside influences, such as plane crashes and actions by third parties. The Federal Council observed that since the Beznau II nuclear power plant had come into operation various backfittings to improve the safety of the power plant had been carried out. It referred to the emergency standby system and improved power supply system (NANO), put into operation in 1992, and the filtered containment venting system. Furthermore the results of the probabilistic safety analysis carried out at the Beznau II nuclear power plant showed that a nuclear accident was unlikely. The Federal Council gave detailed reasons why it found the objections to be unfounded and concluded that on the basis of the evidence submitted no relevant deficiencies could be established. The Federal Council further pointed out that an assessment of the organisation, management and staff situation at the Beznau II nuclear power plant presented a positive overall picture. The Federal Council further observed that by voting against the popular initiative of 23 September 1990 (see paragraphs 20-21 below) “For the Progressive Abandonment of Nuclear Energy” the Swiss people and the majority of the cantons had expressed the wish to continue using nuclear energy. With regard to the complaint based on the right to life, the Federal Council pointed out that this right was protected by the Constitution and drew attention to the position under the Federal Court's case-law, whereby only deliberate infringements could constitute a breach of that right. That did not apply to the operation of a nuclear power plant, at least so long as appropriate technical and operating procedures were adopted to prevent such an infringement and so long as these could reasonably be considered to provide a level of protection comparable to that existing in other generally accepted technical installations. With regard to the reactor accident at Chernobyl, the Federal Council stated that the reactor of the Chernobyl nuclear power plant was technically not comparable to a light-water reactor like that of the Beznau II power plant. Furthermore the Chernobyl reactor had never undergone a safety review process as normally carried out in western countries. The Chernobyl power plant was therefore not relevant in the context of the assessment of the risks of western nuclear power plants. The Federal Council also pointed out that, in accordance with the Agreement of 10 August 1982 between the government of the Swiss Confederation and the government of the Federal Republic of Germany on mutual information on the construction and operation of nuclear installations in the vicinity of the border, the German authorities had been provided with the relevant documents relating to the requested operating licence for the Beznau II power plant. From the beginning, this subject had been discussed during the sessions of the German-Swiss Commission on the Safety of Nuclear Installations ( Deutsch-Schweizerische Kommission für die Sicherheit kerntechnischer Einrichtungen – “ DSK ”). In its report adopted at its session held from 5 to 7 October 1994 this commission had expressed the view that, if the terms of the licence were observed, the Beznau II nuclear power plant would operate safely. There would be no risk for the population of the Federal Republic of Germany. C. Further developments 16. Following the decision of the Federal Council, the Beznau II nuclear power plant, like all the Swiss nuclear installations, was subject to official surveillance by the HSK in all matters regarding nuclear safety and radiation protection. The HSK presented annual reports giving a concise evaluation of the conditions and standards of operation of the Beznau II power plant. It followed from these reports that the condition of the power plant with regard to nuclear safety and radiation protection and also to its operation had been rated as good. It followed in particular from the annual report of 1997 that the notifiable incidents which had occurred were of minor relevance to nuclear safety. Appropriate improvements had been carried out. However, further efforts were needed in order to recognise problems in the area of human behaviour and organisational management. Since 1996, the Beznau II power plant had followed an ageing surveillance programme as a permanent task for its safety-relevant plant components. The relevant documentation examined by the HSK had not revealed any safety-relevant gaps in the maintenance programmes. Furthermore, these results indicated that no unacceptable reduction in safety-related properties was to be expected in the near future. As to the requirements in connection with the operating licence of 12 December 1994 the HSK stated that all conditions which were associated with deadlines had been complied with and some conditions had in part to be updated periodically with respect to plant documentation and analyses. 17. From 13 November to 1 December 1995 a mission of the Operational Safety Assessment Review Team (OSART) from the International Atomic Energy Agency (IAEA) was conducted at the Beznau II power plant. The experts noted especially “the stringent requirements with regard to quality and safety, the professional qualities of the staff at all levels as well as the very satisfactory condition of the Beznau II nuclear power plant”, but recommended additional safety improvements. 18. On 15 December 1997 the applicants submitted an expert report of 26 November 1997 drawn up by the Institute for Applied Ecology in Darmstadt. According to that report, the licence at issue continued to tolerate the serious safety deficiencies which had already been mentioned in the institute's previous expert reports of 1992 and 1994. It was stated that the modernisation which was both technically possible and had been required in the case of pressurised water reactors of the same generation had not been carried out. All the safety systems installed at the Beznau II nuclear power plant for the purpose of preventing nuclear accidents were very seriously flawed compared with more modern pressurised water reactors in central Europe. The report criticised, for example, the safety systems for their failure to ensure that the back-up components were physically separate and protected from fire; the standard of the emergency cooling system and residual heat removal compared to modern light water pressure reactors in central Europe; the unsatisfactory emergency power supply concerning certain components that were important for the safety of the plant; the design of the emergency power supply itself with regard to back-up and separation from the main system; the emergency feed system not satisfying the standards applying to modern pressurised water reactors; the deficiency of the emergency boronated water system, the purpose of which was to ensure that the pressurised water reactor was switched off until it was cold; the reactor containment in case the active pressure-limiting process could not be carried out successfully; the design of the pressure-limiting systems themselves and the deficiency of the control circuits with regard to the back-up system, physical separation, the main and emergency power supply, the fail-safe mechanism and the production of readings. Moreover, the lack of protection against outside influences rendered the plant much more vulnerable to a plane crash or to action by third parties. In spite of the fact that it was a condition for the granting of the licence that parts of the plant be modernised, no demand had been made for an actual emergency system, such as was required for the more recent western European pressurised water reactors. The report compared the attitude adopted in the last few years to older, Westinghouse-type, first-generation pressurised water reactors by the supervisory authorities in various countries of Europe, the USA and Japan and reached the conclusion that the standards applied in the licensing procedure at issue were far below those applying in other central European countries – i.e. risks were accepted that would no longer be tolerated in other countries. The report further referred to the OSART mission which was conducted in 1995 and the criticism expressed by the experts with regard to the organisational structures and management at the Beznau II power plant. According to the report, such deficiencies not only created an increased risk of accident but gave rise to concern with regard to the effectiveness of damage limitation and emergency protection in the event of serious malfunctions at the power station. 19. From 30 November to 11 December 1998 a team of eleven experts of the International Regulatory Review Team (IRRT) reviewed the working methods of the HSK. During the mission six members of the team also visited the Beznau II nuclear power plant. In their report of January 1999 the reviewers identified “a number of good practices which had been recorded for the benefit of other nuclear regulatory bodies”. They also made recommendations and suggestions which indicated where improvements were necessary or desirable to further strengthen the regulatory body in Switzerland. I. The Federal Expropriation Act 30. By virtue of section 1 of the Federal Expropriation Act of 20 June 1930, expropriations may be carried out “for the purposes of works that are in the interest of the Confederation or of a substantial area of the country and for any other public-interest aim recognised by federal law”. Section 5(1) provides: “The following may be expropriated: rights in rem over land, rights arising from land ownership that concern relations between owners and occupiers of adjacent premises and the rights in personam of tenants or farmers of the property to be expropriated.” 31. With regard to the latter provision, the Federal Court has held: “Actions brought under Articles 679 and 684 to 686 [of the Civil Code] ... are included among the rights which may be expropriated under section 5 ... If the emissions or other allegedly adverse effects result from the construction, in accordance with the applicable law, of a building in the public interest for which land has been expropriated, or are the consequence of using the building for its intended purpose, no private-law action lies for the purpose of obtaining an injunction or compensation. A claim for compensation for expropriation replaces the cause of action under private law and must be made to the expropriations judge, who has jurisdiction not only to assess compensation but also to rule on whether the right ... exists. An expropriating authority's refusal to commence proceedings may be challenged, at last instance, by means of an administrative-law appeal to the Federal Court.” ( ATF, vol. 116 Ib, p. 253) In another judgment the Federal Court held: “By virtue of section 5 ..., rights arising from land ownership that concern relations between owners and occupiers of adjacent premises may be expropriated and be forfeited or restricted, temporarily or permanently, provided that the proportionality principle is complied with ...” ( ATF, vol. 119 Ib, p. 341) 32. Section 5 of the Act has been applied in the case of people living near very busy main roads who were concerned about pollution from exhaust fumes ( ATF, vol. 118 Ib, p. 205). Under the Federal Court's case ‑ law, compensation is awarded if the nuisance was not foreseeable and resulted in substantial damage and if the owner suffered special loss (loc. cit., p. 205). In order to assess foreseeability, it is necessary to determine whether the owner could reasonably have known of the future nuisance when he became the owner of the property ( ATF, vol. 111 Ib, p. 234). | The applicants lived in villages situated in zone 1 in the vicinity of unit II of a nuclear power plant in Beznau (Canton of Aargau). They complained in particular that they had been denied access to a court in respect of the decision of the Federal Council to grant the nuclear power plant an extension of its operating licence and that the procedure followed by the Federal Council had not been fair. They also complained that they had no effective remedy enabling them to complain of a violation of their right to life and their right to respect for physical integrity. |
850 | GPS (Global Positioning System) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1967 and lives in Mönchengladbach. A. Background to the case 6. In spring 1993 the North Rhine-Westphalia Department for the Protection of the Constitution ( Verfassungsschutz ) started a long-term observation of the applicant. The latter was suspected of participation in offences committed by the so-called Anti-Imperialist Cell ( Antiimperialistische Zelle ), an organisation which was pursuing the armed combat abandoned since 1992 by the Red Army Fraction ( Rote Armee Fraktion ), a left-wing extremist terrorist movement. 7. As a consequence, the applicant was occasionally kept under visual surveillance by staff members of the Department for the Protection of the Constitution and the entries to his flats were filmed by video cameras. The Department also intercepted the telephones in the house in which the applicant lived with his mother ( from 26 April 1993 to 4 April 1996) and in a telephone box situated nearby ( from 11 January 1995 until 25 February 1996). Moreover, post addressed to him was opened and checked (from 29 April 1993 to 29 March 1996). 8. Likewise, S., a presumed accomplice of the applicant, was subjected to surveillance measures from 1993. The Hamburg Office for the Protection of the Constitution intercepted telecommunications from the phone in his parents'house as well as his post. Moreover, staff members of the Office occasionally observed him. 9. In October 1995 the Federal Public Prosecutor General instituted investigatory proceedings against the applicant and S. for participation in bomb attacks for which the Anti-Imperialist Cell had claimed responsibility. The Federal Office for Criminal Investigations was in charge of the investigations. 10. Following this, the applicant and S. were kept under visual surveillance by civil servants of the Federal Office for Criminal Investigation, essentially during the weekends between 30 September 1995 and their arrest on 25 February 1996. Moreover, the entry of the house in which the applicant was living with his mother was observed by means of an additional video camera installed by the Federal Office for Criminal Investigations (from October 1995 to February 1996). The telephones in that house, in a telephone box situated nearby and in S.'s flat in Hamburg were tapped by order of the investigating judge at the Federal Court of Justice (13 October 1995 to 27 February 1996). That judge further ordered observation by the police of the applicant and S. as well as of the cars used by them. The Federal Office for Criminal Investigations also observed the entry of S.'s apartment by means of video cameras (October 1995 to February 1996). Moreover, it intercepted the professional radio communication used by S. 11. In October 1995 the Federal Office for Criminal Investigations further installed two transmitters ( Peilsender ) in S.'s car, which the applicant and S. often used together. However, the applicant and S. detected and destroyed the transmitters. As they suspected that their telecommunications were being intercepted and that they were being observed, they never spoke to each other on the phone and succeeded on many occasions in evading visual surveillance by the investigation authorities. 12. In view of this, the Federal Office for Criminal Investigation built a Global Positioning System (GPS) receiver into S.'s car in December 1995 by order of the Federal Public Prosecutor General. Thereby it could determine the location and the speed of the car once per minute. However, the data were only recovered every other day in order to prevent detection of the receiver. This observation lasted until the applicant's and S.'s arrest on 25 February 1996. 13. GPS is a radio navigation system working with the help of satellites. It allows the continuous location, without lapse of time, of objects equipped with a GPS receiver anywhere on earth, with a maximum tolerance of 50 metres at the time. It does not comprise any visual or acoustical surveillance. As opposed to transmitters, its use does not necessitate the knowledge of where approximately the person to be located can be found. B. The proceedings before the Düsseldorf Court of Appeal 14. In the criminal trial opened against the applicant and S., the Düsseldorf Court of Appeal, by a decision of 12 December 1997, dismissed the applicant's objection to the use as evidence of the results obtained by his surveillance with the help of GPS. It found that Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure (see paragraph 29 below) authorised the use of GPS in the instant case. The reliable information thus collected could therefore be used at trial. This information was confirmed by the evidence obtained by the – legal – video and personal surveillance of the defendants. Moreover, contrary to the applicant's submission, the use of GPS did not require a court order because it had been aggregated with other, legal, methods of surveillance. According to the Code of Criminal Procedure, surveillance via GPS did not have to be ordered by a judge, as opposed to measures interfering more profoundly with the right to self-determination in the sphere of information ( Recht auf informationelle Selbstbestimmung ). Whether or not a surveillance measure could be ordered in addition to measures already in place was a question of proportionality of the additional measure in question. 15. On 1 September 1999 the Düsseldorf Court of Appeal convicted the applicant, inter alia, of attempted murder and of four counts of causing an explosion and sentenced him to thirteen years'imprisonment. It found that the applicant and S., who had been the only members of the so-called Anti ‑ Imperialist Cell since spring 1995, had placed bombs in front of the houses of members or former members of Parliament and in front of the Peruvian Honorary Consulate between January and December 1995. 16. The Court of Appeal noted that the applicant had availed himself of his right to remain silent when faced with the charges and that S. had admitted taking part in the bomb attacks only in general terms, without giving any details. However, circumstantial evidence obtained in the course of the surveillance measures taken against them proved that they had committed the offences of which they had been found guilty. 17. In particular, the Court of Appeal found that for the bomb attack carried out following the GPS surveillance of S.'s car, it had been shown that the car had been parked close to the scene of the crime on the day the offence was committed and on a few days prior to it. Moreover, the car had been located close to the places where the defendants had photocopied, hidden and later posted letters claiming responsibility for the offence and close to sites in forests where the investigating authorities later found hiding places with material necessary for the construction of the bomb. This evidence was corroborated by information obtained by other methods of surveillance, in particular, the video surveillance of the entry of the applicant's home and the visual surveillance of the defendants by staff of the Federal Office for Criminal Investigations. The defendants'participation in the bomb attacks prior to their surveillance with the help of the GPS was proved by the similar execution of the offences as well as the information obtained by the video surveillance of their homes and the interception of telecommunications. C. The proceedings before the Federal Court of Justice 18. In an appeal on points of law the applicant complained, in particular, about the use as evidence at trial of the information obtained by his allegedly illegal surveillance notably with the help of GPS. 19. By a judgment of 24 January 2001 the Federal Court of Justice dismissed the applicant's appeal on points of law as ill-founded. It found that the collection of data by GPS had a legal basis, namely Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. Therefore, the information obtained in this manner could be used in the criminal proceedings against the applicant. 20. In particular, the use of technical locating devices such as the GPS did not interfere with the applicant's home. As the applicant was suspected of offences of considerable gravity, namely participation in bomb attacks committed by a terrorist organisation, the use of GPS was a proportionate interference with his right to respect for his private life (as protected also by Article 8 of the Convention) and his right to self-determination in the sphere of information. Other methods of investigation would have had less prospect of success, as the applicant and S. had often succeeded in evading other measures of observation. 21. Endorsing the reasons given by the Court of Appeal, the Federal Court of Justice further found that the aggregation of several measures of investigation did not necessitate an additional legal basis or make a court order necessary. However, the investigating authorities had to examine whether ordering another measure of surveillance in addition to the measures which were already being taken was still proportionate. In any event, there had not been a total surveillance of the applicant, which alone could violate the principle of proportionality and a person's right to privacy and could raise the issue of exclusion of evidence obtained in this manner from criminal proceedings. 22. The Federal Court of Justice conceded that following a change in the law in the year 2000, Article 163f § 4 of the Code of Criminal Procedure (see paragraph 32 below) provided that any long-term observation lasting for more than one month had to be ordered by a judge, irrespective of whether or not technical means of surveillance were used. The need for a court order did not, however, previously emanate from the Code of Criminal Procedure, constitutional law or Article 8 of the Convention. D. The proceedings before the Federal Constitutional Court 23. The applicant subsequently lodged a complaint with the Federal Constitutional Court. He claimed, in particular, that his surveillance by the North Rhine-Westphalia and Hamburg Offices for the Protection of the Constitution and by the Federal Office for Criminal Investigations from October 1995 until February 1996 and the judgments of the Court of Appeal and the Federal Court of Justice had infringed his right to privacy. Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure could not be considered a sufficiently precise legal basis for his surveillance with the help of GPS. There was no effective judicial control of this measure and the use of several means of surveillance at the same time would have necessitated a separate basis in law. Moreover, the use at trial of the information obtained by the said measures without a basis in law had infringed his right to a fair hearing. 24. On 12 April 2005 the Federal Constitutional Court, having held a hearing, dismissed the applicant's constitutional complaint (file no. 2 BvR 581/01). It found that his complaint was ill-founded in so far as he had complained about the use in the proceedings of evidence obtained by his observation via GPS in addition to other surveillance measures and that these measures were illegal. 25. The surveillance of the applicant with the help of GPS could be based on Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. That provision was constitutional. In particular, the term “special technical means intended for the purpose of surveillance” was sufficiently precise. As opposed to visual or acoustic surveillance, it comprised the location and determination of the whereabouts of a person by observing him or her by technical means such as GPS. The legislator was not obliged to formulate the methods of surveillance in a manner excluding the use of new forensic techniques. However, there was a risk of infringement of the right to self ‑ determination in the sphere of information, that is, the right of the individual to determine the use of data on him or her. Therefore, the legislator had to observe technical progress and, if necessary, safeguard the respect of fundamental rights by the investigating authorities with additional legislative provisions. 26. Moreover, the measure did not disproportionately interfere with the applicant's right to privacy. His surveillance did not destroy the essence of his private life. On the contrary, such surveillance by technical means could in some cases make more serious interferences, such as the interception of communications, unnecessary. Therefore, it was not disproportionate to order the surveillance measure if there was only an initial suspicion of an offence (of considerable gravity) and if other methods of investigation had less prospect of success. Furthermore, the legislator had not been obliged to set up additional safeguards for long-term surveillance – which he later did by adopting Article 163f § 4 of the Code of Criminal Procedure – but could first observe the factual developments in this field. 27. Neither did the legislator have the duty to regulate the use of several surveillance measures at once. Full surveillance of a person by which an exhaustive personal profile could be drawn up would be unconstitutional, but could, as a rule, be prevented by the existing procedural safeguards. However, the Public Prosecutor's Office, when ordering a surveillance measure, had to make sure by proper documentation in the case file and federal registers that it was aware of all other surveillance measures taken against the person concerned at the same time. Furthermore, the legislator had to observe whether, in view of future developments, the existing procedural safeguards were sufficient to grant an effective protection of fundamental rights and to prevent uncoordinated investigation measures by different authorities. 28. In the instant case, the interference with the applicant's rights by his surveillance by GPS was proportionate, notably in view of the gravity of the offences he had been suspected of and the fact that he had evaded other measures of surveillance. The use of several observation measures at the same time had not led to total surveillance. He had been observed with the help of GPS only when he had travelled in S.'s car. Other surveillance measures had basically been used only at weekends and had consisted only to a minor extent of the interception of communications. | The applicant, suspected of involvement in bomb attacks by a left-wing extremist movement, complained in particular that his surveillance via GPS and the use of the data obtained thereby in the criminal proceedings against him had violated his right to respect for private life. |
649 | Freedom of expression | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant, who was born in 1960 and lives in Paris, is a lawyer ( avocat ) and member of the Paris Bar. A. Death of Judge Borrel and subsequent proceedings 10. On 19 October 1995 Mr Bernard Borrel, a judge who had been seconded by France for the year before as a technical adviser to the Djiboutian Minister of Justice, in the context of cooperation agreements between the two States, was found dead 80 kilometres from the city of Djibouti. His half-naked and partially burnt body was lying some 20 metres below a remote road. The investigation by the Djibouti gendarmerie in the days that followed concluded that he had committed suicide by self-immolation. 11. On 7 December 1995 a judicial investigation was opened at the Toulouse tribunal de grande instance to determine the cause of death. Bernard Borrel’s body, which was repatriated and interred in Toulouse, underwent an autopsy on 15 February 1996. The report concluded that the death was not suspicious, although the body’s state of decomposition did not permit a precise cause to be established. 12. On 3 March 1997 Mrs Elisabeth Borrel, the widow of Bernard Borrel and also a judge, disputing the finding of suicide, filed a complaint as a civil party, in her own name and on behalf of her two minor children, against a person or persons unknown for premeditated murder. She appointed the applicant, Mr Morice, to represent her in the proceedings. 13. On 8 and 23 April 1997 two judicial investigations were opened in respect of premeditated murder committed by a person or persons unknown. 14. In a decision of 30 April 1997, the judicial investigation into the cause of death and the two investigations in respect of premeditated murder were joined. 15. On 29 October 1997 the Court of Cassation accepted a request by the applicant to withdraw the case from the Toulouse court and it was transferred to the tribunal de grande instance of Paris, where it was assigned on 12 October 1997 to Ms M., assisted from 7 January 1998 by Mr L.L., both investigating judges, who were to conduct the judicial investigation jointly. 16. On 19 November 1999 a lawyer at the Brussels Bar informed the police that A., a former senior officer and member of the Djiboutian Presidential Guard, who had found asylum in Belgium, had certain revelations to make concerning Judge Borrel. The information thus disclosed was transmitted to the French authorities via Interpol. A judgment of the Versailles Court of Appeal of 28 May 2009 (see paragraph 18 below) records the following sequence of events: Judges M. and L.L. did not reply, owing to the fact that the witness wished to remain anonymous, and the information was not followed up; the witness’s Belgian lawyer thus contacted the applicant, who arranged for the witness to be interviewed by journalists from the daily newspaper Le Figaro and the French TV channel TF1, at the end of December 1999; lastly, it was as a result of the publication and broadcasting of that interview in early January 2000 that Judges M. and L.L. decided to go to Belgium to assist the Belgian investigator in taking evidence from the witness. 17. On 31 January 2000 Judges M. and L.L. interviewed the witness in Brussels. It was subsequently alleged by A. that he had been pressurised and intimidated by Judge M. to withdraw his testimony, those complaints being expressly made in a letter of 2 February 2000 from his lawyer to the Crown Prosecutor. In addition, the witness accused the public prosecutor of Djibouti of having threatened him to make him recant his statement, and alleged that the head of the Djibouti secret services had ordered the head of the Presidential Guard, Captain I., to draft a statement discrediting him. Captain I. confirmed A’s accusations concerning him. 18. Proceedings were brought in France against the public prosecutor of Djibouti and the head of the country’s secret services for the procuring of false evidence, and Judge Borrel’s widow and son, the witness A., Captain I., and a French lawyer, A.M., who was implicated, intervened as civil parties. Evidence was taken from Judge M. in her capacity as witness. The public prosecutor and the head of the secret services of Djibouti were sentenced, respectively, to eighteen and twelve months’ imprisonment, and ordered to pay damages to the civil parties, in a judgment of the Versailles Criminal Court of 27 March 2008, before being acquitted by the Versailles Court of Appeal on 28 May 2009. 19. On 2 February 2000, in the context of the judicial investigation in respect of premeditated murder, three professional unions of judges and prosecutors, namely the Syndicat de la magistrature, the Association professionnelle des magistrats and the Union syndicale des magistrats, applied to be joined to the proceedings as civil parties. 20. On 16 March 2000 the applicant, acting on behalf of Mrs Borrel, requested, firstly, that evidence be taken from the witness, A., in Belgium, and, secondly, that a visit to the scene of the crime in Djibouti, in the presence of the civil parties, be organised. 21. In a decision of 17 March 2000, the investigating judges M. and L.L. accepted the request concerning A., finding that a new interview was absolutely necessary. They refused, however, to agree to a site visit, as such a visit had already been made twice, once in 1999 and again one week before the decision in question, as they did not see “how a visit to the site in the presence of the civil party would, at th[at] stage of the proceedings, be helpful for the discovery of the truth”. They added that during their visit to Djibouti a few days before, they had been accompanied by two experts, including the director of the Paris Institute of Forensic Medicine, adding that the scene had been filmed and photographed on that occasion. 22. The applicant and another lawyer appealed against that decision. They filed their pleadings with the Indictments Division, as did the lawyer acting for the Syndicat de la magistrature, arguing that the last site visit in the presence of an expert could be regarded as a reconstruction from which the civil parties had been excluded, and that the sole aim of the investigation was to demonstrate that the victim had committed suicide. They also requested that the Indictments Division take over the case from the investigating judges and continue the investigation itself. 23. In a judgment of 21 June 2000, the Indictments Division of the Paris Court of Appeal found that after two site visits in the absence of the civil parties, one of which closely resembled a reconstruction, the need to organise an on-site reconstruction in the presence of the civil parties so that they could exercise their rights was indispensable for the discovery of the truth. Accordingly, it set aside the decision of Judges M. and L.L. on that point. In addition, it withdrew the case from them and appointed a new investigating judge, Judge P., to continue the investigation. 24. On 19 June 2007 the Paris public prosecutor, further to the request of the investigating judge then handling the case, on the basis of Article 11, paragraph 3, of the Code of Criminal Procedure, issued a statement to clarify publicly that “whilst suicide had once been the preferred theory, the evidence gathered, especially since 2002, now point[ed] to a criminal act”, adding that the experts’ reports had determined that “Bernard Borrel was lying on the ground when liquids were poured over him in a random manner”. 25. The proceedings are currently still pending. B. Facts related to the “Scientology” case 26. The Minister of Justice, by acts of 29 June and 16 October 2000, referred to the National Legal Service Commission ( Conseil supérieur de la magistrature – “the CSM”), in its capacity as a disciplinary board for judges, certain shortcomings attributable to Judge M. in the judicial investigation into the “Scientology” case for which she was responsible and in which the applicant also represented the civil parties. Judge M. was criticised for not devoting the necessary care and attention to the case file, leaving it practically untouched for five years; for having recourse to a friendly-settlement procedure which went beyond the jurisdiction of an investigating judge; and for not making copies of all the documents in the case file, thus making it impossible to reconstruct the file after its partial disappearance from her chambers. Judge M. requested that the referral to the CSM be declared null and void, particularly on account of the fact that it had been made public by the director of the Minister’s private office at a press conference, even before she had been personally notified of the decision. In parallel, on 18 October 2000, the Indictments Division of the Paris Court of Appeal upheld a request by the applicant for the withdrawal of the “Scientology” case from Judge M. 27. On 4 July 2000, at a general meeting of judges of the Paris tribunal de grande instance, the issue of the disciplinary proceedings against Judge M. was raised, in particular because they had been announced in the press whereas the judge concerned had not been officially informed and the president of that court had not yet been notified. During that meeting a judge, J.M., stated as follows: “We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.]. It is not forbidden to say that Judge [M.] has our support and trust.” 28. The general meeting drafted the following motion, which was adopted unanimously: “The general meeting of judges of the Paris tribunal de grande instance held on 4 July 2000, without disputing the authority conferred on the Minister of Justice to take disciplinary proceedings in the conditions prescribed by law, is surprised to learn from the press that such proceedings have been initiated against Judge [M.], investigating judge in Paris, whereas to date neither the judge herself nor her judicial hierarchy have been officially informed thereof.” 29. In the context of a magazine interview published in July-August 2000, the chair of the Syndicat de la magistrature, a civil party in the Borrel case, criticised the “lack of impartiality on the part of Judge M. in the Borrel and [L.] cases”, adding that the judges who had signed the motion “could not have been unaware that in two sensitive cases, the Borrel case and the [L.] case, her impartiality was seriously called into question”. 30. In a judgment of 5 January 2000, the Paris tribunal de grande instance, in a case brought by the applicant as counsel acting for two civil parties, found the State liable for gross negligence on the part of the courts service on account of the disappearance of the so-called “Scientology” file from the office of Judge M. It awarded damages to the complainants. 31. On 13 December 2001 the CSM dismissed a plea of nullity from Judge M. and, on the merits, while reproaching her for a certain lack of rigour or a failure to keep track of the case sufficiently, did not impose any disciplinary penalty on her. C. Criminal proceedings against the applicant 32. On 1 August 2000 Judge P., who had been appointed to replace Judges M. and L.L., drafted a report in which he noted the following chain of events. In response to the applicant’s request concerning the video ‑ recording made in Djibouti in March 2000 and cited by Judges M. and L.L. in their decision of 17 March 2000, Judge P. replied that it was not in the judicial investigation file and was not registered as an exhibit; on the same day, Judge P. asked Judge M. whether she still had the video-cassette; Judge M. promptly gave him a closed and undated envelope with her name on, showing no sign of having been placed under seal, bearing the address of Judge M. as addressee and that of the public prosecutor of Djibouti as sender; the envelope contained a video-cassette and a handwritten card with the letter head of the public prosecutor of Djibouti, these items then being taken by Judge P. and placed under seal. The public prosecutor’s card addressed to Judge M. read as follows (translated from French). “Hi Marie-Paule, As agreed, I am sending you the video-cassette of the Goubet site visit. I hope the picture will be clear enough. I watched the show Sans aucun doute [Without any doubt] on TF1. I noticed once again how Mrs Borrel and her lawyers were determined to carry on orchestrating their manipulation. I’ll call you soon. Say hello to Roger if he’s back, and also to J.C. [D.]. Speak to you soon. Best wishes, DJAMA.” 33. On 6 September 2000 the applicant and another lawyer, Mr L. de Caunes, wrote a letter to the Minister of Justice to complain of the facts recorded in the report of the investigating judge P. dated 1 August 2000, on account of the “conduct of Judges [M.] and [L.L.], [which was] completely at odds with the principles of impartiality and fairness”. They asked for an “investigation to be carried out by the General Inspectorate of Judicial Services into the numerous shortcomings which [had] been brought to light in the course of the judicial investigation”. They stated that the form and substance of the card addressed by the public prosecutor of Djibouti to Judge M. revealed a complicit intimacy that was surprising and regrettable, as the public prosecutor was directly subordinate to the executive, of which the head was “suspected very openly and very seriously of being the instigator of Bernard Borrel’s murder”. 34. Furthermore, extracts from that letter were included, together with statements made by the applicant to the journalist, in an article in the newspaper Le Monde published on 7 September and dated Friday 8 September 2000. The article read as follows. “THE LAWYERS acting for the widow of Judge Bernard Borrel, who was found dead in Djibouti in 1995 in mysterious circumstances, vigorously criticised Judge [M.], from whom the case was withdrawn last spring, in a letter to the Minister of Justice on Wednesday 6 September. The judge is accused by Olivier Morice and Laurent de Caunes of ‘conduct which is completely at odds with the principles of impartiality and fairness’, apparently having failed to register an item for the case file and to transmit it to her successor. The two lawyers, who had not been authorised to go to Djibouti in March for a second site visit, asked on 1 August to consult the video-recording made on that occasion. Judge [P.], who has been handling the case since its withdrawal from [Judges M. and L.L.] on 21 June, told them that the cassette was not in the case file and was not ‘registered in the file as an exhibit’. The judge immediately called his colleague, who gave him the cassette later that day. ‘Judges [M.] and [L.L.] had been sitting on the cassette’, protests Olivier Morice, ‘and had forgotten to place it under seal, for over a month after the case was withdrawn from them’. To make matters worse, in the envelope Judge [P.] found a handwritten and rather friendly note from Djama [S.], the public prosecutor of Djibouti. ‘Hi Marie-Paule, as agreed I am sending you the video-cassette of the Goubet site visit’ the note reads. ‘I hope the picture will be clear enough. I watched the show Sans aucun doute (Without any doubt) on TF1. I noticed once again how Mrs Borrel and her lawyers were determined to carry on orchestrating their manipulation. I’ll call you soon. Say hello to Roger [L.L.] if he’s back, and also to J.-C. [D.] [deputy public prosecutor in Paris]. Speak to you soon. Best wishes, Djama.’ Mrs Borrel’s lawyers are obviously furious. ‘This letter shows the extent of the connivance between the Djibouti public prosecutor and the French judges’, exclaims Mr Morice, ‘and one cannot but find it outrageous’. They have asked Elisabeth Guigou for an investigation by the General Inspectorate of Judicial Services. The Minister of Justice had not received their letter on Thursday 7 September. Judge [M.] already has disciplinary proceedings pending against her before the National Legal Service Commission (CSM), in particular for the disappearance of documents from the investigation file in the Scientology case (see Le Monde of 3 July).” 35. Judges M. and L.L. filed a criminal complaint as civil parties against a person or persons unknown for false accusations. On 26 September 2000 the Paris public prosecutor’s office opened a judicial investigation for false accusations. On 5 November 2000 the Court of Cassation appointed an investigating judge in Lille, who, on 15 May 2006, made a discontinuance order, which was upheld by the Investigation Division of the Douai Court of Appeal on 19 June 2007. 36. In addition, on 12 and 15 October 2000 Judges M. and L.L. filed a criminal complaint as civil parties against the publication director of Le Monde, the journalist who had written the article and the applicant, accusing them of public defamation of a civil servant. 37. In an order of 2 October 2001, an investigating judge at the Nanterre tribunal de grande instance committed the applicant and the two other defendants to stand trial before the Criminal Court on account of the following passages from the impugned article. “The judge [M.] is accused by Olivier Morice and Laurent de Caunes of ‘conduct which is completely at odds with the principles of impartiality and fairness’, apparently having failed to register an item for the case file and to transmit it to her successor.” “‘Judges [M.] and [L.L.] had been sitting on the cassette’, protests Olivier Morice, ‘and had forgotten to place it under seal, for over a month after the case was withdrawn from them’.” “To make matters worse, in the envelope Judge [P.] found a handwritten and rather friendly note.” “Mrs Borrel’s lawyers are obviously furious. ‘This letter shows the extent of the connivance between the Djibouti public prosecutor and the French judges’, exclaims Mr Morice, ‘and one cannot but find it outrageous’.” 38. In a judgment of 4 June 2002, the Nanterre Criminal Court dismissed the pleas of nullity which had been raised by the defendants, in particular on the basis of the immunity provided for by section 41 of the Freedom of the Press Act of 29 July 1881 on judicial proceedings and pleadings filed in court, on account of the fact that the article had merely reiterated the content of the letter to the Minister of Justice. The court took the view, on that point, that the letter in question was not an act of referral to the CSM and that its content had to be regarded as purely informative, with the result that it was not covered by immunity. 39. The court then observed that the defamatory nature of the comments had not been “meaningfully disputed” and that the applicant stood by the content of his allegations, which he considered to be well founded. Turning then to each of the impugned comments, to ascertain whether the charge of defamation was made out, and to assess the significance and seriousness thereof, the court first noted that “the accusation of impartiality [ sic ] and unfairness proffered against a judge clearly constitute[d] a particularly defamatory allegation, because it [was] tantamount to calling into question her qualities, her moral and professional rigour, and ultimately her capacity to discharge her duties as a judge”. It further took the view that the comments on the failure to forward the video-cassette were also defamatory as they suggested that there had at least been some negligence or a form of obstruction. As to the term “connivance”, the court found that the use of that word clearly and directly suggested that the judges had been collaborating with an official of a foreign country to act in a biased and unfair manner, this being exacerbated by the implication in the article that there was serious evidence of such conduct, because the Minister of Justice had been requested to initiate an investigation. 40. As to the applicant’s guilt, the court found that it was, in any event, established that the journalist had become privy to the letter sent to the Minister of Justice through his own sources and that he had sought confirmation and comments from the applicant, with whom he had had a telephone conversation. As the applicant had been aware that his statements to the journalist would be made public, the court took the view that he was therefore guilty of complicity in public defamation, unless the court were to accept his offer to prove the veracity of the allegations or his defence of good faith. However, the court dismissed the applicant’s various offers to bring evidence, pointing out that in order to be accepted “the evidence to be adduced must be flawless and complete and relate directly to all the allegations found to be defamatory”. As to the applicant’s good faith, it found that “the highly virulent attacks on the professional and moral integrity of the investigating judges ... clearly overstepped the right of legitimately permissible free criticism” and that the profound disagreements between Mrs Borrel’s lawyers and the investigating judges could not justify a total lack of prudence in their remarks. 41. As regards the sanction, the court expressly took into account the applicant’s status as a lawyer and the fact that he could therefore not have been “unaware of the significance and seriousness of totally imprudent comments”, finding it appropriate that “the sanction for such criminal misconduct had to be a fine of a sufficiently high amount”. It sentenced him to a fine of 4,000 euros (EUR), and ordered him to pay, jointly with the other defendants, EUR 7,500 in damages to each of the two judges in question, together with EUR 3,000 in costs. It also ordered the insertion of a notice in the newspaper Le Monde, of which the cost was to be shared between the defendants. An appeal was lodged against the judgment by the applicant, his co-defendants, the two judges with civil-party status and the public prosecutor. 42. In a judgment of 28 May 2003, the Versailles Court of Appeal found that the summonses issued on the basis of L.L.’s complaint were null and void and that his action was time-barred, and it acquitted the three defendants under that head. It further upheld the convictions of the three defendants in respect of Judge M.’s complaint, together with the amount of the fine imposed on the applicant and the damages awarded to the judge, to whom it also awarded EUR 5,000 in court costs, in addition to the order to publish a notice in the daily newspaper Le Monde. Both the applicant and Judge L.L. appealed on points of law. 43. On 12 October 2004 the Court of Cassation quashed the judgment in its entirety and remitted the case to the Rouen Court of Appeal. 44. On 25 April 2005 the Rouen Court of Appeal took note of the fact that the three defendants waived any claim of nullity in respect of the summonses issued on the basis of Judge L.L.’s complaint and it adjourned the proceedings on the merits. 45. On 8 June 2005 the President of the Criminal Division of the Court of Cassation dismissed applications from the three defendants and the civil parties for the immediate examination of their appeals on points of law. 46. In a judgment of 16 July 2008, after a number of adjournments and the holding of a hearing on 30 April 2008, the Rouen Court of Appeal upheld the dismissal by the Nanterre tribunal de grande instance of the immunity objection, and also upheld the defendants’ convictions for complicity in the public defamation of civil servants in the applicant’s case. It ordered the applicant to pay a fine of EUR 4,000 and upheld the award of EUR 7,500 in damages to each of the judges, to be paid by the defendants jointly, together with the order to publish a notice in the daily newspaper Le Monde. As regards costs, it ordered the three defendants to pay EUR 4,000 to Judge L.L. and the applicant alone to pay EUR 1,000 to Judge M. 47. In its reasoning, the Court of Appeal firstly took the view that to say that in handling a case an investigating judge had shown “conduct which [was] completely at odds with the principles of impartiality and fairness”, or in other words conduct incompatible with professional ethics and her judicial oath, was a particularly defamatory accusation as it was tantamount to accusing her of lacking integrity and of deliberately failing in her duties as a judge, thus questioning her capacity to discharge those duties. It further found that the applicant’s comments concerning the delay in forwarding the video-cassette amounted to accusing the judges of negligence in the handling of the case, thereby discrediting the professional competence of the judges and implying that the latter had deliberately kept hold of the cassette after the case was withdrawn from them, with the intention, at least, of causing obstruction. Allegedly, it was only because the lawyers had raised the matter with Judge P., followed by that judge’s request to Judge M., that the item of evidence had finally been obtained on 1 August 2000. The Court of Appeal added that such assertions, attributing to those judges a deliberate failure to perform the duties inherent in their office and a lack of integrity in the fulfilment of their obligations, constituted factual accusations which impugned their honour and reputation. It found this to be all the more true as the applicant, referring to the handwritten card from the public prosecutor of Djibouti to Judge M., had emphasised this atmosphere of suspicion and the negligent conduct of the judges by stating that this document proved the extent of the “connivance” between them. The court noted, on that point, that the word “connivance” represented in itself a serious attack on the honour and reputation of Judge M. and the public prosecutor of Djibouti. It merely served to confirm the defamatory nature of the previous comments, especially as the article added that the applicant had asked the Minister of Justice for an inspection by the General Inspectorate of Judicial Services. 48. The Court of Appeal thus concluded that the comments were defamatory and that the veracity of the defamatory allegations had not been established. It took the view, on that point, that there was no evidence that Judge L.L. had been in possession of the video-cassette or that he had even been informed of its arrival, so he was not concerned by the delay in forwarding it; that the judgment of the Indictments Division of 21 June 2000, withdrawing the case from the two judges, merely expressed disapproval of the judges’ refusal to hold a reconstruction in the presence of the civil parties; that it had not been established that the video-cassette had reached Judge M. before the case was withdrawn from her or that it had been in her possession when the investigation was transferred to Judge P.; that there was nothing to suggest that Judge M. had acted with obstructive intent or that she had been unfair in her handling of the cassette; that the handwritten card addressed to Judge M. from the public prosecutor of Djibouti did not prove that there was any connivance between them, as friendly greetings and the use of the familiar form “ tu ” in contacts between legal officials did not necessarily reflect a complicit intimacy, and the possibility that they shared the same opinion did not prove any complicity or connivance on the part of the French judges such as to undermine the judicial investigation procedure, regardless of the conduct of the Djibouti public prosecutor in this case; that the letter from the lawyer representing witness A. addressed to the Crown Prosecutor in Belgium, complaining that Judge M. had put pressure on his client, was not sufficiently conclusive in itself to show that Judge M. had accepted the theory of suicide or that she was hindering the establishment of the truth, even though Judge M. had acknowledged that she had told the Belgian police that A. was an unreliable witness; and, lastly, that the numerous press articles carried no evidential weight as regards the conduct and attitude of the judges in their handling of the case. 49. As regards the applicant’s defence of good faith, the Court of Appeal to which the case had been remitted noted that he had referred to the duties that were inherent in his profession and the results obtained in the case since the withdrawal of the case from Judges M. and L.L., as shown by the public prosecutor’s press statement of 19 June 2007; he had further relied on the judgment of the Douai Court of Appeal, also of 19 June 2007, upholding the decision to discontinue the proceedings started by the judges’ complaint alleging false accusation and on the conviction of the Djibouti public prosecutor by the Criminal Court of Versailles on 27 March 2008 for procuring a person to give false evidence. 50. It observed that at the time the offence in question was committed, on 7 September 2000, the applicant had secured the withdrawal of the case from Judges M. and L.L. and that Judge P. had been in possession of the video-cassette since 1 August 2000. It took the view that the applicant had engaged in highly virulent attacks on the professional and moral integrity of the two judges, in comments that seriously questioned their impartiality and intellectual honesty, clearly overstepping the right to free criticism and no longer being of any procedural relevance. The Court of Appeal further found: that the decision in the applicant’s favour to discontinue the proceedings for false accusation initiated against him as a result of the judges’ complaint was not incompatible with his bad faith; that the excessive nature of the comments made by the applicant revealed the intensity of the conflict between him and the two judges, in particular Judge M., and were tantamount to an ex post facto settling of scores, as shown by the publication of the article on 7 September 2000, after the Indictments Division of the Paris Court of Appeal had received, on 5 September, the file in the “Scientology” case, in which Judge M. was suspected of being responsible for the disappearance of evidence; and that this showed, on the part of the applicant, personal animosity and an intention to discredit those judges, in particular Judge M., with whom he had been in conflict in various cases, thus ruling out any good faith on his part. 51. The applicant, his two co-defendants and Judge M. all lodged an appeal on points of law against that judgment. In his pleadings, the applicant relied, as his first ground of appeal, on Article 10 of the Convention and the immunity provided for in section 41 of the Freedom of the Press Act, arguing that this provision sought to safeguard defence rights and protected lawyers in respect of any oral or written comments made in the context of any type of judicial proceedings, in particular of a disciplinary nature. As his second ground of appeal, he relied on Article 10 of the Convention, asserting that: the impugned comments concerned a case that had been receiving media coverage for some time, involving the suspicious circumstances in which a French judge seconded to Djibouti had been found dead “from suicide” and the questionable manner in which the judicial investigation had been conducted, with a clear bias against the civil party’s theory of premeditated murder; having regard to the importance of the subject of general interest in the context of which the comments had been made, the Court of Appeal was not entitled to find that he had overstepped the bounds of his freedom of expression; the Court of Appeal had not examined his good faith in the light of the comments that had been published in Le Monde, but in relation to the content of the letter to the Minister of Justice and it was not entitled to make any assessment concerning the judges’ conduct criticised therein; unless all lawyers were to be banned from speaking about pending cases, no personal animosity could be inferred from the mere fact that he had had a disagreement with one of the judges in the context of another set of proceedings; good faith was not subject to the current situation or to the fact that the issue had been “made good” by the withdrawal of the case from the judges, the lack of necessity of the comments not being incompatible with good faith; lastly, opinions expressed regarding the functioning of a fundamental institution of the State, as was the case regarding the handling of a criminal investigation, were not subject to a duty of prudence or limited to theoretical and abstract criticism, but could be personal where they had a sufficient factual basis. 52. The appeals were initially supposed to be heard by a reduced bench of Section I of the Criminal Division of the Court of Cassation, as shown by the reporting judge’s report of 21 July 2009, the Court of Cassation’s online workflow for the case, and the three notices to parties issued on 15 September, and 14 and 27 October 2009, respectively, the last two of those documents having been sent after the date of the hearing. Consequently, Mr J.M. (see paragraph 27 above), who had become a judge at the Court of Cassation, assigned to the Criminal Division, and who was neither the Division President, nor the senior judge ( doyen ), nor the reporting judge, was not supposed to sit in that case. 53. In a judgment of 10 November 2009, the Court of Cassation, in a formation eventually consisting of ten judges, including Mr J.M., dismissed the appeals on points of law. As regards the grounds raised by the applicant, it found that the objection of jurisdictional immunity had been validly rejected, as the fact of making public the letter to the Minister of Justice did not constitute an act of referral to the CSM and was not part of any proceedings involving the exercise of defence rights before a court of law. As to the various arguments expounded under the applicant’s second ground of appeal, it took the view that the Court of Appeal had justified its decision, finding as follows: “[W]hile everyone has the right to freedom of expression and while the public has a legitimate interest in receiving information on criminal proceedings and on the functioning of the courts, the exercise of those freedoms carries with it duties and responsibilities and may be subject, as in the present case where the admissible limits of freedom of expression in criticising the action of judges have been overstepped, to such restrictions or penalties as are prescribed by law and are necessary in a democratic society for the protection of the reputation and rights of others.” | This case concerned the conviction of the applicant, a lawyer, for complicity with a newspaper in the defamation of investigating judges. |
837 | Searches and seizures carried out at a lawyer’s offices or home | I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant, who was born in 1949, is a lawyer practising in Salzburg. He is the owner and general manager of the second applicant, a holding company which is, inter alia, the sole owner of the limited liability company Novamed. 6. On 30 August 2000 the Salzburg Regional Court ( Landesgericht ), upon a request for legal assistance ( Rechtshilfeersuchen ) by the Naples Public Prosecutor ’ s Office, issued a warrant to search the seat of the applicant company and Novamed. Both companies have their seats at the first applicant ’ s law office. 7. The court noted that in the course of pending criminal proceedings concerning, inter alia, illegal trade in medicaments against a number of persons and companies in Italy, invoices addressed to Novamed, owned 100% by the applicant company, had been found. It therefore ordered the seizure of all business documents revealing contacts with the suspected persons and companies. A. The search of the applicants ’ premises and seizure of documents and data 8. On 10 October 2000 the search of the seat of the applicant company, which is also the first applicant ’ s law office, was carried out by eight to ten officers of the Economic Crimes Department of the Salzburg police ( Wirtschaftspolizei ) and data- securing experts ( Datensicherungsexperten ) of the Federal Ministry of the Interior. 9. One group of officers searched the law office for files concerning Novamed or Bicos in the presence of the first applicant and a representative of the Salzburg Bar Association. All documents were shown to the first applicant and the representative of the Bar Association before seizure. 10. Whenever the first applicant objected to an immediate examination of a document seized it was sealed and deposited at the Salzburg Regional Court as required by Article 145 of the Code of Criminal Procedure ( Strafprozeßordnung – see paragraph 33 below). All seized or sealed documents were listed in a search report which was signed by the applicant and the officers who had carried out the search. 11. Simultaneously, another group of officers examined the first applicant ’ s computer systems and copied several files to disks. According to his statement before the Independent Administrative Panel (see paragraph 25 below), the IT specialist who normally serviced the computer systems was called upon to provide some technical assistance but left again after about half an hour. The representative of the Bar Association was informed about the search of the computer systems and was also temporarily present. When the officers had terminated the search of the computer systems, they left without drawing up a search report and, apparently, also without informing the first applicant about the results of the search. 12. Later the same day the police officers involved in the search of the applicants ’ electronic data drew up a data securing report ( Datensicherungsbericht ). Apart from a number of technical details concerning the first applicant ’ s computer systems, the report states that a complete copy of the server was not made. The search was carried out using the names of the companies involved and the names of the suspects in the Italian proceedings. A folder named Novamed containing ninety files was found plus one further file containing one of the search items. All the data were copied to disks. In addition, the deleted items were retrieved and numerous files which corresponded to the search items were found and also copied to disks. 13. On 13 October 2000 the investigating judge opened the sealed documents in the presence of the first applicant. Some documents were copied and added to the file while others were returned to the first applicant on the ground that their use would impinge on the first applicant ’ s duty of professional secrecy. 14. The disks containing the secured data were transmitted to the Economic Crimes Department who printed out all the files. Both the disks and printouts were then handed over to the investigating judge. B. The applicants ’ complaint to the Review Chamber 15. On 28 November 2000 and 11 December 2000 respectively, the first applicant and the applicant company lodged complaints with the Review Chamber ( Ratskammer ) of the Salzburg Regional Court. 16. They submitted that the first applicant was the owner and manager of the applicant company but also the lawyer for a number of companies in which the latter held shares. They complained that the search of their premises and the seizure of electronic data had infringed the first applicant ’ s right and duty of professional secrecy under section 9 of the Lawyers Act ( Rechtsanwaltsordnung ) in conjunction with Article 152 of the Code of Criminal Procedure as some officers had proceeded unobserved to examine and subsequently copy electronic data. The applicants submitted that the data contained the same information as the documents which had been examined in the presence of the first applicant. However, with regard to the electronic data, the first applicant had not been given an opportunity to object and have the disks sealed. 17. They further submitted that the search report did not mention that part of the search, nor did it mention which electronic data had been copied and seized. Furthermore, the search report had only been signed by three of the officers, but did not mention the names of all the officers who had been present at the search, omitting in particular the names of the data- securing experts of the Federal Ministry of the Interior. 18. On 31 January 2001 the Review Chamber dismissed the applicants ’ complaints. 19. It observed that the first applicant ’ s computer data had been searched with the aid of particular search criteria. Files which corresponded to these search criteria had been copied to disks which had been seized. 20. However, there was no ground for holding that this seizure circumvented Article 152 of the Code of Criminal Procedure: the search of the first applicant ’ s law office concerned exclusively documents which the first applicant had in his possession as an organ of Novamed and Bicos, and therefore did not concern a lawyer-client relationship. 21. It further observed that the search of the first applicant ’ s law office was based on a lawful search warrant which included the search and seizure of electronic data. The procedural safeguards laid down in Article 145 of the Code of Criminal Procedure, namely the right of the person concerned to object to an immediate examination and to request the deposit of data seized with the Regional Court and a decision by the Review Chamber, also applied to the search of electronic data. 22. In the present case, however, the officers had, whenever asked, complied with the first applicant ’ s requests to seal certain documents and deposit them with the Regional Court. Some of these documents had been returned by the court in order to ensure compliance with the applicant ’ s duty of professional secrecy. 23. It therefore concluded that the applicants ’ complaints were unfounded. The Review Chamber ’ s decision was served on 7 February 2001. C. The applicants ’ complaint to the Salzburg Independent Administrative Panel 24. In the meantime, on 20 and 21 November 2000 respectively, the first applicant and the applicant company lodged complaints with the Salzburg Independent Administrative Panel ( Unabhängiger Verwaltungssenat ). They submitted that the search and seizure of electronic data in the first applicant ’ s office had been unlawful. 25. On 2 April, 11 June and 11 July 2001 the Independent Administrative Panel held public hearings at which it heard evidence from a number of witnesses. The IT specialist in charge of the first applicant ’ s computer facilities said that he had been called and had arrived at the office when the search of the premises was already under way. He had left again after half an hour. The officer in charge of the search stated that the first applicant had been informed about the search of his computer data. Two other officers stated that the search of the first applicant ’ s computer systems had not begun until the arrival of his IT specialist and that the representative of the Bar Association had been temporarily present. This was confirmed by the representative of the Bar Association. 26. On 24 October 2001 the Salzburg Independent Administrative Panel dismissed the applicants ’ complaints. It found that they concerned alleged breaches of certain provisions of the Code of Criminal Procedure regulating searches. The officers who had carried out the search had possibly not fully complied with these provisions. They had, however, acted on the basis of the search warrant and not exceeded the instructions of the investigating judge. The search was therefore imputable to the court. Consequently, a review of lawfulness did not fall within the competence of the Independent Administrative Panel. | The applicants, a limited liability company and its owner and general manager, who was also a lawyer, complained about their business premises being searched and electronic data seized in the context of criminal proceedings concerning illegal trade in medicine. They unsuccessfully complained to the domestic courts that the search and seizure procedure in respect of the electronic data had violated the first applicant’s professional secrecy obligations. |
795 | Right to a fair trial (Article 6 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1956 in Ruse, where he lived until December 2002 and where his half-sister and his father’s second wife, his only close relatives, also live. On 20 December 1990 a panel of occupational physicians declared him unfit to work. The panel found that as a result of being diagnosed with schizophrenia in 1975, the applicant had a 90% degree of disablement but did not require assistance. He is in receipt of an invalidity pension on that account. A. The applicant’s placement under partial guardianship and placement in a social care home for people with mental disorders 10. On an unspecified date in 2000, at the request of the applicant’s two relatives, the Ruse regional prosecutor applied to the Ruse Regional Court ( Окръжен съд ) for a declaration of total legal incapacity in respect of the applicant. In a judgment of 20 November 2000, the court declared the applicant to be partially incapacitated on the grounds that he had been suffering from simple schizophrenia since 1975, and that his ability to manage his own affairs and interests and to realise the consequences of his own acts had been impaired. The court found that the applicant’s condition was not so serious as to warrant a declaration of total incapacity. It observed, in particular, that during the period from 1975 to 2000 he had been admitted to a psychiatric hospital on several occasions. The court took into account an expert medical report produced in the course of the proceedings and interviewed the applicant. Furthermore, according to certain other people it interviewed, the applicant had sold all his possessions, begged for a living, spent all his money on alcohol and became aggressive whenever he drank. 11. That judgment was upheld in a judgment of 12 April 2001 by the Veliko Tarnovo Court of Appeal ( Апелативен съд ) on an appeal by the applicant, and was subsequently transmitted to the Ruse Municipal Council on 7 June 2001 for the appointment of a guardian. 12. Since the applicant’s family members had refused to take on any guardianship responsibilities, on 23 May 2002 the Municipal Council appointed Ms R.P., a council officer, as the applicant’s guardian until 31 December 2002. 13. On 29 May 2002 R.P. asked the Ruse social services to place the applicant in a social care home for people with mental disorders. She appended to the application form a series of documents including a psychiatric diagnosis. Social services drew up a welfare report on the applicant, noting on 23 July 2002 that he was suffering from schizophrenia, that he lived alone in a small, run-down annexe to his half-sister’s house and that his half-sister and his father’s second wife had stated that they did not wish to act as his guardian. The requirements for placement in a social care home were therefore deemed to be fulfilled. 14. On 10 December 2002 a welfare-placement agreement was signed between R.P. and the social care home for adults with mental disorders near the village of Pastra in the municipality of Rila (“the Pastra social care home”), an institution under the responsibility of the Ministry of Labour and Social Policy. The applicant was not informed of the agreement. 15. Later that day, the applicant was taken by ambulance to the Pastra social care home, some 400 km from Ruse. Before the Court, he stated that he had not been told why he was being placed in the home or for how long; the Government did not dispute this. 16. On 14 December 2002, at the request of the Director of the Pastra social care home, the applicant was registered as having his home address in the municipality of Rila. The residence certificate stated that his address had been changed for the purpose of his “permanent supervision”. According to the most recent evidence submitted in February 2011, the applicant was still living in the home at that time. 17. On 9 September 2005 the applicant’s lawyer requested the Rila Municipal Council to appoint a guardian for her client. In a letter dated 16 September 2005, she was informed that the Municipal Council had decided on 2 February 2005 to appoint the Director of the Pastra social care home as the applicant’s guardian. B. The applicant’s stay in the Pastra social care home 1. Provisions of the placement agreement 18. The agreement signed between the guardian R.P. and the Pastra social care home on 10 December 2002 (see paragraph 14 above) did not mention the applicant’s name. It stated that the home was to provide food, clothing, medical services, heating and, obviously, accommodation, in return for payment of an amount determined by law. It appears that the applicant’s entire invalidity pension was transferred to the home to cover that amount. The agreement stipulated that 80% of the sum was to be used as payment for the services provided and the remaining 20% put aside for personal expenses. According to the information in the case file, the applicant’s invalidity pension, as updated in 2008, amounted to 130 Bulgarian levs (BGN – approximately 65 euros (EUR)). The agreement did not specify the duration of the provision of the services in question. 2. Description of the site 19. The Pastra social care home is located in an isolated area of the Rila mountains in south-west Bulgaria. It is accessible via a dirt track from the village of Pastra, the nearest locality 8 km away. 20. The home, built in the 1920s, comprises three buildings, where its residents, all male, are housed according to the state of their mental health. According to a report produced by the Social Assistance Agency in April 2009, there were seventy-three people living in the home, one was in hospital and two had absconded. Among the residents, twenty-three were entirely lacking legal capacity, two were partially lacking capacity and the others enjoyed full legal capacity. Each building has a yard surrounded by a high metal fence. The applicant was placed in block 3 of the home, reserved for residents with the least serious health problems, who were able to move around the premises and go alone to the nearest village with prior permission. 21. According to the applicant, the home was decaying, dirty and rarely heated in winter and, as a result, he and the other residents were obliged to sleep in their coats during winter. The applicant shared a room measuring 16 sq. m with four other residents and the beds were practically side by side. He had only a bedside table in which to store his clothes, but he preferred to keep them in his bed at night for fear that they might be stolen and replaced with old clothes. The home’s residents did not have their own items of clothing because clothes were not returned to the same people after being washed. 3. Diet and hygiene and sanitary conditions 22. The applicant asserted that the food provided at the home was insufficient and of poor quality. He had no say in the choice of meals and was not allowed to help prepare them. 23. Access to the bathroom, which was unhealthy and decrepit, was permitted once a week. The toilets in the courtyard, which were unhygienic and in a very poor state of repair, consisted of holes in the ground covered by dilapidated shelters. Each toilet was shared by at least eight people. Toiletries were available only sporadically. 4. Recent developments 24. In their memorial before the Grand Chamber, the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived, including the sanitary facilities. The home now had central heating. The diet was varied and regularly included fruit and vegetables as well as meat. Residents had access to television, books and games. The State provided them all with clothes. The applicant did not dispute these assertions. 5. Journeys undertaken by the applicant 25. The home’s management kept hold of the applicant’s identity papers, allowing him to leave the home only with special permission from the Director. He regularly went to the village of Pastra. It appears that during the visits he mainly provided domestic help to villagers or carried out tasks at the village restaurant. 26. Between 2002 and 2006 the applicant returned to Ruse three times on leave of absence. Each trip was authorised for a period of about ten days. The journey cost BGN 60 (approximately EUR 30), which was paid to the applicant by the home’s management. 27. The applicant returned to Pastra before the end of his authorised period of leave after his first two visits to Ruse. According to a statement made by the Director of the home to the public prosecutor’s office on an unspecified date, the applicant came back early because he was unable to manage his finances and had no accommodation. 28. The third period of leave was authorised from 15 to 25 September 2006. After the applicant failed to return on the scheduled date, the Director of the home wrote to the Ruse municipal police on 13 October 2006, asking them to search for the applicant and transfer him to Sofia, where employees of the home would be able to collect him and take him back to Pastra. On 19 October 2006 the Ruse police informed the Director that the applicant’s whereabouts had been discovered but that the police could not transfer him because he was not the subject of a wanted notice. He was driven back to the social care home on 31 October 2006, apparently by staff of the home. 6. Opportunities for cultural and recreational activities 29. The applicant had access to a television set, several books and a chessboard in a common room at the home until 3 p.m., after which the room was kept locked. The room was not heated in winter and the residents kept their coats, hats and gloves on when inside. No other social, cultural or sports activities were available. 7. Correspondence 30. The applicant submitted that the staff at the social care home had refused to supply him with envelopes for his correspondence and that, as he did not have access to his own money, he could not buy any either. The staff would ask him to give them any sheets of paper he wished to post so that they could put them in envelopes and send them off for him. 8. Medical treatment 31. It appears from a medical certificate of 15 June 2005 (see paragraph 37 below) that, following his placement in the home in 2002, the applicant was given anti-psychotic medication (carbamazepine (600 mg)) under the monthly supervision of a psychiatrist. 32. In addition, at the Grand Chamber hearing the applicant’s representatives stated that their client had been in stable remission since 2006 and had not undergone any psychiatric treatment in recent years. C. Assessment of the applicant’s social skills during his stay in Pastra and conclusions of the psychiatric report drawn up at his lawyer’s request 33. Once a year, the Director of the social care home and the home’s social worker drew up evaluation reports on the applicant’s behaviour and social skills. The reports indicated that the applicant was uncommunicative, preferred to stay on his own rather than join in group activities, refused to take his medication and had no close relatives to visit while on leave of absence. He was not on good terms with his half-sister and nobody was sure whether he had anywhere to live outside the social care home. The reports concluded that it was impossible for the applicant to reintegrate into society, and set the objective of ensuring that he acquired the necessary skills and knowledge for social resettlement and, in the long term, reintegration into his family. It appears that he was never offered any therapy to that end. 34. The case file indicates that in 2005 the applicant’s guardian asked the Municipal Council to grant a social allowance to facilitate his reintegration into the community. Further to that request, on 30 December 2005 the municipal social assistance department carried out a “social assessment” ( социална оценка ) of the applicant, which concluded that he was incapable of working, even in a sheltered environment, and had no need for training or retraining, and that in those circumstances he was entitled to a social allowance to cover the costs of his transport, subsistence and medication. On 7 February 2007 the municipal social assistance department granted the applicant a monthly allowance of BGN 16.50 (approximately EUR 8). On 3 February 2009 the allowance was increased to BGN 19.50 (approximately EUR 10). 35. In addition, at his lawyer’s request, the applicant was examined on 31 August 2006 by Dr V.S., a different psychiatrist from the one who regularly visited the social care home, and by a psychologist, Ms I.A. The report drawn up on that occasion concluded that the diagnosis of schizophrenia given on 15 June 2005 (see paragraph 37 below) was inaccurate in that the patient did not display all the symptoms of that condition. It stated that, although the applicant had suffered from the condition in the past, he had not shown any signs of aggression at the time of the examination but rather a suspicious attitude and a slight tendency towards “verbal aggression”; that he had not undergone any treatment for the condition between 2002 and 2006; and that his health had visibly stabilised. The report noted that no risk of deterioration of his mental health had been observed and stated that, in the opinion of the home’s Director, the applicant was capable of reintegrating into society. 36. According to the report, the applicant’s stay in the Pastra social care home was very damaging to his health and it was desirable that he should leave the home, otherwise he was at risk of developing “institutionalisation syndrome” the longer he stayed there. The report added that it would be more beneficial to his mental health and social development to allow him to integrate into community life with as few restrictions as possible, and that the only aspect to monitor was his tendency towards alcohol abuse, which had been apparent prior to 2002. In the view of the experts who had examined the applicant, the behaviour of an alcohol-dependent person could have similar characteristics to that of a person with schizophrenia; accordingly, vigilance was required in the applicant’s case and care should be taken not to confuse the two conditions. D. The applicant’s attempts to obtain release from partial guardianship 37. On 25 November 2004 the applicant, through his lawyer, asked the public prosecutor’s office to apply to the Regional Court to have his legal capacity restored. On 2 March 2005 the public prosecutor requested the Pastra social care home to send him a doctor’s opinion and other medical certificates concerning the applicant’s disorders in preparation for a possible application to the courts for restoration of his legal capacity. Further to that request, the applicant was admitted to a psychiatric hospital from 31 May to 15 June 2005 for a medical assessment. In a certificate issued on the latter date, the doctors attested that the applicant showed symptoms of schizophrenia. As his health had not deteriorated since he had been placed in the home in 2002, the regime to which he was subject there had remained unchanged. He had been on maintenance medication since 2002 under the monthly supervision of a psychiatrist. A psychological examination had revealed that he was agitated, tense and suspicious. His communication skills were poor and he was unaware of his illness. He had said that he wanted to leave the home at all costs. The doctors did not express an opinion either on his capacity for resettlement or on the need to keep him in the Pastra social care home. 38. On 10 August 2005 the regional prosecutor refused to bring an action for restoration of the applicant’s legal capacity on the grounds that, in the opinion of the doctors, the Director of the Pastra social care home and the home’s social worker, the applicant was unable to cope on his own, and that the home, where he could undergo medical treatment, was the most suitable place for him to live. The applicant’s lawyer challenged the refusal to bring the action, arguing that her client should have the opportunity to assess by himself whether or not, having regard to the living conditions at the home, it was in his interests to remain there. She pointed out that the enforced continuation of his stay in the home, on the pretext of providing him with treatment in his own interests, amounted in practice to a deprivation of liberty, a situation that was unacceptable. A person could not be placed in an institution without his or her consent. In accordance with the legislation in force, anyone under partial guardianship was free to choose his or her place of residence, with the guardian’s agreement. The choice of residence was therefore not a matter within the competence of the prosecution service. Despite those objections, the regional prosecutor’s refusal was upheld on 11 October 2005 by the appellate prosecutor, and subsequently on 29 November 2005 by the Chief Public Prosecutor’s Office at the Supreme Court of Cassation. 39. On 9 September 2005 the applicant, through his lawyer, asked the mayor of Rila to bring a court action for his release from partial guardianship. In a letter of 16 September 2005, the mayor of Rila refused his request, stating that there was no basis for such an action in view of the medical certificate of 15 June 2005, the opinions of the Director and the social worker, and the conclusions reached by the public prosecutor’s office. On 28 September 2005 the applicant’s lawyer applied to the Dupnitsa District Court for judicial review of the mayor’s decision, under Article 115 of the Family Code (“the FC”) (see paragraph 49 below). In a letter of 7 October 2005, the District Court stated that since the applicant was partially lacking legal capacity he was required to submit a valid form of authority certifying that his lawyer was representing him, and that it should be specified whether his guardian had intervened in the procedure. On an unspecified date the applicant’s lawyer submitted a copy of the form of authority signed by the applicant. She also requested that the guardian join the proceedings as an interested party or that an ad hoc representative be appointed. On 18 January 2006 the court held a hearing at which the representative of the mayor of Rila objected that the form of authority was invalid as it had not been countersigned by the guardian. The guardian, who was present at the hearing, stated that he was not opposed to the applicant’s application, but that the latter’s old-age pension was insufficient to meet his needs and that, accordingly, the Pastra social care home was the best place for him to live. 40. The Dupnitsa District Court gave judgment on 10 March 2006. As to the admissibility of the application for judicial review, it held that, although the applicant had instructed his lawyer to represent him, she was not entitled to act on his behalf since the guardian had not signed the form of authority. However, it held that the guardian’s endorsement of the application at the public hearing had validated all the procedural steps taken by the lawyer, and that the application was therefore admissible. As to the merits, the court dismissed the application, finding that the guardian had no legitimate interest in contesting the mayor’s refusal, given that he could apply independently and directly for the applicant to be released from partial guardianship. Since the judgment was not subject to appeal, it became final. 41. Lastly, the applicant asserted that he had made several oral requests to his guardian to apply for his release from partial guardianship and to allow him to leave the home. However, his requests had always been refused. I. State liability 62. The State and Municipalities Responsibility for Damage Act 1988 ( Закон за отговорността на държавата и общините за вреди – title amended in 2006) provides in section 2(1) that the State is liable for damage caused to private individuals as a result of a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis. 63. Section 1(1) of the same Act provides that the State and municipalities are liable for damage caused to private individuals and other legal entities as a result of unlawful decisions, acts or omissions by their own authorities or officials while discharging their administrative duties. 64. In a number of decisions, various domestic courts have found this provision to be applicable to the damage suffered by prisoners as a result of poor conditions or inadequate medical treatment in prison and have, where appropriate, partly or fully upheld claims for compensation brought by the persons concerned (реш. от 26.01.2004 г. по гр. д. № 959/2003, ВКС, IV г. о. and реш. № 330 от 7.08.2007 г. по гр. д. № 92/2006, ВКС, IV г. о.). 65. There are no court decisions in which the above position has been found to apply to allegations of poor living conditions in social care homes. 66. Moreover, it appears from the domestic courts’ case-law that, under section 1(1) of the Act in question, anyone whose health has deteriorated because bodies under the authority of the Ministry of Health have failed in their duty to provide a regular supply of medication may hold the administrative authorities liable and receive compensation (реш. № 211 от 27.05.2008 г. по гр. д. № 6087/2007, ВКС, V г. о.). 67. Lastly, the State and its authorities are subject to the ordinary rules on tortious liability for other forms of damage resulting, for example, from the death of a person under guardianship while absconding from a social care home for adults with a mental deficiency, on the ground that the staff of the home had failed to discharge their duty of permanent supervision (реш. № 693 от 26.06.2009 г. по гр. д. № 8/2009, ВКС, III г. о.). J. Arrest by the police under the Ministry of the Interior Act 2006 68. Under this Act, the police are, inter alia, authorised to arrest anyone who, on account of severe mental disturbance and through his or her conduct, poses a threat to public order or puts his or her own life in manifest danger (section 63(1)-(3)). The person concerned may challenge the lawfulness of the arrest before a court, which must give an immediate ruling (section 63(4)). 69. Furthermore, the police’s responsibilities include searching for missing persons (section 139(3)). K. Information submitted by the applicant about searches for persons who have absconded from social care homes for adults with mental disorders 70. The Bulgarian Helsinki Committee conducted a survey of police stations regarding searches for people who had absconded from social care homes of this type. It appears from the survey that there is no uniform practice. Some police officers said that when they were asked by employees of a home to search for a missing person, they carried out the search and took the person to the police station, before informing the home. Other officers explained that they searched for the person but, not being empowered to perform an arrest, simply notified the staff of the home, who took the person back themselves. L. Statistics submitted by the applicant on judicial proceedings concerning deprivation of legal capacity 71. The Bulgarian Helsinki Committee obtained statistics from 8 regional courts on the outcome of proceedings for restoration of legal capacity between January 2002 and September 2009. During this period 677 persons were deprived of legal capacity. Proceedings to restore capacity were instituted in 36 cases: 10 of them ended with the lifting of the measure; total incapacitation was changed to partial incapacitation in 8 cases; the applications were rejected in 4 cases; the courts discontinued the proceedings in 7 cases; and the other cases are still pending. | Placed under partial guardianship against his will and admitted to a social care home for people with mental disorders, the applicant complained in particular that he could not apply to a court to seek release from partial guardianship. |
Subsets and Splits